Filed 12/23/19 Spencer v. Sinclair CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

—-

SAMUEL R. SPENCER,

Plaintiff and Appellant,

v.

ROBERT F. SINCLAIR et al.,

Defendants and Respondents.

C082485

(Super. Ct. No. SCV0036980)

Plaintiff Samuel R. Spencer sued defendants Robert F. Sinclair, John M. Sinclair, the law firm Sinclair Wilson Baldo & Chamberlain, W. Steven Shumway, Brian Warren, and Patricia Warren (collectively defendants) for multiple causes of action related to litigation the Warrens previously filed against plaintiff to stop a nonjudicial foreclosure sale plaintiff initiated against them. Shumway represented the Warrens in their bankruptcy proceeding, which resulted in a bankruptcy plan that became relevant to the foreclosure. The Sinclairs and their law firm represented the Warrens in the litigation against plaintiff to stop the nonjudicial foreclosure sale. Following the filing of the operative complaint in this action, defendants filed a motion to strike under the anti-SLAPP statute arguing their initiation of litigation against plaintiff constituted protected conduct. The trial court agreed and struck plaintiff’s complaint as well as awarded attorney fees and costs to the Warrens.

On appeal, plaintiff raises a host of issues pertaining to the striking of his complaint and the awarding of attorney fees and costs. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Dispute

Plaintiff’s complaint alleged he sold a 71-acre parcel of vacant land in Nevada County to the Warrens. The parties entered into a promissory note in the amount of $1.1 million secured by a deed of trust, which included an acceleration clause. Under the terms of the note, the Warrens were to pay interest only for the 15-year life of the loan, at the end of which the principal would be due. Interest was set at 5 percent for the first three years, then at 7 percent for the next five years. For the remaining seven years of the loan, the interest was to be renegotiated at the discretion of the beneficiary but not to exceed 9 percent. The Warrens made timely payments for the first eight years.

Before the 7 percent interest term was complete, the Warrens declared bankruptcy and retained Shumway to represent them in that process in federal court. As part of the bankruptcy plan that resulted from this process, the loan between plaintiff and the Warrens was declared “unimpaired” with plaintiff “continu[ing] to be paid monthly interest only payments according to the terms of the promissory note . . . at the rate of 7.0% per annum until 2019 when the entire balance on the loan [would] become due.. [sic]” Following the plan, Shumway filed a motion to modify the promissory note to fix the interest rate at 7 percent, which plaintiff opposed, and the federal court denied. Around this same time, Brian Warren transferred the entire property, which consisted of four parcels, in four interspousal transfer deeds to Patricia Warren as her separate property.

Plaintiff thereafter raised the interest payments payable to him to 9 percent; however, the Warrens paid only 7 percent. Plaintiff recorded a notice of default in Nevada County but, according to plaintiff’s complaint, it included a fatal error resulting in a void document “of no legal consequence.” The Warrens retained Robert Sinclair and his law firm to represent them in resolving the foreclosure issues between themselves and plaintiff. Robert Sinclair sent a letter to plaintiff accusing him of violating the bankruptcy plan, which entitled plaintiff to interest only payments in the amount of 7 percent until the end of the loan term when the entire balance would be due. According to the letter, it appeared to Robert Sinclair that plaintiff was confused by the motion to modify the terms of the promissory note, the filing of which was unnecessary because the promissory note was already modified by the bankruptcy plan that required 7 percent interest payments for the life of the loan. Further, the terms of the promissory note did not allow plaintiff to unilaterally set the amount of the interest rate payments and those payments needed to be negotiated. After noting that plaintiff’s notice of default was defective, the letter concluded that if plaintiff persisted in demanding 9 percent interest, the Warrens would file a complaint for injunctive relief and would be entitled to attorney fees pursuant to the promissory note that would total “many tens of thousands of dollars.”

The Warrens ultimately sued plaintiff for declaratory and injunctive relief in Nevada County Superior Court, with Robert Sinclair and his law firm acting as the Warrens’ legal counsel. Plaintiff’s complaint alleged that he was then presented with the option of incurring legal fees to assert his rights under the promissory note or accepting interest payments in the amount of 7 percent, which was counter to the terms of the promissory note. Because he could not afford to do either, plaintiff sold the promissory note.

In the litigation that followed, the Nevada County Superior Court ruled that absent clarification from federal court, summary judgment could not be granted because a factual issue existed as to whether plaintiff could have unilaterally imposed 9 percent interest payments on the Warrens. The superior court, however, believed that if plaintiff had such power, the bankruptcy plan allowed for the additional percentage payment to be due at the end of the loan period and the Warrens remained out of default as long as they paid 7 percent interest until that time. The superior court agreed with the Warrens that plaintiff could not accelerate the loan due to the interspousal transfer that occurred.

