Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV080778
SIMONS, J.
Plaintiff Margaret A. Seltzer (Seltzer) appeals an order granting a special motion to strike her complaint filed by defendant Paul W. Windust (Windust) pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16) and the trial court’s award of attorney fees to Windust. Seltzer contends the trial court erred in concluding that her four causes of action against Windust arise from speech or petitioning activity, where part of Windust’s alleged conduct was the negotiation of a settlement agreement in a prior case. Our decision in the present case is guided by our decision in a closely related prior appeal involving Attorney Michael Barnes (Barnes), who negotiated the settlement with Windust in Seltzer v. Barnes (2010) 182 Cal.App.4th 953. There, this court held that negotiation of the settlement was protected activity under the anti-SLAPP statute. Further, we held there was no probability of success because the litigation privilege (Civ. Code, § 47, subd. (b)) shielded Barnes from liability. Seltzer has not shown the result should be different in this appeal, and we affirm the dismissal of Seltzer’s causes of action against Windust. We also affirm the trial court’s award of attorney fees.
SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)
All undesignated section references are to the Code of Civil Procedure.
On July 13, 2010, this court granted the parties’ stipulated motion to consolidate appeal Nos. A124078 and A125734, consolidating the appeals for purposes of oral argument and decision.
FACTUAL AND PROCEDURAL BACKGROUND
This summary is largely taken from our decision in Seltzer v. Barnes, supra, 182 Cal.App.4th 953.
Seltzer, an attorney, owns a condominium unit located in a Marin City condominium development known as “The Headlands View Homes.” The development is managed by The Headlands Homeowners Association (Association), and a management company hired by the Association, the Eugene Burger Management Corporation Association (Burger).
In March 2003, Seltzer commenced an action entitled Seltzer v. Eugene Burger Management Corp. (Super. Ct. Marin County, 2005, No. CV030970), against the Association and Burger (the Burger Action). The action, among other things, sought to enjoin a range of alleged unlawful conduct on the part of the development’s management. The Association filed a cross-complaint alleging claims based on Seltzer’s damaging and destroying trees without the Association’s permission (the trespass claims) and claims arising from Seltzer’s failure to pay assessments (the assessment claims).
Seltzer tendered the cross-complaint to the provider of her homeowner insurance policies, Allstate Insurance Company (Allstate). Allstate retained the law firm of Barnes to provide advice concerning coverage for the cross-complaint under Seltzer’s insurance policies. Through Barnes, Allstate informed Seltzer it would defend her against the cross-complaint, subject to a reservation of rights to deny coverage. Allstate took the position that the assessment claims in the cross-complaint are not covered under Seltzer’s policies. Allstate retained Richard Reynolds and his law firm Bennett, Samuelson, Reynolds, and Allard (Reynolds) as Seltzer’s defense counsel.
Barnes negotiated a settlement of the trespass claims with Windust, counsel for the Association. Allstate agreed to pay the Association $37,500 and the Association agreed to dismiss its fourth and fifth causes of action against Seltzer and any other claims for “bodily injury, ” “personal injury, ” or “property damage.” The settlement did not encompass the assessment claims. Allstate and the Association signed a “Settlement and Release Agreement” and, on September 24, 2007, the Association filed a request for dismissal in accordance with the agreement; the dismissal was entered that same day.
In February 2008, Seltzer filed the instant complaint (Complaint) against the Association, Burger, Allstate, Barnes, and Windust. The Complaint alleges that Allstate and the other defendants colluded to defraud Seltzer, defeat her coverage under her insurance policies, and convert the proceeds of her insurance policies to the Association. In particular, following secret negotiations, Allstate and the Association entered into an agreement in September 2007 to dismiss the claims that Allstate considered covered under Seltzer’s insurance policies, in order to justify Allstate’s denial of a defense on the remainder of the cross-complaint and to provide the Association with funds to continue its litigation against Seltzer. Seltzer alleged four causes of action against Windust for breach of fiduciary duties, financial fraud by fiduciaries, fraud by attorneys, and intentional infliction of emotional distress, based in part on his participation in the negotiations that resulted in the partial settlement in the Burger Action. Seltzer also sued the Association, Burger, and Windust for, among other things, diverting assessment trust funds for unlawful purposes instead of for the maintenance of the development’s commonly owned property.
