Padilla v. Limitless Trading Co., LLC CA2/7 ( 2022 )

Filed 5/17/22 Padilla v. Limitless Trading Co., LLC CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CHAD A. PADILLA, B307560
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV44537)
LIMITLESS TRADING CO.,
LLC et al.,
Defendants and
Respondents.
APPEAL from a judgment and orders of the Superior Court
of Los Angeles County, Patricia D. Nieto, Judge. Reversed and
remanded.
Chad Padilla, in pro. per., for Plaintiff and Appellant.
Taylor English Duma and William B. DeClercq for
Defendants and Respondents.
____________________
Chad Padilla, representing himself, sued Limitless Trading
Co., LLC (Limitless), Aleem Wadhwania, Shabir Samiar, William
DeClercq and DeClercq Law Group (DLG) for defamation,
alleging they had falsely accused him of the unauthorized
practice of law and extortion beginning in November 2019,
including in a lawsuit filed December 9, 2019. Limitless,
Wadhwania, DeClercq and DLG (collectively Limitless parties),
but not Samiar, filed a special motion to strike the complaint
pursuant to Code of Civil Procedure section 425.16.1 The trial
court granted the motion, ruling Padilla’s complaint arose from
protected activity (the allegedly defamatory lawsuit); Padilla
failed to present evidence making a prima facie showing
sufficient to sustain a favorable judgment; and, in any event,
Padilla’s defamation claim was barred by the absolute litigation
privilege (Civ. Code, § 47, subd. (b)). The court subsequently
dismissed Samiar based on Padilla’s failure to timely serve the
complaint; dismissed the entire action; and awarded Limitless
and Wadhwania $22,500 in attorney fees.
We reverse the judgment; the order granting the
section 425.16 motion to the extent it included allegations that
the Limitless parties had defamed Padilla prior to filing their
lawsuit (actually, a cross-complaint), conduct that is not
protected speech or petitioning activity within the meaning of the
statute; and the order dismissing Samiar. We also reverse the
order awarding attorney fees and remand with directions for the
trial court to reconsider the appropriate award in light of our
partial reversal of its order granting the special motion to strike.
1 Statutory references are to this code unless otherwise
stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Limitless’s Cross-complaint in the Lopez Action and
Padilla’s Defamation Lawsuit
Juan Lopez, a former employee of Limitless, representing
himself, sued Limitless, “Shabir Doe” and numerous Doe
defendants on September 20, 2019, alleging causes of action for
disability discrimination, harassment and retaliation in violation
of California’s Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900 et seq.); wrongful termination in violation of public
policy; and intentional infliction of emotional distress.2
On December 9, 2019 Limitless, represented by DeClercq,
filed a cross-complaint against Lopez, Padilla and a third
individual, Javier De la Rosa,3 for civil extortion and against
Padilla for engaging in the unauthorized practice of law in
violation of Business and Professions Code section 6126,
constituting an unlawful business practice in violation of
Business and Professions Code section 17200 et seq. The cross-
2 We grant the Limitless parties’ request for judicial notice of
the complaint in Lopez v. Limitless Trading Co., LLC (Super. Ct.
L.A. County, 2019, No. 19STCV33425) and Limitless’s cross-
complaint in that action, as well as the complaint in De la Rosa v.
Limitless Trading Co., LLC (Super. Ct. L.A. County, 2019,
No. 19STCV43972). We deny as irrelevant the remaining
portions of their request for judicial notice.
3 The cross-complaint alleged De la Rosa had threatened to
file a lawsuit against Limitless unless Limitless met a settlement
demand. On December 9, 2019 De la Rosa filed a complaint
against Limitless alleging causes of action for sexual orientation
discrimination, harassment and retaliation in violation of FEHA;
wrongful discharge in violation of public policy; and intentional
infliction of emotional distress.
3
complaint alleged, in part, that Padilla, who is not an attorney,
was in the business of assisting self-represented litigants; Lopez
and De la Rosa were Padilla’s clients; and Padilla’s actions, which
included meeting and conferring regarding a contemplated
demurrer and discovery responses, constituted the unauthorized
practice of law. It further alleged that Lopez or Padilla
purporting to be Lopez had threatened to increase fees and costs
in Lopez’s lawsuit against Limitless unless Limitless paid a
settlement to Lopez, Padilla and De la Rosa; that Lopez and
Padilla solicited and received from De la Rosa a false declaration
that Limitless personnel had engaged in acts of violence against
Lopez; and that Lopez and Padilla had “repeatedly threatened
Cross-Complainant with acts of violence, meritless litigation, and
improper actions that would be for the sole purpose of increasing
attorney’s fees and costs of defense.”
On December 12, 2019—three days after Limitless filed its
cross-complaint in the Lopez action—Padilla, representing
himself, filed the complaint for defamation at issue in this
appeal, naming as defendants Limitless, Wadhwania, Samiar,
DeClercq and DLG.4 Padilla’s complaint described Limitless as
4 On February 20, 2020, four weeks after the Limitless
parties filed their special motion to strike and before filing his
opposition memorandum, Padilla filed a first amended complaint
for defamation, alleging that, beginning in January 2020, the
Limitless parties and Samiar made defamatory comments about
Padilla “to law firms and others in the Los Angeles area.” The
amended complaint, which omitted any reference to Limitless’s
cross-complaint in the Lopez action, is not an issue in this appeal.