The parties then went to federal court to clarify the meaning of the bankruptcy plan. The federal court ruled the plan declared the loan “unimpaired” meaning it was unaffected by the Warrens’ bankruptcy and remained as initially negotiated. The parties went back to superior court and judgment was entered on the Warrens’ complaint. The parties agreed the foreclosure proceedings were wrongfully and prematurely commenced. The court ruled, however, the terms of the promissory note did not require renegotiation and allowed the holder of the promissory note to select the interest rate in its own discretion up to 9 percent, which plaintiff complied with when increasing the interest rate to 9 percent. As ruled on summary judgment, plaintiff could not accelerate the loan based on the interspousal transfer.

Following conclusion of the Warrens’s litigation, plaintiff filed his complaint pertaining to this appeal, alleging three causes of action: 1) abuse of process; 2) malicious prosecution; and 3) intentional infliction of emotional distress. These causes of action were based on the complaint’s allegation that the Warrens and their attorneys acted unethically and without probable cause when they filed legal documents and attempted to reduce the interest rate plaintiff could charge, which would result in a $154,000 loss to plaintiff over the last seven years of the loan. The complaint alleged Shumway filed his motion to modify the promissory note without a legal basis and failed to cite any authority for his position when doing so. Robert Sinclair allegedly perpetuated this fraud by filing the wrongful foreclosure action against plaintiff that should have been filed in federal court and not in Nevada County, which lacked personal jurisdiction over plaintiff and subject matter jurisdiction over the bankruptcy plan. Plaintiff further alleged the suit was frivolous on the merits because the attorneys knew what it meant for a loan to be unimpaired by the bankruptcy plan, and thus knew they would not prevail in reducing the interest payments to 7 percent.

II

Trial Court Proceedings

Following the filing of the operative complaint, the Warrens filed an anti-SLAPP motion to strike, prepared by their legal counsel Robert Sinclair. The Sinclairs, their law firm, and Shumway joined in the motion. Defendants argued “[t]he principal thrust or gravamen of each of plaintiff’s three causes of action ar[o]se from litigation between plaintiff and the Warrens. As such, as to each cause of action the first prong of inquiry under an anti-SLAPP motion [wa]s satisfied.” Further, plaintiff could not establish a probability of success on the merits, thus failing to satisfy the second prong. Defendants also notified plaintiff they would be seeking attorney fees and costs.

Plaintiff requested an extension of time to file his opposition. He started by e-mailing opposing counsel and seeking a stipulation for a 30-day extension. That stipulation was not forthcoming, so plaintiff filed a request with the trial court detailing the same reason for his request that he detailed to opposing counsel. This reason was plaintiff suffered a stroke on December 30, 2015, while visiting New York City and was hospitalized overnight until he could return to California. On January 15, 2016, he reentered the hospital and was diagnosed with a subacute hemorrhage that was subsequently stabilized. Plaintiff attached letters from three treating physicians recommending he take three months to recover from his stroke. He also attached his medical records from New York and the home care instructions given to him upon his discharge from treatment. Plaintiff’s request to both the court and to opposing counsel, however, was inconsistent about whether he wanted a 30-day or three-month extension.

Before the extension was ruled upon, plaintiff filed his opposition arguing defendants’ actions were not in the furtherance of their right to free speech or in connection with a public issue. Plaintiff appeared to limit his merits argument to the wrongful foreclosure action and argued the Nevada County Superior Court lacked subject matter jurisdiction and the suit should have been filed in federal bankruptcy court. “I have stated simply that the relief sought in this instant action, stems from the single tortious act of Sinclair filing an action in Nevada County Superior Court, a California State Court, lacking the requisite Subject Matter Jurisdiction.” Plaintiff also argued defendants were not entitled to attorney fees because they represented themselves.

The parties appeared before Commissioner Michael Jacques for plaintiff’s motion to continue. No court reporter was present. The minute order from that hearing indicates the parties stipulated to the matter being heard by a commissioner. It also indicates the court “dropped” plaintiff’s motion to continue from calendar on its own motion and continued defendants’ motion to strike for more than 30 days. Part of the court’s orders denied further supplemental briefing and directed Robert Sinclair to file copies of all documents regarding the motion to strike with the clerk’s office.

Commissioner Jacques subsequently heard defendants’ motion to strike. The minute order from that hearing indicates the parties stipulated to the matter being heard by a commissioner. There is no indication in the reporter’s transcript that the stipulation affirmatively occurred.

