Filed 9/6/19 Shintani v. Shintani CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CAROL A. SHINTANI,

Plaintiff and Respondent,

v.

KELLY SHANA TOMIKO SHINTANI,

Defendant and Appellant.

G056804

(Super. Ct. No. 30‑2018‑00991836)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Reversed and remanded. Motion to Strike Respondent’s Appendix. Granted. Appellant’s Request for Sanctions. Denied. Respondent’s Request for Sanctions. Denied. Appellant’s Application to File Reply to Respondent’s Opposition to Motion to Strike Respondent’s Appendix. Denied. Respondent’s Application for Leave to File a Supplemental Opposition to Motion to Strike Respondent’s Appendix. Denied. Respondent’s Request for Judicial Notice. Denied.

Law Office of Jim P. Mahacek and Jim P. Mahacek for Defendant and Appellant.

Elizabeth Nigro & Associates and Elizabeth Nigro for Plaintiff and Respondent.

* * *

INTRODUCTION

Kelly Shana Tomiko Shintani (Kelly) appeals from the order denying her special motion to strike under California’s anti SLAPP statute, Code of Civil Procedure, section 425.16. Kelly’s anti SLAPP motion sought to have stricken the first two causes of action of the complaint filed by Carol A. Shintani (Carol) and, alternatively, to strike specific allegations of protected activity.

We conclude the trial court should have granted Kelly’s anti SLAPP motion because the first two causes of action arise out of protected activity within the meaning of section 425.16(b)(1) and Carol has not attempted to meet her burden of demonstrating the merit of her claims by establishing a probability of success. We therefore reverse the order denying Kelly’s anti SLAPP motion and remand. We decline Kelly’s invitation to treat the appeal as a petition for writ of mandate challenging the nonappealable order overruling Kelly’s demurrer to the third cause of action.

ALLEGATIONS

Carol’s complaint seeks recovery against Kelly under three causes of action: (1) intentional interference with contractual relations, (2) intentional interference with prospective economic advantage, and (3) intentional interference with expected inheritance. The complaint alleges:

Carol is the wife of Donald Shintani (Donald). Kelly is Donald’s daughter. Donald owned as his separate property a home in Lake Forest, California (the Lake Forest Home).

In February 2005, Donald and Carol entered into a confidential premarital agreement (the Premarital Agreement). Paragraph 12 of the Premarital Agreement provides that if Donald predeceases Carol while they are married, and they are living in the Lake Forest Home, then Carol shall have the right to occupy that home for a period of not less than one year but no longer than the length of the marriage. If the Lake Forest Home is sold, any appreciation in the property’s value during the term of the marriage is to be divided equally between Carol and Donald’s estate.

In January 2017, Donald suffered a catastrophic injury to his cervical spine and is now a quadriplegic. He is 79 years old, lives in an assisted living facility, and has “a shortened life expectancy.”

Under the first cause of action, the complaint alleges Donald gave Kelly a copy of the Premarital Agreement, which by that time would have given Carol the right to live in the Lake Forest Home for 13 years if Donald predeceased her. Paragraph 16 of the complaint alleges: “In the months after her father’s accident, defendant Kelly Shintani encouraged him to divorce [Carol], sooner rather than later, and convinced her father that [Carol] was unwilling to care for him, although she is a registered nurse, and unwilling to help with his living expenses. A final judgment for dissolution of the marriage, according to Kelly Shintani, will nullify the [P]remarital [A]greement, with respect to [Carol] living in the Lake Forest [Home] after Donald passes away.”

Paragraph 17 alleges: “[Kelly] retained a law firm to represent her father, paid the firm with her father’s money, then successfully had herself appointed as Guardian ad Litem for her father. The law firm moved the court for an early trial date, now set for June 6, 2018.”

Paragraph 18 alleges: “The court, upon motion by [Carol], removed defendant Kelly Shintani as Guardian ad Litem for Donald Shintani, finding she has a conflict of interest as an heir of her father.”

Kelly disrupted the Premarital Agreement and “knew that the disruption of the marriage would benefit her as an heir, in that she and her brother would inherit the million dollar Lake Forest [Home].”