Windust filed a special motion to strike the claims against him pursuant to section 425.16. A declaration from Windust detailed the negotiations resulting in the partial settlement of the cross-complaint in the Burger Action. Specifically, in May 2007, pursuant to section 998, the Association offered to settle the cross-complaint in exchange for $47,500. Barnes and Windust, on behalf of Allstate and the Association, had telephone conversations and exchanged e-mails in an attempt to settle the cross-complaint. In July 2007, the Association agreed to dismiss the entire cross-complaint against Seltzer in exchange for a $37,500 payment from Allstate. In August 2007, Barnes informed Windust that Seltzer had objected to the settlement and Allstate could not agree to any settlement that would waive Seltzer’s right to seek her “ ‘costs’ ” from the Association. After further negotiations, the Association agreed to dismiss the two causes of action relating to the alleged destruction of trees by Seltzer, as well as all claims for bodily injury, property damages, and personal property, in exchange for a $37,500 payment from Allstate.
The trial court granted Windust’s section 425.16 motion to strike the four causes of action against him. Windust filed a motion for attorney fees and costs pursuant to section 425.16, subdivision (c). The trial court ultimately ordered Seltzer to pay Windust attorney fees and costs in the amount of $37,420.86. On June 8, 2009, the trial court entered judgment in favor of Windust, including the award of attorney fees and costs.
The trial court denied special motions to strike filed by Barnes and Allstate. In Seltzer v. Barnes, supra, 182 Cal.App.4th 953, this court reversed the denial of the motion filed by Barnes.
Because the issues presented in this case closely mirror those presented in Seltzer v. Barnes, supra, 182 Cal.App.4th 953, we borrow liberally from that decision in the analysis herein.
I. Summary of Section 425.16
“In 1992, the Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily ‘to chill the valid exercise of... freedom of speech and petition for redress of grievances’ and ‘to encourage continued participation in matters of public significance.’ (§ 425.16, subd. (a).) The section authorizes a special motion to strike ‘[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States [Constitution] or [the] California Constitution in connection with a public issue....’ (§ 425.16, subd. (b)(1).) The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.] The statute directs the trial court to grant the 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).)” (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395-1396, fn. omitted (Gallimore).)
“The statutory language establishes a two-part test. First, it must be determined whether the plaintiff’s cause of action arose from acts by the defendant in furtherance of the defendant’s right of petition or free speech in connection with a public issue. [Citation.] ‘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).’ [Citation.] Assuming this threshold condition is satisfied, it must then be determined that the plaintiff has established a reasonable probability of success on his or her claims at trial.” (Gallimore, supra, 102 Cal.App.4th at p. 1396.) “Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review independently on appeal. [Citations.]” (Ibid.) The statute provides that section 425.16 “shall be construed broadly.” (§ 425.16, subd. (a).)
II. “Arising From”
“A defendant who files a special motion to strike bears the initial burden of demonstrating that the challenged cause of action arises from protected activity. [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669 (Peregrine Funding).) In City of Cotati v. Cashman (2002) 29 Cal.4th 69, the California Supreme Court explained: “[T]he statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘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)....’ [Citations.]” (Id. at p. 78.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Id. at p. 79.)
As Barnes contended in Seltzer v. Barnes, supra, 182 Cal.App.4th 953, Windust contends the causes of action against him fall under section 425.16, subdivision (e)(2), which includes statements made in connection with civil court litigation. (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 4-5.) Cases construing the subdivision hold that “a statement is ‘in connection with’ litigation under section 425.16 subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266, fn. omitted; see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 [courts have adopted “a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16”].)
Under section 425.16, subdivision (e)(2), an act in furtherance of a person’s right of petition or free speech includes “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.”
Seltzer’s causes of action against Windust are based in part on his negotiations with Barnes to reach a settlement agreement between the Association and Allstate relating to the cross-complaint. The Complaint alleges that this agreement was an “illegal contract... whereby the Association accepted a bribe in the amount of $37,500 to reconfigure the pleadings in the Burger Action in a manner that Barnes believed would retroactively defeat coverage and would provide a pretext to refuse to pay outstanding defense expense and to discontinue providing policy benefits to [Seltzer]. This was a sham transaction designed to defraud [Seltzer]....” The Complaint and Seltzer’s brief on appeal also refer to other conduct by Windust, most significantly the alleged “diversion” of assessment payments made by Seltzer to the Association, but Seltzer does not contend that any of her causes of action against Windust are based on such other alleged conduct to such a degree that the allegations regarding the settlement negotiations may be considered incidental. (See Peregrine Funding, supra, 133 Cal.App.4th at p. 672 [“ ‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’ ”].) Indeed, Seltzer concedes that her causes of action arise, in part, from the settlement negotiations, which she characterizes as “collusion with Barnes to eliminate [her] insurance coverage in exchange for the payment of a false insurance claim which was used to pay [Windust’s] law firm to continue to prosecute the cross-complaint.”