When arguing against the anti-SLAPP motion, plaintiff referred to his motion to continue and said, “I recall the court five weeks ago in our presence being faced with the circumstance of not having a file to refer to. The court made it crystal clear that they were not empowered to hear or to rule on my motion for an extension, and rightly so. They weren’t empowered to do it. They couldn’t do it and they didn’t do it.” Plaintiff then got to the heart of his opposition and argued defendants’ filing of the complaint in Nevada County, a court without jurisdiction, amounted to an extortion scheme, which cannot be the subject of an anti-SLAPP motion. He argued all of the Warrens’ causes of action against him alleged a violation of the bankruptcy plan and should have been decided in federal court. Instead, the Warrens filed their suit in state court, which could not rule on any claim but enjoined him from foreclosing on the property for almost three years while the matter was dealt with in federal court. This delay left plaintiff without a revenue stream for the entire time the suit was pending for two reasons. First, if he cashed the checks from the Warrens, he would have waived his right to charge an additional 2 percent in interest and second, if he had fought the matter he could potentially have been liable for attorney fees. This result forced plaintiff to sell the note to a third party who could afford to fight the Warrens and their counsel.

The court granted defendants’ motion and adopted its tentative ruling with minor modifications. It found defendants met their burden of showing the acts subject to the suit arose out of protected activity because the gravamen of plaintiff’s causes of action was the prior litigation between the parties. Further, plaintiff was unable to demonstrate he would be successful on the merits of his causes of action. First, he assigned his rights to a third party by the promissory note. Second, he failed to establish any element of his three causes of action. Finally, his abuse of process and intentional infliction of emotional distress claims were barred by the litigation privilege. The court’s oral pronouncement added there was no civil cause of action for extortion, thus plaintiff could not show he met the elements of extortion as contended during oral argument.

Plaintiff requested a statement of decision. The court denied the motion because a statement of decision is not required for law and motion matters. However, it adopted its tentative ruling as amended as well as its statements on the record to the extent a statement of decision was required.

Plaintiff later filed a motion to vacate. As relevant to the issue raised on appeal, plaintiff argued the trial court lacked jurisdiction to rule on defendants’ anti-SLAPP motion because plaintiff never consented to the matter being heard by a commissioner.

The Warrens later filed a motion for attorney fees under the anti-SLAPP statute. Robert Sinclair requested a total of $46,196 in his declaration. He supported this request with a bill statement to the Warrens detailing the time spent on the case. The Warrens also notified plaintiff they would be requesting up to $5,000 in the event plaintiff opposed the attorney fee motion.

Plaintiff then filed his notice of appeal.

At a subsequent hearing on the Warrens’s attorney fee motion, plaintiff objected to the court hearing the attorney fee motion because he had already appealed the matter. The court overruled the objection, finding the trial court retained jurisdiction over the attorney fee motion while the underlying anti-SLAPP matter was pending on appeal. Robert Sinclair then presented his argument to the court. While he did not necessarily agree with the trial court’s tentative ruling that the amount of attorney fees should be reduced, he was willing to accept the court’s reduction. Robert Sinclair, however, did request additional fees based on plaintiff’s opposition and supported that request with a declaration and bill statement.

The trial court awarded the Warrens $36,325 in attorney fees and $60 in costs. The court also awarded $3,815 in attorney fees because plaintiff opposed the motion, for a total of $40,200.

Plaintiff later filed a motion to vacate the trial court’s attorney fee award by arguing in a declaration that the court lacked jurisdiction over the attorney fee motion because he already filed an appeal in the case. At the hearing on the motion, heard by Commissioner Jacques, the court denied plaintiff’s request to take testimony and granted plaintiff 10 minutes to argue his motion. Plaintiff began his argument by referring to opposing counsel by only their last names, in response to which the court admonished plaintiff to refer to counsel respectfully by using the mister prefix. Plaintiff then asked for a continuance because it appeared to him the court had not read his moving papers and was wasting his argument time delivering unnecessary admonishments. The court denied the motion and stated testimony was unnecessary given the court’s familiarity with the case and the extensive briefing filed. The court assured plaintiff that while it may have overlooked his written request to take testimony, it read his moving papers. The court then permitted plaintiff an additional four minutes in which to present his argument. Plaintiff was admonished twice for failing to refer to opposing counsel with the mister prefix and once for accusing the court of having improper motives and being untruthful. Plaintiff’s substantive argument amounted to a complaint that he was not provided with enough time to argue and the trial court lacked jurisdiction to rule on the attorney fee motion because plaintiff had already filed his appeal. At the close of argument, the court denied plaintiff’s motion to vacate.