Under the second cause of action, the complaint alleges the Premarital Agreement created the prospect of economic benefit to Carol and Kelly knew of that benefit. Paragraph 25 alleges: “[Kelly]’s retention of lawyers to represent [Donald] and encouraging him to divorce [Carol]; moving the divorce expeditiously through the courthouse, to accomplish a divorce before [Donald]’s death; and conduct to conceal his whereabouts from [Carol] and forbid [Carol] from having any contact with [Donald], constitutes wrongful conduct versus fair competition or privileged action.”

Kelly allegedly engaged in a scheme to interfere with Carol’s expectations of living in the Lake Forest Home following Donald’s death. Kelly allegedly knew her scheme was certain or substantially certain to interfere with Carol’s expectations.

Paragraph 27 alleges: “[Carol] will be substantially harmed if the court enters judgment and dissolves the marriage, assuming the family court adopts [Kelly]’s interpretation of the [P]remarital [A]greement, thus depriving [Carol] of her interest in the family residence.”

Under the third cause of action, the complaint alleges Carol expected to receive as an inheritance from Donald the right to live in the Lake Forest Home and one half of the net proceeds from the appreciation in value of that home during the time of the marriage. Kelly allegedly intended to interfere with that expected inheritance.

KELLY’S Anti SLAPP MOTION

Kelly brought an anti SLAPP motion to strike the first two causes of action in their entirety. Kelly alternatively moved to strike paragraphs 17, 18, 25, and 27 of Carol’s complaint. Kelly argued the first two causes of action arose out her right to petition. At the same time, Kelly demurred to all three causes of action of the complaint.

The trial court denied the anti SLAPP motion on the ground “the causes of action do not arise from any activity which is protected by public policy, including generalized freedom of speech and activity in the nature of petition or public participation.” The court overruled the demurrer. Kelly appealed from the order denying her anti SLAPP motion. (§ 425.16, subd. (i).)

MOTION TO STRIKE RESPONDENT’S APPENDIX

First we consider Kelly’s motion to strike Carol’s respondent’s appendix and request for sanctions. Kelly’s motion to strike the respondent’s appendix prompted four more applications and requests. They are: (1) Carol’s opposition to the motion and Carol’s request for sanctions; (2) Kelly’s application for leave to file a reply to Carol’s opposition to the motion to strike the respondent’s appendix; (3) Carol’s application for leave to file a supplemental opposition to Kelly’s proposed reply brief to Carol’s opposition to the motion to strike the respondent’s appendix; and (4) Carol’s request for judicial notice in support of her opposition to Kelly’s motion to strike the respondent’s appendix.

The respondent’s appendix consists of an ex parte application, a motion, two declarations, and a brief filed in Donald and Carol’s marital dissolution action, Orange County Superior Court Case No. 17D008880. Kelly argues the respondent’s appendix should be stricken because none of those documents had been filed or lodged with the trial court when it considered and ruled on Kelly’s anti SLAPP motion and demurrer. She points out that her appellant’s appendix included every document that was before the trial court.

Carol responds that Kelly requested the trial court take judicial notice of the entire court file in the marital dissolution action in support of her anti SLAPP motion and demurrer. In the trial court, Kelly did request such judicial notice and attached as exhibits to that request three documents from the court file in the marital dissolution action: (1) Donald’s petition for dissolution; (2) the status only judgment of dissolution; and (3) the notice of entry of the status only judgment of dissolution. A file stamped copy of Kelly’s request for judicial notice, with the three exhibits, is included in the appellant’s appendix. Carol argues that because Kelly requested judicial notice of the entire court file in the marital dissolution action, the file was before the trial court and should be included in the record on appeal.

Kelly’s motion to strike is well taken. A respondent’s appendix may include “any document that could have been included in the appellant’s appendix or joint appendix.” (Cal. Rules of Court, rule 8.124(b)(5).) An appellant’s appendix or joint appendix must include the items required by rule 8.122(b)(1) for inclusion in the clerk’s transcript and any document filed or lodged in the superior court that is “necessary for proper consideration of the issues.” (Id., rule 8.124(b)(1)(A) & (B); see id. rule 8.122(b)(3).) An appendix may incorporate by reference all or part of the record on appeal in another case pending in the reviewing court or in a prior appeal in the same case. (Id., rule 8.124(b)(2).) Documents not before the trial court generally cannot be included as part of the record on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 (Doers).)

