Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06AS05181
BUTZ, J.Plaintiff and appellant Geoffrey E. Woo-Ming, representing himself, appeals from two judgments of dismissal after the trial court granted special motions to strike Woo-Ming’s amended complaint by defendants Eric Graves and Chris Gordon. (Code Civ. Proc., § 425.16.) We shall affirm the judgments.
Undesignated statutory references are to the Code of Civil Procedure.
FACTUAL BACKGROUND
We draw our summary of facts from the papers submitted in connection with defendants’ special motions to strike:
Special motions to strike are also commonly referred to as “anti-SLAPPâ€� motions. SLAPP stands for “strategic lawsuit against public participation.â€� (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) We shall refer to an “anti-SLAPPâ€� motion as a “special motion to strikeâ€�—the language used in the statute (§ 425.16, subd. (b)(1)).
On April 14, 2005 (all further unspecified calendar references are to that year), Woo-Ming appeared before the Honorable Trena Burger-Plavan, purporting to act as counsel for himself and Forceps Medical Associates (collectively, Forceps), a partnership, in Sacramento County Superior Court case No. 04AS03155, Forceps Medical Associates et al. v. HYOX Centers et al. (Forceps v. HYOX). Judge Burger-Plavan advised Woo-Ming at an order to show cause hearing that he could not represent Forceps because he was not licensed to practice law, and that if the partnership wanted to proceed with the action it had to retain counsel. When no counsel for Forceps was obtained by June 2, the court ordered the action dismissed.
Woo-Ming moved for reconsideration and was told again at a hearing on August 11, that he needed counsel in order for the action to proceed. On September 8, Attorney Chris Gordon, an associate in the law firm of Stone & Graves, appeared to advise the court that he would be substituting in as attorney for Woo-Ming and Forceps. Based on this representation, the court vacated the dismissal.
On September 19, a substitution of attorney was filed in which Gordon’s law firm, Stone & Graves, was substituted as attorney of record for Woo-Ming and Forceps.
On December 1, Woo-Ming met with Attorney Gordon and told him he changed his mind about Gordon acting as attorney for Woo-Ming and the partnership. In a letter to Woo-Ming dated December 9, 2005, Gordon stated that the Stone & Graves law firm had previously substituted in as attorney for Forceps pursuant to Judge Burger-Plavan’s order, but that Woo-Ming had recently advised the firm that, after further legal research, he again wished to represent the partnership Forceps. The letter continued, “This letter will also confirm that I have advised you on at least two occasions that by substituting yourself in as attorney of record for [Forceps] you are violating the above referenced Court Order wherein the Court ordered you to have legal counsel for the partnership. . . . We have not advised you to substitute yourself in as attorney of record, but rather, have warned you of the effects that your actions may have. Nevertheless, you have desired to substitute yourself in as attorney of record and by so doing you are violating the Court’s order and therefore you may very well suffer adverse consequences.� (Italics added.)
The December 9 letter was countersigned by Woo-Ming under the caption, “I, Geoffrey Woo-Ming, acknowledge that I have received this letter and that I have read and understand the contents herein.�
On or about December 14, a substitution of attorney was submitted to the court, substituting “Geoffrey E. Woo-Ming, M.D., Managing Partner� as attorney of record for Forceps. The substitution contains a signature that purports to be Woo-Ming’s and is countersigned by Attorney Graves on December 9. Under the box captioned “I accept this substitution,� there appears a signature that also purports to be Woo-Ming’s, with an earlier date of December 5.
A copy of this substitution form is attached to this opinion as “Exhibit A.� The written date of acceptance of the substitution is “12/05/09,� which appears to be the transposed date of 12/09/05.
On December 29, Judge Burger-Plavan struck the substitution of attorney and issued an order to show cause against Woo-Ming for two acts of contempt of court. Woo-Ming was arraigned on January 13, 2006, on the contempt charge of “attempting to substitute himself in to represent Forceps Medical Associates after being expressly told by the Court on two different occasions that counsel must represent Forceps and that he could not represent Forceps.�
A contempt trial was held on June 9, 2006, wherein both Woo-Ming and subpoenaed former Attorneys Graves and Gordon testified regarding the December 9 substitution. On July 28, 2006, Judge Burger-Plavan announced her decision, finding that Attorneys Graves and Gordon had been truthful and that Woo-Ming had been untruthful in his testimony. The judge found Woo-Ming in contempt of court and fined him $1,000 for each act, for a total of $2,000.
