Filed 9/23/19 Rahman v. Kahn CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MIZANOOR RAHMAN,

Plaintiff, Cross-defendant and Respondent,

v.

HASSAN REZA KAHN,

Defendant, Cross-complainant and Appellant;

SUHANI I. SULTANA,

Cross-defendant and Respondent.

D074378

(Super. Ct. No. 37-2017-00031746- CU-OE-NC)

APPEAL from orders of the Superior Court of San Diego County, Earl H. Maas III, Judge. Affirmed.

Hassan Reza Kahn, in pro. per., for Defendant, Cross-complainant, and Appellant.

Garcia & Birge and Marian H. Birge for Plaintiff, Cross-defendants, and Respondents.

INTRODUCTION

According to Hassan Reza Kahn’s notice of appeal, he is appealing: (1) an order awarding plaintiff and cross-defendant Mizanoor Rahman attorney fees after prevailing on a special motion to strike allegations in Kahn’s cross-complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16), and (2) an order granting cross-defendant Suhani I. Sultana’s separate special motion to strike two of three causes of action from the cross-complaint pursuant to the anti-SLAPP statute. Kahn’s opening brief presented no argument or authority challenging the order awarding attorney fees to Rahman following his special motion to strike. Further, Kahn failed to provide a complete record on appeal for our review of the order granting Sultana’s special motion to strike and Kahn’s opening brief failed to provide cogent arguments with citations to the record. Therefore, we deem both issues waived and we affirm the orders.

BACKGROUND

The trial court granted Rahman’s unopposed motion for attorney fees as a prevailing defendant on a special motion to strike pursuant to section 425.16, subdivision (c)(1). The court awarded Rahman $4,020 in attorney fees.

The trial court subsequently granted cross-defendant Sultana’s special motion to strike the first and second causes of action from the cross-complaint pursuant to section 425.16 because the allegations arose from an act in furtherance of Sultana’s right of petition and free speech. The court determined Sultana met the first prong of the anti-SLAPP statute by establishing the two causes of action were “solely based on the allegation that [Kahn] suffered severe emotional distress as a result of the filing of the complaint.” Because Kahn failed to submit evidence with his opposition, he did not meet his burden of establishing a probability of prevailing on those causes of action, i.e. that his claims were legally sufficient and supported by sufficient prima facia facts. Sultana’s motion did not seek to strike the third cause of action for unjust enrichment and the order did not address that cause of action.

DISCUSSION

I

The Anti-SLAPP Statute and the Standards of Review

Section 425.16, subdivision (b)(1), states: “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.” The analysis of an anti-SLAPP motion involves two steps.

” ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ [Citation.] We review an order granting or denying a motion to strike under section 425.16 de novo.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) We review an award of attorney fees to a prevailing defendant under section 425.16, subdivision (c) for abuse of discretion. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433.)

II

Waiver of the Appeal of Rahman’s Attorney Fee Award

Although Kahn’s notice of appeal stated he intended to challenge the court’s order awarding of Rahman attorney fees for prevailing on his anti-SLAPP motion, Kahn did not raise or discuss this issue in his opening brief. Therefore, we treat the issue as waived. ” ‘We are not bound to develop appellant[‘s] arguments for [him]. [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.)

III

Waiver of the Appeal of the Order Granting Sultana’s Anti-SLAPP Motion

Kahn failed to designate a complete record in this case to allow us to undertake a de novo review of the order granting Sultana’s anti-SLAPP motion. The record contains only Kahn’s opposition papers and the order granting the motion to strike. It does not contain the moving or reply papers or any evidence. It does not even include the operative complaint and cross-complaint.

“[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ‘ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ‘ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)

Kahn’s opening brief is largely a verbatim copy of his opposition presented to the trial court. Although he quoted various legal authorities, Kahn failed to support his arguments regarding these authorities with citations to the record.

The appellant must “present argument and authority on each point made” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) It is not our responsibility to search the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Any point raised that lacks citation may, in this court’s discretion, be deemed waived. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 287 citing Del Real, at p. 768.) A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)

Because Kahn failed to meet his burden of demonstrating error with an adequate record or with cogent analysis supported by citations to the record, he waived his challenge to the order granting Sultana’s special motion to strike.

DISPOSITION

The orders are affirmed. Respondents shall recover their fees and costs on appeal, in an amount to be determined by the trial court. (§ 425.16, subd. (c); Dove Audio, Inc. v.

Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

GUERRERO, J.