Kelly’s request for judicial notice and the three attached exhibits were filed in the trial court and therefore were before the court when it made its rulings. But the entirety of the court file in the marital dissolution action was not filed or lodged with the trial court and therefore was not before the court. The trial court did not grant the request for judicial notice as to the entire court file and there is no evidence in the record to suggest it ever looked at that file in reaching its decisions to deny Kelly’s anti SLAPP motion and overrule the demurrer. The contents of the respondent’s appendix therefore are not properly part of the appellate record. (Trolan v. Trolan (2019) 31 Cal.App.5th 939, 951 [document outside of record reviewed by trial court cannot be included in respondent’s appendix].) If Carol wanted us to consider the documents from the marital dissolution action that are included in her respondent’s appendix, it was incumbent on her to file a request for judicial notice of them as records of another court. (See Doers, supra, 23 Cal.3d at p. 184, fn. 1.) She has not done so.

We are not sure in any event what relevance the items in the respondent’s appendix would have to the issues raised in this appeal. In the respondent’s brief, Carol cites to or quotes material in the respondent’s appendix as evidence to establish the truth of various facts. But taking judicial notice of a document or matter does not mean the reviewing court must give evidentiary effect to it. (Doers, supra, 23 Cal.3d at p. 184, fn. 1.) Judicial notice cannot be used to circumvent hearsay rules and other rules limiting the admission of evidence. “‘While judicial notice may be taken of court records [citation], the truth of matters asserted in such documents is not subject to judicial notice.’” (Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 14.)

Although we grant the motion to strike the respondent’s appendix, we deny Kelly’s request for sanctions. Carol’s mistake in choosing the components of the respondent’s appendix is not so egregious as to warrant sanctions. We also deny Carol’s request for sanctions. We deny Kelly’s application for leave to file a reply to Carol’s opposition, Carol’s application for leave to file a supplemental opposition to Kelly’s proposed reply brief, and Carol’s request for judicial notice in support of her opposition. None of those documents is authorized by the rules of court or necessary or helpful in resolving the motion to strike the respondent’s appendix.

DISCUSSION

I.

Background Law and Standard of Review

“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 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(b)(1).) “The anti SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

“Resolution of an anti SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary judgment like procedure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’” (Baral, supra, 1 Cal.5th at pp. 384 385, fn. omitted.)

“We review an order granting or denying an anti SLAPP motion under the de novo standard and, in so doing, conduct the same two step process to determine whether as a matter of law the defendant met its burden of showing the challenged claim arose out of protected activity and, if so, whether the plaintiff met its burden of showing probability of success.” (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 42 (Newport Harbor).)

II.

Step 1: Carol’s First and Second Causes of Action Arise From Protected Activity.

A. Protected Activity

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral, supra, 1 Cal.5th at p. 396.) The defendant must demonstrate the activity alleged falls within one of the four categories described in section 425.16(e). (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.)

Kelly has identified the alleged acts of protected activity as: (1) Kelly retained a law firm to represent Donald, paid the law firm with Donald’s money, and had herself appointed Donald’s guardian ad litem (Complaint, ¶ 17); (2) the law firm moved the family law court for an early trial date (Complaint, ¶ 17); (3) the court, upon motion brought by Carol, removed Kelly as Donald’s guardian ad litem on the ground she had a conflict of interest as his presumptive heir (Complaint, ¶ 18); (4) Kelly retained lawyers to represent Donald, encouraged him to divorce Carol, and moved the divorce proceeding “expeditiously” to judgment in order to accomplish a divorce before Donald’s death (Complaint, ¶ 25); and (5) “[Carol] will be substantially harmed if the court enters judgment and dissolves the marriage, assuming the family court adopts [Kelly]’s interpretation of the [P]remarital [A]greement, thus depriving [Carol] of her interest in the family residence” (Complaint, ¶ 27).