PROCEDURAL HISTORY
In December 2006, Woo-Ming filed a complaint against Attorneys Graves and Gordon. The first cause of action appears to charge Gordon with fraudulent overbilling. It alleges that he billed for several hundred dollars worth of telephone conferences to a U.S. Homes employee, when in fact “he had never spoken with the employee but just left messages.�
The remaining three causes of action focus on the events surrounding the substitution of attorney. Woo-Ming alleged that he personally substituted in as attorney for the partnership based on assurances by Graves that it was proper to do so. He also charged defendants with postdating his signature on the substitution form “to make it appear that he had been counseled before signing the document,� and that defendant Gordon “fraudulently induced plaintiff to sign a letter that he had been so counseled by saying this was a necessary formality.�
Graves filed a special motion to strike the complaint under section 425.16. He accompanied his motion with a transcript of the hearing at which Judge Burger-Plavan found Woo-Ming in contempt. The trial court granted the motion, finding “[p]laintiff’s causes of action for fraud arise out of testimony given by Graves, plaintiff’s former attorney, at a contempt hearing after Graves had been relieved as attorney of record. This is protected speech under [section] 425.16[, subdivision] (e). Plaintiff has no probability of prevailing on his claims as Judge Burger-Plavan has already found him to be untruthful and defendant to be truthful.� The court noted it had no jurisdiction over Gordon, since he had not been served.
Woo-Ming then filed a first amended complaint (FAC) charging both Graves and Gordon with fraud and legal malpractice. The FAC alleges that Woo-Ming hired defendants to recover a $10,000 deposit from U.S. Homes, and that it took them “six weeks� to do so. The FAC restates Woo-Ming’s earlier charges of overbilling for phone conferences and alleges that he was overcharged for legal services by $2,200. The remainder of the FAC essentially repeats earlier allegations of fraud and document doctoring in connection with the substitution of attorney.
Both Graves and Gordon filed special motions to strike the FAC. The court granted the motions. Noting that it had previously granted Graves’s motion to strike the original complaint, the court observed that both the original and the amended complaints contained similar allegations of fraud and malpractice in connection with the contempt hearing held by Judge Burger-Plavan. The court ruled that all causes of action of the FAC attempt to vindicate the same primary right, i.e., to be free of the fines imposed by Judge Burger-Plavan.
Both defendants obtained judgments, and Woo-Ming appeals. Although subsequent orders were entered granting defendants attorney fees, since no appeal was taken from these postjudgment orders, we are without jurisdiction to review them. (Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.)
DISCUSSION
I. Legal Principles
Section 425.16 was designed to eliminate, at an early stage of the proceedings, nonmeritorious or retaliatory litigation “meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue. [Citation.] These meritless suits, referred to under the acronym SLAPP, or strategic lawsuit against public participation, are subject to a special motion to strike unless the person asserting that cause of action establishes by pleading and affidavit a probability that he or she will prevail.� (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806 (Seelig).)
Subdivision (b)(1) of section 425.16 provides: “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.â€� In making these determinations, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.â€� (§ 425.16, subd. (b)(2).)
In reviewing the denial of a motion to strike under section 425.16, we apply a two-part test. “[W]e determine whether plaintiff’s causes of action arose from acts by defendant[] in furtherance of defendant[’s] rights of petition or free speech in connection with a public issue. [Citations.] Assuming this threshold condition is satisfied, we then determine whether plaintiff has established a reasonable probability that [he] will prevail on [his] claims at trial.� (Seelig, supra, 97 Cal.App.4th at pp. 806-807.)
We review a ruling on a special motion to strike under section 425.16 de novo. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) Thus, we apply our independent judgment, both to the issue of whether the causes of action arise from a protected activity and whether the plaintiff has shown a probability of prevailing. (Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 610.)