Plaintiff then appealed the court’s attorney fee award.

DISCUSSION

I

The Trial Court Properly Granted Defendants’ Anti-SLAPP Motion

Plaintiff raises several issues pertaining to the trial court’s granting of defendants’ anti-SLAPP motion. Preliminarily, he contends the trial court denied him due process by dropping his motion to continue from calendar and failed to gain his stipulation to a commissioner presiding over the matter, as well as Robert Sinclair’s altering of the minute order resulting in plaintiff’s inability to file supplemental briefing in opposition to the anti-SLAPP motion. Plaintiff further attacks the merits of the court’s ruling in the anti-SLAPP motion, the adequacy of its statement of decision, and its denial of his motion to vacate the judgment. We reject each of these arguments in turn.

A

Applicable Law

We conduct an independent review of the trial court’s ruling on an anti-SLAPP motion. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) By its terms, the anti-SLAPP statute applies to any cause of action against a defendant “arising from any act of that person in furtherance of the person’s right of petition or free speech . . . .” (§ 425.16, subd. (b)(1).) A claim affecting the exercise of these rights is subject to a special motion to strike unless the court determines there is a probability that the complainant will prevail on the claims. (§ 425.16, subd. (b).) The anti-SLAPP statute protects against the use of the judicial system to chill the constitutionally-protected right to make statements or writings before judicial or other official proceedings, and in connection with an issue under consideration or review by a judicial body or other legally authorized official proceeding. (§ 425.16, subd. (e).)

The anti-SLAPP statute creates “a two-step process for determining whether an action is a SLAPP.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) In the first step, the court decides whether the subject action arises from rights as defined in section 425.16, subdivision (c). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Thereafter, the burden shifts to the opposing party to establish a “probability” that he or she will prevail. (§ 425.16, subd. (b); Equilon Enterprises, at p. 61.) To meet this burden, a plaintiff would have to demonstrate that his or her claims against the moving parties are supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.)

B

Preliminary Issues

Plaintiff contends the trial court improperly dropped his motion to continue from calendar when it continued the anti-SLAPP motion on its own motion. He argues that because the court never heard his motion, he was denied due process and the error was reversible per se. In any event, plaintiff argues he was prejudiced by the court’s action because he could not conduct discovery. We disagree.

Plaintiff’s motion to continue was inconsistent in its request for an extension of time — at times he requested a 30-day extension, while at others he requested a 90-day extension. The record does not indicate plaintiff objected to the court’s giving less than 90 days and thus he has forfeited his argument of error in that regard. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [“[p]oints not raised in the trial court will not be considered on appeal”].) Because the trial court gave plaintiff what he requested upon its own motion, the court was correct in dropping plaintiff’s motion to continue from calendar as moot. Indeed, there was no need to hear plaintiff’s argument for a remedy already given. (See In re Michelle M. (1992) 8 Cal.App.4th 326, 330 [courts will not rule on questions when the ruling would serve no useful purpose].)

Instead, plaintiff’s appellate argument appears to be more concerned with the court’s order that supplemental briefing would not be accepted. This is related to his argument that Robert Sinclair impermissibly added that directive to the minute order following conclusion of the hearing. The problem with plaintiff’s argument is that we have a limited record from which to determine what happened at the hearing and the record we have does not support plaintiff’s argument. There was no court reporter at the motion to continue and the only memorialization of the hearing is the minute order, which reflects that the court ordered no supplemental briefing. Plaintiff attempted to receive a settled statement regarding that hearing, but he abandoned those efforts and the trial court never issued a settled statement as to the particulars of that hearing. Thus, we are left with only the minute order that indicates the court ordered no supplemental briefing would be accepted. Whether Robert Sinclair told the clerk to add that notation to the minute order is irrelevant because the minute order itself indicates the court first directed it to be part of its order before that notation was included in the minute order.

Neither was it error for the court to deny supplemental briefing. Plaintiff argues he was denied due process when the court ordered no supplemental briefing resulting in per se reversible error because he was denied the right to testify and present evidence. Not so. When the trial court denied supplemental briefing, plaintiff had already filed his opposition to the anti-SLAPP motion complete with argument and evidentiary support. Thus, plaintiff was not denied the right to argue his case to the court.