In Seltzer v. Barnes, supra, 182 Cal.App.4th at pages 963-964, this court concluded that settlement negotiations are an exercise of the right to petition and communications during such negotiations are in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2). We cited, among other cases, GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908 (GeneThera), which held that “[a]n attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike. [Citation.]” (See Seltzer v. Barnes, at p. 963.) We held that, as in GeneThera, Seltzer’s claims against Barnes were based on his communication of an offer to settle and the content of the offer. (Seltzer v. Barnes, at p. 963.) The same is true in this case: Seltzer’s claims against Windust are based on his communications regarding the Association’s settlement negotiation positions.
In Seltzer v. Barnes, supra, 182 Cal.App.4th at pages 964-967, this court rejected Seltzer’s contention that Barnes’s communications during the settlement negotiations were outside the scope of section 425.16 because the negotiations were unlawful. We concluded that Selzter had failed to “ ‘conclusively demonstrate[]’ ” that the settlement negotiations were conducted in an unlawful manner. (Seltzer v. Barnes, at p. 967, quoting Flatley v. Mauro (2006) 39 Cal.4th 299, 319.) Neither has Seltzer in the present case conclusively demonstrated any illegality removing Windust’s alleged conduct from the scope of section 425.16 at the first step of the analysis. (See Seltzer v. Barnes, at pp. 964-967.)
For the stated reasons, as further detailed in Seltzer v. Barnes, supra, 182 Cal.App.4th 953, the trial court properly concluded that Seltzer’s claims against Windust are within the scope of section 425.16. Because the allegations regarding the settlement negotiations are sufficient to satisfy the “arising from” step of the anti-SLAPP analysis, we need not consider whether Seltzer’s allegations regarding the diversion of assessment payments also involve conduct protected under section 425.16.
We requested and received supplemental briefing from the parties regarding the impact of Seltzer v. Barnes, supra, 182 Cal.App.4th 953, on the present appeal. In her supplemental briefing letter, Seltzer included arguments regarding the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.) that were not presented to the trial court. Those arguments relate to Windust’s alleged actions involving assessment payments by Seltzer to the Association. Because the allegations regarding Windust’s conduct in settlement negotiations provide sufficient basis to affirm the trial court’s order of dismissal, we need not consider Seltzer’s allegations regarding the assessment payments. In any event, we would not consider any arguments not presented to the trial court. (See Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800 [appellate courts generally will not consider issues or theories raised for the first time on appeal unless the appellant has demonstrated in its opening brief that the question is one of law to be applied to undisputed facts].)
III. Probability of Prevailing
In order to establish a probability of prevailing for purposes of section 425.16, subdivision (b)(1), “ ‘the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) However, a defendant that advances an affirmative defense to the plaintiff’s claims bears the burden of proof on the defense. (Peregrine Funding, supra, 133 Cal.App.4th at p. 676.)
In the present case, Windust contends, among other things, that the litigation privilege (Civil Code section 47, subdivision (b)) shields his negotiations with Barnes from liability; that Seltzer’s claims based on the diversion of assessments are barred by the statute of limitations; and that he owed Seltzer no fiduciary duties. We need not address those arguments, because Seltzer has failed to demonstrate a probability of prevailing on any of her causes of action.
It was not Windust’s burden to show that Seltzer cannot demonstrate a probability of prevailing; rather, Seltzer was obligated to “explain how [her] evidence substantiates the elements of [her] claim[s].” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239 (Tuchscher); see also Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 [considering each element of malicious prosecution claim in determining whether plaintiff showed probability of prevailing]; StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1398 [“StaffPro had to demonstrate a probability of prevailing with respect to each of the elements of its malicious prosecution action”].)