All of these alleged acts constitute protected activity under section 425.16(e)(1) and (2). “Any act” in furtherance of the right of petition or free speech includes the filing, funding, and prosecution of a civil action. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Pleadings, motions, requests, and declarations filed in court are written statements or writings made before a judicial proceeding or made in connection with an issue under consideration by a judicial body. (§ 425.16(e)(1), (2); see ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1046 [“Protected activity thus includes the filing of lawsuits, and statements and pleadings made in or in preparation for civil litigation”].) Retaining a lawyer is “intimately intertwined with, and preparatory to, the filing of judicial proceedings” and therefore qualifies as petitioning activity for purposes of the anti SLAPP statute. (See Cabral v. Martins (2009) 177 Cal.App.4th 471, 482.) Instigating and pursuing litigation to judgment and other types of litigation related conduct are protected because they “‘relate[] to the substantive issues in the litigation and [are] directed to persons having some interest in the litigation.’” (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962.)

B. Arising Out of Protected Activity

Carol argues her first two causes of action were based, not on any of this protected activity, but on a plan by Kelly to exert undue influence over Donald and encourage him to divorce her and thereby disrupt the Premarital Agreement. “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral, supra, 1 Cal.5th at p. 396.) We will assume for the moment that Carol’s claims for relief are based on both protected and unprotected activity.

A claim arises from protected activity within the meaning of section 425.16(b)(1) if the activity underlies or forms the basis for the claim. (Park v. Board of Trustees of California State University (2017) 2 Cal,5th 1057, 1062 (Park); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “Critically, ‘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.’” (Park, supra, 2 Cal.5th at p. 1063.) “In short, in ruling on an anti SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Ibid.; see Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [“In the anti SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity”].)

In Park, the plaintiff, a tenure track assistant professor at California State University, sued the university’s board of trustees (the defendant) for discrimination under the California Fair Employment and Housing Act after he was denied tenure. (Park, supra, 2 Cal.5th at p. 1061.) The defendant moved to strike the complaint under the anti SLAPP statute. The defendant argued the lawsuit arose from its decision to deny the plaintiff tenure and the communications that led up to and followed that decision, and those communications were protected activities. (Ibid.) The trial court denied the anti SLAPP motion and the Court of Appeal reversed. (Ibid.) The California Supreme Court reversed the Court of Appeal because the protected communications were not themselves the wrong complained of or the basis for the claim. (Id. at pp. 1060.)

The Supreme Court clarified and explained the requisite nexus between the protected activity and the claims challenged by an anti SLAPP motion. The court emphasized the distinction between “activities that form the basis for a claim” and activities “that merely lead to the liability creating activity or provide evidentiary support for the claim.” (Park, supra, 2 Cal.5th at p. 1064.) “[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id. at p. 1060.) The plaintiff claimed he was denied tenure due to his national origin; none of the elements of that claim depended on any of the protected communications or activities. (Id. at p. 1068.) “The tenure decision may have been communicated orally or in writing, but that communication does not convert [the plaintiff]’s suit to one arising from such speech. . . . As the trial court correctly observed, [the plaintiff]’s complaint is ‘based on the act of denying plaintiff tenure based on national origin. Plaintiff could have omitted allegations regarding communicative acts or filing a grievance and still state the same claims.’” (Ibid.)

Here, Carol could not omit the allegations of protected activity and still obtain relief for interference with contract or economic relations. Kelly’s idea, plan, plot, or scheme to induce Donald to divorce Carol is not enough to recover for those torts. Rather, it was Kelly’s alleged conduct in using the legal system to seek and obtain the guardianship and divorce that allegedly produced the injury to Carol—disruption of the Premarital Agreement—and gives rise to a right to relief. In other words, the alleged protected activity is itself the wrong complained of and not just evidence of liability or a step leading to some different act for which liability is asserted. Because Carol seeks relief based on allegations arising from protected activity, we turn to step 2 of the anti SLAPP analysis.

III.

Step 2: Carol Has Forfeited a Claim That She Demonstrated the Merit of the First Two
Causes of Action.

At the second step, “the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral, supra, 1 Cal.5th at p. 396.) At this step, the plaintiff must establish the claims based on allegations of protected activity are legally sufficient and supported by a prima facie showing of facts which, if proved at trial, would support a judgment in the plaintiff’s favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 713 714.) “To meet this burden, a plaintiff cannot rely on its own pleading, even if verified [citation], but must present admissible evidence.” (Newport Harbor, supra, 23 Cal.App.5th at p. 49.)