Plaintiff also argues that by denying him supplemental briefing, he was prejudiced because he was unable to conduct discovery to prove Robert Sinclair’s act of filing a wrongful foreclosure lawsuit against him did not meet the first prong of the anti-SLAPP analysis in that it did not arise out of the right of petition or free speech. The problem with plaintiff’s argument is that he never requested a continuance for the purpose of conducting discovery nor did he move to open discovery as required by the anti-SLAPP statute. (§ 425.16, subd. (g) [“All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. . . . The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision”].) Plaintiff’s motion to continue indicated he needed a continuance to heal from a recent stroke, not to further prepare the opposition he had already filed. Given that plaintiff never sought discovery in the trial court, it cannot be said that the trial court erred by failing to give plaintiff an opportunity to conduct discovery.

Relatedly, the record also does not support plaintiff’s claim that he did not consent to the anti-SLAPP motion being heard by a commissioner. The minute order on the motion to continue indicates plaintiff consented to Commissioner Jacques’s hearing that motion, thus the record reflects plaintiff knew Commissioner Jacques was a commissioner. The reporter’s transcript from the hearing on the anti-SLAPP motion shows plaintiff knew Commissioner Jacques previously continued the matter because the court file was lost and Commissioner Jacques needed time to review it before making a ruling. Thus, plaintiff knew a commissioner would be ruling on the anti-SLAPP motion. If plaintiff objected to Commissioner Jacques’s hearing the anti-SLAPP motion, he needed to object pursuant to the Superior Court of Placer County, Local Rules, rule 20.2(B) (rule 20.2(B)) at that time and up to five court days before the anti-SLAPP motion was heard. Rule 20.2(B) provides: “When the regularly scheduled law and motion calendar is heard by a Commissioner, the parties must file written notice indicating whether or not they stipulate to the Commissioner. Failure to file such notice of stipulation or non-stipulation at least five (5) Court days prior to the hearing date for the motion will be deemed a stipulation to the Commissioner as temporary judge per [section 259, subdivision (d)] for all purposes other than trial.” Plaintiff did not comply with this rule, thus he impliedly stipulated to Commissioner Jacques’s hearing and ruling upon the anti-SLAPP motion.

Plaintiff argues Foosadas applies to this case. (Foosadas v. Superior Court (2005) 130 Cal.App.4th 649.) In Foosadas, we held that a defendant did not impliedly stipulate under a local rule to a commissioner serving as a temporary judge at his preliminary hearing by participating in prior proceedings that involved only the exercise of subordinate judicial duties. (Id. at pp. 653, 655.) We found that “[t]he trial court’s attempt to create a rule that a party must object to the participation of a commissioner prior to the first hearing on a case, whether or not the hearing involves the performance of subordinate judicial duties not requiring a stipulation, is without legal foundation.” (Id. at p. 655.) Rather, we held that “[a] subordinate judicial officer may serve as a temporary judge only upon the . . . express or implied stipulation that the particular proceeding may be conducted by a temporary judge.” (Id. at p. 652.)

Here, plaintiff knew Commissioner Jacques would hear his anti-SLAPP motion more than 30 days before the motion was ruled upon. By failing to file a nonstipulation pursuant to rule 20.2(B), plaintiff impliedly consented to Commissioner Jacques’s hearing the motion. (Foosadas v. Superior Court, supra, 130 Cal.App.4th at p. 652 [stipulation to a commissioner may be express or implied by the parties’ conduct].) Thus, assuming plaintiff is correct that Commissioner Jacques’s hearing of the motion to continue did not constitute a stipulation to his hearing of the anti-SLAPP motion, plaintiff’s knowledge that Commissioner Jacques would hear the anti-SLAPP motion required him to file a notice of nonstipulation at least five court days before the hearing of the anti-SLAPP motion.

Plaintiff’s reliance on Michaels is also misplaced. (Michaels v. Turks (2015) 239 Cal.App.4th 1411.) There, the appellate court reversed a restraining order because the self-represented defendant had not stipulated to a commissioner presiding over the hearing. (Id. at p. 1414.) The court noted the Riverside County local rule stated that while a stipulation is implied in cases of default and uncontested matters, self-represented parties “ ‘will be asked on the record if they so stipulate.’ ” (Id. at p. 1416.) Plaintiff identifies no similar local rule here requiring an express stipulation on the record by a self-represented party. Accordingly, plaintiff impliedly consented to the anti-SLAPP motion being heard by a commissioner. For the same reason, plaintiff’s challenge to the court’s denial of his motion to vacate on the same ground lacks merit.

C

Anti-SLAPP Motion

Plaintiff contends the trial court erred by finding defendants’ conduct of initiating a wrongful foreclosure suit against him fell within the protection of the anti-SLAPP statute. He does not argue the court erred in its analysis regarding the second prong, in that he failed to make a prima facie showing of success on the merits. We conclude there was no error.