In her appellate briefing, Seltzer addressed the specific defenses raised by Windust, but she failed to set forth the elements of her claims against Windust, much less to explain how her evidence substantiates the elements of those claims. Because Seltzer has failed to present a reasoned argument that she has a probability of prevailing on any of her claims, the issue has been forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) The trial court properly granted the motion to strike Seltzer’s causes of action against Windust.
Seltzer’s March 15, 2010 “Motion to Strike Portions of Respondent’s Brief” is denied. We also deny as irrelevant to the issues before us Seltzer’s September 15, 2009, request for judicial notice of a lower court order in United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617.
IV. Attorney Fees
Seltzer contends the trial court erred in awarding Windust attorney fees and costs in the amount of $37,420.86, pursuant to section 425.16, subdivision (c).
Section 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (Stats. 2005, ch. 535, § 1, eff. Oct. 5, 2005.) “The language of the anti-SLAPP statute is mandatory; it requires a fee award to a defendant who brings a successful motion to strike. Accordingly, our Supreme Court has held that under this provision, ‘any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.’ [Citation.]” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 490 (Cabral).) At the same time, “a defendant who brings a successful special motion to strike is entitled only to reasonable attorney fees, and not necessarily to the entire amount requested. [Citations.]” (Id. at p. 491.) Fees should be awarded only for attorney time spent prosecuting the motion to strike and fees proceedings, rather than all time spent on the case. (See, e.g., S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) We review the trial court’s ruling for abuse of discretion. (Cabral, at p. 491.) “The trial court’s fee determination ‘ “ ‘will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” ’ [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.) “ ‘The judgment of the trial court is presumed correct; all intendments and presumptions are indulged to support the judgment; conflicts in the declarations must be resolved in favor of the prevailing party, and the trial court’s resolution of any factual disputes arising from the evidence is conclusive.’ [Citation.]” (Ibid.)
Section 425.16, subdivision (c) was amended effective January 1, 2010. The amendments are not relevant to this case.
The main thrust of Seltzer’s objections to the attorney fee award is her assertion that Windust’s counsel sought, and the trial court awarded, fees for all of counsel’s time spent defending Windust, instead of for only the time spent on the section 425.16 motion and fee proceedings. It is true that portions of Windust’s initial filing were ambiguous: the motion for attorney fees stated that Windust had incurred fees and costs “in an amount of $28,260.86 as a result of [Seltzer’s] filing of this action, ” and a declaration from Attorney Adam Koss averred that 138.1 hours had “been spent on this matter” by different attorneys. However, Windust did not submit billing records to the trial court, and the court gave Windust leave to provide such records, specifying that “these [records] should include time entries for particular tasks directly connected with the anti-SLAPP motion.” Koss’s subsequent declaration with the billing records attached explained that the records had been redacted to remove privileged information and items that “are not related to... Windust’s successful anti-SLAPP motion.”
The ambiguous language in the motion and the Koss declaration appears to have been an oversight: the declaration of Attorney Summer Smith averred that “a collective of 127.7 attorney hours were expensed in the handling of this matter relative to the special motion to strike” (plus 10.4 hours on the attorney fee motion), and Windust’s proposed order refers to “attorneys’ fees reasonably associated with the Special Motion to Strike.”
The billing records support the conclusion that the trial court did not include in its award hours unrelated to the anti-SLAPP motion. Many billing entries are entirely redacted, reflecting work by Windust’s attorneys for which Windust did not seek a fee award. (Cf. Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1325 [“The record suggests [the defendant] sought to transfer to the opposing parties the cost of every minute counsel expended on the case, whether or not anti-SLAPP work was involved.... Counsel’s willingness to flout the statutory restriction on the scope of anti-SLAPP fee claims justified the trial court in taking a jaundiced view of the fee request.”].) Moreover, the billing records undermine Seltzer’s contention that Windust’s fee request was grossly inflated, because the records reflect 201.1 hours devoted, according to the Koss declaration, to the anti-SLAPP motion and fee proceedings. But Windust requested, and was awarded, fees for only 180.1 hours of work. Because Seltzer has not demonstrated that Windust’s attorney fee request included hours unrelated to the anti-SLAPP motion and fee proceedings, or was otherwise inflated, we conclude the trial court did not abuse its discretion in finding the fee request reasonable.
It was proper for the trial court to award fees for the time spent by Windust’s counsel on the motion to quash, which was part of the fee proceedings. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 [“an award of fees may include not only the fees incurred with respect to the underlying claim, but also the fees incurred in enforcing the right to mandatory fees”]; Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22 [holding that defendants could seek their attorney fees incurred in opposing a stay of enforcement of a judgment awarding attorney fees under § 425.16, subd. (c)].)