Carol has forfeited any argument that she satisfied her burden on the second step of the anti SLAPP analysis. “‘Appellate briefs must provide argument and legal authority for the positions taken. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”’ [Citation.] ‘We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; see United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [“[Appellant] has also failed to support many of its points with cogent argument, legal authority or specific citations to the record on appeal”]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We are not bound to develop appellants’ arguments for them”].)

Carol’s respondent’s brief barely mentions the second step of the anti SLAPP analysis. The respondent’s brief does not provide cogent argument, legal authority, or record citations on the second step of the anti SLAPP analysis, and the text of the brief has no heading regarding the second step. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [“Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading”].) The closest thing to an argument heading on the second step is an entry appearing only in the table of contents that “The Second Prong of the anti SLAPP Motion is Irrelevant.” This statement is virtually a concession Carol is not asserting she satisfied her burden on the second step.

Carol apparently did present evidence in opposition to Kelly’s anti SLAPP motion, but the respondent’s brief neither mentions nor cites to any of this evidence. It is not our job to sift through the evidence and figure out whether it supports each element of a prima facie case. (Newport Harbor, supra, 23 Cal.App.5th at p. 50.) “It is the responsibility of [Carol], as the party opposing the anti SLAPP motion, to organize the evidence and develop [her] arguments at the second step of the analysis.” (Ibid.) She has failed to do so. It appears to us in any case that the first and second causes of action would be barred by the litigation privilege of Civil Code section 47, subdivision (b).

Because Carol has not demonstrated the claims arising out of protected activity are factually substantiated, the claims based on the protected activity must be stricken. (Baral, supra, 1 Cal.5th at p. 396.) The first and second causes of action seek relief based only on the allegations of protected activity; therefore, the entirety of those claims must be stricken.

IV.

Kelly Is Entitled to Recover Attorney Fees

Under section 425.16, subdivision (c)(1): “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” We are reversing the order denying Kelly’s anti-SLAPP motion and remanding with directions to grant the motion and strike the first two causes of action. Kelly, as a prevailing defendant on an anti SLAPP motion, is entitled to recover costs and reasonable attorney fees, to be determined by the trial court.

V.

We Decline to Review the Order Overruling
Kelly’s Demurrer

In a round about way, Kelly asks us to review the trial court’s order overruling her demurrer to the complaint by treating her appeal as a petition for writ of mandate. As we are directing the trial to strike the first and second causes of action, Kelly’s request is moot except as to the third cause of action, which was not a subject of the anti SLAPP motion.

An order overruling a demurrer is not directly appealable but may be reviewed on appeal from a final judgment. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 912 913.) An appeal from a final judgment is presumed to be an adequate remedy. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.)

We may treat an improper appeal as a petition for a writ of mandate in unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 400 401.) It is appropriate to treat an appeal from a nonappealable judgment as a petition for extraordinary writ when the remedy at law is inadequate, the appellate records and briefs in substance include the elements necessary for proceeding as a writ of mandate, there is no indication the trial court would appear as a party in the writ proceedings, the appealability of the challenged order was not clear, and the parties urged the court to decide the issue rather than to dismiss the appeal. (Id. at p. 401.)

These conditions are not satisfied here. This is not a situation in which Kelly mistakenly filed a notice of appeal from a nonappealable order with the consequence that the appeal would be dismissed if not treated as a petition for writ of mandate. Kelly did not (and indeed could not) file a notice of appeal from the order overruling her demurrer: Her appeal is strictly from the order denying her anti SLAPP motion. Thus, there is no improper appeal to treat as a writ petition. Rather, Kelly is trying to piggyback review of the nonappealable order onto review of an appealable one.

Further, this case does not present “unusual circumstances” that would justify treating the appeal as a petition for writ of mandate to challenge the order overruling the demurrer. (Olson v. Cory, supra, 35 Cal.3d at p. 401.) Kelly has an adequate remedy at law, her briefs do not include the elements necessary for a writ proceeding, the order overruling the demurrer was clearly nonappealable, and Carol does not agree that we should review the order overruling the demurrer.

DISPOSITION

The order denying the anti SLAPP motion is reversed and the matter is remanded with directions to grant the motion, strike the first two causes of action, and award Kelly costs and reasonable attorney fees under section 425.16, subdivision (c)(1). Appellant shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.