On the first prong of the two-part test for determining whether the anti-SLAPP statute applies, we analyze whether a defendant’s acts underlying the plaintiff’s cause of action were in furtherance of the defendant’s right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The focus is on the principal thrust or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing conduct that provides the foundation for the claims. (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319; Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 396.) “When we take this first step and determine whether the plaintiff’s claims arise from defendant’s protected activity, we do not consider the legitimacy of the plaintiff’s claims.” (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 776.)

“ ‘A cause of action “arising from” [the] defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ ” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see § 425.16, subd. (b) [“[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 . . . shall be subject to a special motion to strike”].) “[C]ourts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ ” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) Section 425.16, subdivision (e), expressly defines an “ ‘act in furtherance of a person’s right of petition’ ” to include “any written or oral statement or writing made before a . . . judicial proceeding, or any other official proceeding authorized by law” and “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(1), (2).)

This protection extends to “prelitigation conduct,” so long as the conduct has some connection with the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322, fn. 11.) It extends not only to parties, but also to their counsel. (E.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220-221 [anti-SLAPP protection applied to attorney acting on behalf of clients].) “[P]rosecution of a civil action” is protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) The scope of the protection extends not only to affirmative acts, but also omissions or failures to act. (See Navellier v. Sletten, supra, 29 Cal.4th at p. 90 [finding alleged “acts (or omissions)” to “fall[ ] squarely within the plain language of the anti-SLAPP statute”]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hamption LLP (2005) 133 Cal.App.4th 658, 671-672 [finding that while alleged “stalling and stonewalling tactics” on the part of the defendant attorneys “may not have been communicative [acts] per se, they appear to constitute ‘conduct in furtherance of the exercise of the constitutional right of petition’ [citation] in that they were litigation tactics the [defendant law firm] employed to benefit its client . . .”].)

Plaintiff concedes the gravamen of his causes of action is that defendants abused the legal system by sending him a threatening demand letter before filing a meritless lawsuit against him, which resulted in economic and emotional injury. These alleged acts arise solely out of defendants’ prelitigation and litigation conduct, thus involving their right of petition.

Plaintiff’s reliance on Yeager to prove otherwise is unavailing. (Yeager v. Holt (2018) 23 Cal.App.5th 450.) In Yeager, we concluded a client’s causes of action against his former attorney for malpractice, breach of contract, and using a client’s name or likeness for commercial purposes did not implicate protected speech or conduct. This was because the conduct complained of, although somewhat associated with the attorney’s prior lawsuit for unpaid fees, was not the prior litigation itself and some of the conduct occurred well after that litigation. (Id. at pp. 456-457.) The same cannot be said of this case. The conduct plaintiff points to in his complaint occurred just prior to the initiation of litigation and during the litigation, but most importantly the conduct concerns the litigation itself. The demand letter set forth defendants’ position in the wrongful foreclosure action and threatened to sue plaintiff if he did not cease his pursuit of foreclosure or of the 9 percent interest payments. When plaintiff refused, defendants initiated the lawsuit plaintiff alleges underlies his causes of action. While defendants were not successful on all their claims against plaintiff, the fact remains that the prior litigation initiated by defendants was at the center of plaintiff’s causes of action.

Plaintiff also attempts to avoid this conclusion by focusing on the purpose for which defendants allegedly sent him the demand letter and filed the prior action. He argues that because defendants had an intent to extort him and filed the action in a court that lacked jurisdiction, their conduct was not constitutionally protected. To support this proposition, plaintiff relies on Flatley. (Flatley v. Mauro, supra, 39 Cal.4th at p. 299.)

In Flatley, our Supreme Court held “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley v. Mauro, supra, 39 Cal.4th. at p. 320.) This is because a defendant whose assertedly protected activity is “illegal as a matter of law” is not protected by constitutional guarantees of free speech and petition. (Id. at p. 317.) Courts have recognized the Flatley exception is a “narrow” one to be applied only in those two circumstances — when the defendant concedes or the evidence conclusively established illegality. (Optional Capital Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 115, fn. 7 [“A long line of cases have concluded in the wake of Flatley that its exception for illegal conduct is a ‘very narrow’ one”]; Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1478 [“the exception for illegal activity is very narrow and applies only in undisputed cases of illegality”]; Cross v. Cooper (2011) 197 Cal.App.4th 357, 384, 386 [characterizing the Flatley circumstances as “narrow” and also concluding this was not “one of those rare cases in which there is uncontroverted and uncontested evidence that establishes the crime as a matter of law”].)