Seltzer also contends the trial court erred in granting Windust’s motion to quash her subpoenas to depose the three attorneys who represented Windust. Seltzer served the subpoenas after the filing of Windust’s motion for attorney fees, which was supported by attorney declarations but not billing records. Windust moved to quash the subpoenas on the grounds that Seltzer had not shown sufficient justification to depose opposing counsel and the documents requested were privileged. The trial court granted the motion to quash, reasoning, “For purposes of opposing [Windust’s] attorney fee motion, [Seltzer’s] demands are framed far broader than necessary. Nor has she shown the ‘extremely good cause’ required to depose opposing counsel. (See, e.g., Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1496, and Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1662-1663.)” Regarding Windust’s fee request, the court stated: “The requested hourly rates of $195.00 and $225.00 are reasonable in this community. However, from the conclusory declarations of [Windust’s] counsel, the court cannot determine that the claimed total of nearly 130 hours spent on the anti-SLAPP motion was reasonable. To avoid denial of the motion, [Windust] may file and serve copies of billing statements or records.... For each of the three attorneys, these should include time entries for particular tasks directly connected with the anti-SLAPP motion.”
In Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487 (Spectra-Physics), the court stated: “The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; [and] (3) the information is crucial to the preparation of the case. [Citations.]” (Id. at p. 1496.) This is because, among other things, “[a]ttorney depositions chill the attorney-client relationship, impede civility and easily lend themselves to gamesmanship and abuse.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1563 (Carehouse).) Seltzer contends the Spectra-Physics and Carehouse decisions are distinguishable because in those cases the depositions related to the merits of the claims in the cases, rather than to an attorney fee request. She contends she has a right to discovery regarding Windust’s fee request, and that discovery can include deposing opposing counsel. However, none of Seltzer’s cases considered an objection to the propriety of deposing opposing counsel, as opposed to the more general issue of whether discovery is appropriate in the context of a motion for attorney fees. (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 712 [“The only grounds upon which [the] defendants moved to prohibit the taking of depositions was that they were sought after the judgment of abandonment and that depositions are not permissible on a motion to tax costs.”]; see also Ketchum v. Moses, supra, 24 Cal.4th at p. 1140 [stating that attorney had been deposed]; State of California v. Meyer (1985) 174 Cal.App.3d 1061, 1075 [same].)
The trial court’s order granting the motion to quash is reviewed for abuse of discretion. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.) “[A] reviewing court generally will not substitute its opinion for that of the trial court and will not set aside the trial court’s decision unless ‘there was “no legal justification” for the order granting or denying the discovery in question.’ [Citation.]” (Ibid.) In this case, the trial court reasonably could have concluded that the attorney depositions sought by Seltzer raised concerns analogous, even if not identical, to the concerns discussed in the Spectra-Physics and Carehouse decisions. Thus, it was reasonable for the court to require Seltzer to make a particularized showing of necessity. We need not determine whether the test applied in Spectra-Physics and Carehouse literally applies in this context. Seltzer has not shown it was improper for the trial court to require some heightened showing to justify deposing opposing counsel regarding a fee request, and she has made no particularized showing of necessity for the depositions, especially following the trial court’s request that Windust file and serve billing records supporting his fee request. Notably, attorney declarations may alone be sufficient to support an award of fees (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375; Martino v. Denevi (1986) 182 Cal.App.3d 553, 559); declarations supported by billing records are clearly adequate support for a fee request. Seltzer has not shown the trial court abused its discretion in granting Windust’s motion to quash.
Under section 425.16, subdivision (c), Windust is also entitled to recover its costs and attorney fees on appeal. (Tuchscher, supra, 106 Cal.App.4th at p. 1248.)
DISPOSITION
The trial court’s orders granting Windust’s section 425.16 motion to strike and awarding attorney fees are affirmed. Windust shall recover his costs and attorney fees on appeal, the amount of which shall be determined by the trial court.
We concur. JONES, P.J., BRUINIERS, J.
We do not consider Seltzer’s contention, made for the first time in her reply brief, that the attorney fee award is improper because Windust’s anti-SLAPP motion did not achieve the goals of the statute. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“ ‘... points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before’ ”].)