II. Section 425.16 Applies
As noted, section 425.16, subdivision (b)(1) provides that a motion to strike may be directed to “[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 . . . .�
Acts “in furtherance� of a person’s First Amendment rights are defined in subdivision (e) of section 425.16 to include, “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [and] (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 . . . .� (Italics added.)
Our inquiry is to determine whether the wrongful conduct designated in the complaint “is one arising from protected activity.� (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 (Jarrow).) “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.’� (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)
Filing a lawsuit is an exercise of one’s constitutional right of petition and therefore any lawsuit arising from statements made in connection with or in preparation of litigation falls within the penumbra of section 425.16. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).) As the appellate court noted in Kashian v. Harriman (2002) 98 Cal.App.4th 892, our courts “have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.â€� (Id. at p. 908.) This is consistent with the Legislature’s directive that section 425.16 “shall be construed broadly.â€� (§ 425.16, subd. (a).)
The trial court took the view that Woo-Ming’s lawsuit was subject to a special motion to strike because it arose from testimony given by defendants at the contempt hearing held by Judge Burger-Plavan. We have no problem with that finding as far as it goes. However, we construe the FAC as falling within another, perhaps broader category of litigation-protected communicative conduct.
The gist of Woo-Ming’s allegations is that defendant attorneys (1) forged the date appearing above Woo-Ming’s signatures on the substitution of attorney pleading after Woo-Ming had signed merely a blank form, in order to make it look like he had signed it on a different day; and (2) procured Woo-Ming’s signature on the “cleverly written� December 9 warning letter by telling him the letter was required by the firm, when in fact defendants knew he would suffer adverse consequences by substituting himself as attorney for Forceps.
A substitution of attorney is a formal pleading filed, or intended to be filed, in a judicial proceeding. (§§ 284, 285.) It therefore qualified as a “writingâ€� made before a judicial proceeding, or in connection with an issue under review by a court. (§ 425.16, subd. (e)(1), (2).) The fraudulent statements and conduct allegedly committed by defendants arose in connection with, and indeed focused on, the substitution of attorney wherein Woo-Ming substituted in as attorney of record for Forceps in place of the law firm of Stone & Graves. It was the invalid substitution that subjected Woo-Ming to money damages and the wrath of the court, and the thrust of the lawsuit is to place the blame for its filing squarely at the doorstep of his former attorneys. “‘[P]lainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, [a judicial] proceeding or body.’â€� (Jarrow, supra, 31 Cal.4th at p. 734, quoting Briggs, supra, 19 Cal.4th at p. 1113.) We therefore conclude that the category of protected activity encompassed not merely defendants’ testimony given at the contempt hearing, but all of defendants’ communicative conduct in connection with the filing of the December 9 substitution of attorney.
Woo-Ming attempts to avoid the effect of section 425.16 by characterizing his causes of action as claims for “legal malpractice� and “professional negligence.� He cites Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1539, for the proposition that section 425.16 does not protect “‘garden variety’� lawsuits for legal malpractice.
Although the first cause of action of the FAC is labeled “Professional Negligence (Legal Malpractice)� and the FAC inserts various gripes about the Stone & Graves firm’s handling of the U.S. Homes matter throughout the complaint, that is not the end of our inquiry.
Defendants have requested that we take judicial notice of another action Woo-Ming filed against Lennar Sales Corporation, purportedly to show that a cause of action for malpractice with respect to the U.S. Homes matter could not lie. We deny the request, since the Lennar lawsuit was never brought to the attention of the trial court.
“The anti-SLAPP statute should be broadly construed [citation] and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92.) Thus, ‘a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one “cause of action.�’ [Citation.] We examine the principal thrust or gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably unprotected activity are only incidental to a cause of action based essentially on protected activity, collateral references to unprotected activity should not obviate application of the anti-SLAPP statute to the complaint.� (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520 (Ramona); accord Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.)