To be illegal in this context requires the conduct be a violation of criminal law. (Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069, 1083.) In Flatley, our Supreme Court concluded that “based on the specific and extreme circumstances of the case,” the defendant’s conduct therein, which amounted to criminal extortion as a matter of law, was not entitled to the protection of the anti-SLAPP. (Flatley v. Mauro, supra, 39 Cal.4th. at pp. 328, 332-333, fn. 16.)

Here, defendants did not concede the alleged illegality. Plaintiff, however, argues the evidence establishes defendants’ acts constituted extortion as a matter of law. We disagree.

“Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” (Pen. Code, § 518, subd. (a).) “Fear, such as will constitute extortion, may be induced by a threat of any of the following: [¶] 1. To do an unlawful injury to the person or property of the individual threatened or of a third person. [¶] 2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. [¶] 3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. [¶] 4. To expose a secret affecting him, her, or them. [¶] 5. To report his, her, or their immigration status or suspected immigration status.” (Pen. Code, § 519.)

While plaintiff argues that defendants concede they sent him the demand letter, he fails to demonstrate how the contents of the demand letter amount to an attempted extortion as a matter of law. Indeed, defendants did not threaten an unlawful injury to plaintiff or his property, did not accuse plaintiff of committing a crime, or impute to him a deformity, disgrace, or crime. Neither did defendants threaten to expose a secret of plaintiff’s or report his immigration status. To the extent the letter threatened to financially ruin plaintiff if he proceeded with the foreclosure, this did not rise to the level of extortion. It is well-settled that threatening to do something that a person has a legal right to do is not a threat to commit an unlawful injury. (People v. Kaufman (2017) 17 Cal.App.5th 370, 394; see CALCRIM No. 1830; 2 Witkin et al., Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 122, p. 166.) Defendants had the right to litigate the wrongful foreclosure action in the superior court where the property was located. Based on plaintiff’s evidence, defendants did nothing more than share with plaintiff the cost-benefit analysis of litigating the matter and point out it would be better if plaintiff did not pursue the foreclosure. Nothing defendants said in the letter was extortionate within the meaning of Penal Code sections 518 and 519. As the Flatley court cautioned, “our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 332, fn. 16.) Thus, the alleged extortion has not been conclusively established as a matter of law and consequently, the Flatley exception does not apply to plaintiff’s case. /

Because the Flatley exception does not apply, the trial court properly found defendants met their burden under the first prong of the anti-SLAPP statute in that the conduct complained of arose from protected petitioning activity. Further, because plaintiff does not challenge the court’s finding on the second prong — that he would not likely prevail on the merits — we end our analysis here and conclude the court’s granting of defendants’ anti-SLAPP motion was proper.

Similarly, plaintiff’s challenge to the court’s statement of decision is unavailing. He argues the trial court’s statement of decision did not comply with section 632 because it failed to include the factual and legal basis for the court’s decision and was prepared before the hearing, indicating the court did not take oral argument into consideration when making its ruling. Plaintiff’s argument rests on the assumption the court granted his request to provide a statement of decision when, in fact, it denied the request. The court reasoned a statement was not required and then issued its tentative decision to the extent a statement was required. The trial court was correct in deciding a statement of decision was not required, and thus, plaintiff’s claim lacks merit. (Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620, 625; see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [“Cases decided under section 632 generally have held that a statement of decision is not required upon decision of a motion”].)

II

The Trial Court Properly Awarded The Warrens Attorney Fees

Plaintiff contends the trial court erred by awarding attorney fees because it lacked jurisdiction to do so since he had already filed a notice of appeal in this court. He further argues attorney fees were improper because Robert Sinclair represented himself when filing the anti-SLAPP motion. Relatedly, he challenges the court’s ruling on his motion to vacate the attorney fee award, raising the same jurisdictional argument raised in the underlying motion. He further contends the court abused its discretion when ruling on that motion because the record reflects it was biased against him. We disagree in all regards.

Generally, a trial court retains jurisdiction to award attorney’s fees after the entry of a judgment or order, notwithstanding an appeal from the judgment or order. (See Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 463 [“The perfecting of defendants’ appeal . . . did not automatically stay proceedings in the trial court to award fees and costs under [the anti-SLAPP statute]”]; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 487 [appeal from grant of defendants’ summary judgment motion did not deprive trial court of jurisdiction to consider defendants’ request for attorney’s fees and costs because costs, “though embraced in the

action, . . . was . . . incidental to the merits” of the appeal]; In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140 [order granting attorney’s fees following appeal of order denying termination of spousal support “is one concerning a ‘matter embraced in the action [which is] not affected by the . . . order’ previously appealed from”].) We see no reason to reach a different result here, thus we reject plaintiff’s jurisdictional argument as it relates to the motion for attorney fees and his motion to vacate.

We also reject plaintiff’s argument that Robert Sinclair was not entitled to attorney fees because he represented himself. We note plaintiff did not raise this argument in the trial court; however, because defendants do not argue forfeiture, we will reach the merits. We also note that plaintiff does not challenge the trial court’s calculation of attorney fees and limits his argument to Robert Sinclair’s entitlement to those fees.

“ ‘ “The issue of a party’s entitlement to attorney’s fees is a legal issue which we review de novo.” ’ ” (Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 252.) With certain exceptions, the anti-SLAPP statute provides for a mandatory award of attorney fees to a defendant who prevails on a special motion to strike. (§ 425.16, subd. (c)(1).) “An exception to this fee-shifting provision applies to self-represented attorneys.” (Ellis, at p. 253.) “[A] party, whether or not he is an attorney, who is not represented by counsel and who litigates an anti-SLAPP motion on his own behalf may not recover attorney fees under the statute.” (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.) This rule is based on the premise that “an ‘attorney who chooses to litigate in propria persona’ by that choice ‘does not pay or become liable to pay consideration in exchange for legal representation.’ ” (Ellis, at p. 253, citing Trope v. Katz (1995) 11 Cal.4th 274, 292.) Similarly, when a law firm defendant is represented in litigation by the law firm’s own attorneys (or closely associated “of counsel” attorneys), the law firm is a self-represented party and thus cannot recover attorney fees. (Soni v. Wellmike Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1490.)

Here, it was not Robert Sinclair or his law firm who moved for attorney fees; it was the Warrens. Plaintiff sued the Warrens who found legal representation in Robert Sinclair and his firm. “Where an attorney-client relationship exists, the courts uniformly allow for the recovery of attorney fees . . . .” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524.) This principle applies to attorney fees under the anti-SLAPP statute. (Ibid. [“[c]ases that have allowed the recovery of attorney fees under the anti-SLAPP statute are similarly marked by the existence of an attorney-client relationship”].) Thus, even though plaintiff sued Robert Sinclair and his law firm, and those parties would not be entitled to attorney fees if they so moved, the Warrens were entitled to attorney fees because they did not represent themselves in the action. Accordingly, the court did not err by awarding attorney fees.

As to plaintiff’s claim of judicial bias during his motion to vacate, that too lacks merit. As an initial matter, plaintiff has forfeited this contention by not raising it in the trial court. (People v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Further, we note that because plaintiff’s appellate briefs contain no legal analysis, we are not required to consider his argument at all but could simply deem it waived. (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.) Nevertheless, we will consider plaintiff’s argument, bearing in mind that he has the burden, as the appellant, of overcoming a presumption that the judgment is correct by affirmatively demonstrating prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

In considering plaintiff’s claim that the trial judge was biased against him, we are guided by the following principles: “The trial judge should be judicial, impartial and open-minded with respect to the issues, evidence, parties, witnesses, and counsel; the judge’s manner should be temperate and courteous. Conduct that does not meet these

standards may call for a mistrial, the granting of a new trial, or reversal on appeal.” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 242, p. 294.) However, “ ‘ “[o]ur role . . . is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the party] a fair, as opposed to a perfect” ’ ” hearing. (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 536-537.)

Plaintiff’s complaint is with the trial court’s handling of his motion to present oral testimony and with the court’s reprimanding him for referring to opposing counsel without the mister prefix. Neither of these complaints is sufficient to show prejudice or that plaintiff was denied a fair hearing. While the court stated it overlooked plaintiff’s motion to present testimony, it considered the motion and found that testimony was unnecessary given that this judicial officer had presided over the entire case and was familiar with the facts. Further, the trial court had read plaintiff’s moving papers and was familiar with the arguments regarding his motion to vacate. There is nothing to indicate that the court disregarded plaintiff’s argument advanced in his moving papers.

Further, there is nothing in the court’s reprimand to suggest it disregarded plaintiff’s substantive arguments or treated him unfairly. “When an attorney engages in improper behavior, such as ignoring the court’s instructions or asking inappropriate questions, it is within a trial court’s discretion to reprimand the attorney, even harshly, as the circumstances require.” (People v. Guerra, supra, 37 Cal.4th at p. 1111.) Upon our review of the record, we are satisfied the trial court was not biased against plaintiff and that he received a fair hearing.

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Hoch, J.