Although Woo-Ming’s first cause of action is branded “professional negligence� and contains scattered grievances about attorney services rendered in the U.S. Homes matter, the narrative concludes with an indictment of Attorney Gordon’s conduct with respect to the substitution of attorney form. And while the third cause of action alleges that the Stone & Graves law firm overbilled for phone conferences, it is not styled as a cause of action for malpractice, but for fraud. Because neither of these counts sets forth the basic elements of a “garden variety� malpractice cause of action, but rather contain collateral grievances about defendants’ conduct that are gratuitously mixed into the FAC, we conclude that the references to nonprotected activities were mere “artifices of pleading,� designed to mask the fact that the gravamen of Woo-Ming’s lawsuit relates to activity protected by section 425.16. (Ramona, supra, 135 Cal.App.4th at p. 519.)
In his reply brief, Woo-Ming contends that he should have been granted leave to amend his complaint a second time to serve Attorney Gordon. However, points raised for the first time in his reply brief are deemed forfeited. (Sacramento Cable Television v. City of Sacramento (1991) 234 Cal.App.3d 232, 244.) In any event, the law is clear that it is improper to grant leave to amend in response to an anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.)
We further observe that, neither in his opposition papers in the trial court nor in his appellate briefs did Woo-Ming single out and identify any particular cause of action as exempt from the protection of section 425.16, because it related solely to malpractice. On the contrary, Woo-Ming avers that his “malpractice lawsuit was not to prevent [defendants] from testifying against former clients in the future, but to punish them for forging Court documents and committing perjury to avoid liability for exposing [Woo-Ming] to contempt of court.� (Italics added.) We deem that statement as an effective concession that, but for defendants’ alleged misconduct in connection with the substitution of attorney, his “present claims would have no basis.� (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.)
The trial court did not err in determining that the FAC was subject to a special motion to strike.
III. Woo-Ming Did Not Show a Probability of Prevailing
The next step in determining whether to grant a special motion to strike is whether the plaintiff has shown a reasonable probability of prevailing. (§ 425.16, subd. (b)(1).) That determination is not difficult.
Defendants produced Gordon’s declaration contradicting the material accusations of the FAC, as well as a reporter’s transcript of the contempt sentencing hearing in Forceps v. HYOX, at which Judge Burger-Plavan, after receiving documentary evidence and testimony regarding the circumstances surrounding the filing of the substitution of attorney, declared: “I have considered and weighed Mr. Woo-Ming’s statements. I have also considered the testimony of Attorneys Eric Graves and Chris Gordon. I find that you, Jeffrey [sic] Woo-Ming, were not truthful with the Court in your testimony, that you have not been sincere and that you have not proceeded in good faith. I also find that Attorneys Chris Gordon and Eric Graves testified truthfully and that they were sincere and forthright with the Court.�
Woo-Ming offered no competent evidence to rebut this evidence. His declarations in opposition to the special motions to strike simply attached copies of pleadings, a check, and correspondence between the parties. In his points and authorities, Woo-Ming argued that an examination of these documents, coupled with knowledge of standard office practices, somehow proved that Gordon and Graves were lying. However, these speculative assertions were no substitute for admissible evidence.
Since Woo-Ming totally failed to carry his burden of showing a probability of prevailing on his lawsuit, it was properly dismissed pursuant to section 425.16.
IV. Motion for Sanctions
Defendants have filed a motion requesting that this court impose sanctions on Woo-Ming for filing a frivolous appeal. (§ 907; Cal. Rules of Court, rule 8.276.)
The standards for determining whether an appeal is frivolous are set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637 (Flaherty). There the court declared an appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any reasonable attorney would agree the appeal is totally and completely without merit. (Id. at p. 650.)
Flaherty cautions that “any definition [of a frivolous appeal] must be read so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.� (Flaherty, supra, 31 Cal.3d at p. 650.)
Although Woo-Ming’s contentions are not meritorious, we do not find the appeal to be sufficiently egregious as to be considered frivolous or brought in bad faith and, accordingly, we deny the motion for sanctions.
DISPOSITION
The judgments appealed from are affirmed. Defendants are awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: SIMS, Acting P.J., HULL, J.