(Cf. former § 472, subd. (b) (Stats. 2017, ch. 273, § 3), in effect
until January 1, 2021, providing that the right to file an amended
pleading once without leave of court before the date for filing an
4
“a dispensary, including Cali Kulture on Wall St.”; Wadhwania
(misnamed “Wadhwani”) as the owner of Limitless; Samiar as the
general manager of Limitless; and DeClercq as the owner of DLG.
Paragraph 10 of the complaint, under the heading Factual
Allegations, alleges, “In November 2019, Defendants . . . viciously
began making meritless and false allegations against Padilla.
The false allegations include, but are not limited to, the
unauthorized practice of law, making verbal threats, threatening
acts [of] violence against them, attempting to extort money from
them.”5 The identical language is repeated as paragraph 28
under the heading for the defamation cause of action.
Paragraph 11 alleges, “These false allegations involving
Padilla were put [in] writing by Defendants by filing an action
against Padilla. These false allegations were very detrimental to
Padilla’s life because it portrays Padilla as a scam artist and
fraud who threatens verbal and physical violence if he doesn’t get
what he wants.” The identical language was repeated as
paragraph 29.
After alleging that he had explained to the defendants he
was not engaging in the unauthorized practice of law, Padilla
alleged in paragraphs 13 and 31, “[I]nstead of accepting that
Defendants were making false and baseless accusations,
Defendants not only repeated these false accusations to others
but put it in writing. On December 9, 2019, Defendants filed an
action against Padilla accusing him of all of these wrongdoings.”
Padilla alleged the statements made concerning him were “false
opposition to a demurrer or motion to strike “shall not apply to a
special motion brought pursuant to Section 425.16.”)
5 Unnecessary capital letters are omitted when quoting from
Padilla’s complaint.
5
and slander” and constituted “slander on their face” because they
accused him of a crime and “expose[d] him to hatred, contempt,
ridicule, and obloquy.”
2. The Limitless Parties’ Special Motion To Strike
On January 27, 2020 the Limitless parties moved pursuant
to section 425.16 to strike Padilla’s complaint, arguing the cause
of action for defamation arose out of the cross-complaint filed by
Limitless in the Lopez action, protected speech and petitioning
activity, and Padilla could not carry his burden of demonstrating
a probability of prevailing on the claim because he had not
alleged, and could not prove, any damages or that he was not, in
fact, engaged in the unauthorized practice of law. The Limitless
parties also argued the statements made in the cross-complaint
were protected by Civil Code section 47, subdivision (b)’s absolute
litigation privilege.
The Limitless parties included as exhibits to their motion
Padilla’s deposition, taken in December 2019, as well as copies of
email exchanges between Padilla and DeClercq regarding the
Lopez lawsuit. Asked at his deposition whether Limitless made
defamatory statements about him in any publication other than
the cross-complaint, Padilla answered, “Not to my knowledge, but
I wouldn’t be surprised if they did.” Asked whether, to his
knowledge, Limitless had spoken to anyone, he answered, “To
you [DeClercq] for sure, and they probably spoke to other—other
friends of theirs. Probably. . . . To my knowledge? No, my best
guess.”
In his opposition to the motion Padilla insisted his
complaint was not based on the cross-complaint in the Lopez
action. Rather, as he alleged, the Limitless parties and Samiar
had “orally defamed” him in statements accusing him of the
6
unauthorized practice of law and civil extortion that were made
prior to the filing of the cross-complaint. Accordingly, he argued,
the Limitless parties had failed to establish his complaint arose
from protected speech or petitioning activity or their statements
were protected by the litigation privilege. Padilla presented no
evidence to support the merits of his defamation claim.
In their reply memorandum, addressing Padilla’s argument
his complaint was predicated on oral statements to unnamed
third parties, the Limitless parties pointed out that the complaint
“does not allege what the purportedly defamatory
communications were, who communicated, to whom, when, why
the alleged communications were false, or how Plaintiff was
harmed by those communications.” In addition, because the
complaint alleged “these false allegations were put in writing” in
the Lopez cross-complaint, the Limitless parties argued the oral
statements “were made, if ever, to ‘achieve the objects of the
litigation.’”
The trial court granted the Limitless parties’ motion after
hearing oral argument on August 5, 2020. While acknowledging
in its order that “there may be some generic allegations of
defamation outside the defamatory complaint,” the court rejected
Padilla’s argument his lawsuit was based on oral statements
made in November 2019 prior to the filing of the cross-complaint,
finding that “[t]he only factual allegations in the Complaint
pertain to the defamatory lawsuit” and “[t]hus, Moving
Defendants have identified a protected activity that forms the
basis for relief of the sole cause of action for defamation.”
Elaborating, the court stated, “Certainly, the allegations
concerning the complaint and the statements therein are the only
factual allegations regarding defamatory statements. They are
7
not ‘incidental’ or ‘contextual’ to the cause of action. [Citation.]
They appear to be the only substantive basis of the Complaint
and the principal claim at issue. [Citation [to a 2017 Second
District case “endorsing the principal thrust/gravamen
analysis”].] These allegations form the basis of recovery for
defamation.”
Turning to the second step of the required analysis, the
court noted Padilla had provided no evidence to support the
merits of his claim, thereby failing to make the necessary prima
facie showing. In addition, the court ruled, the litigation
privilege barred the defamation claim as to any allegations
concerning the defamatory cross-complaint.
The court ordered attorney fees, requested by the Limitless
parties in their motion, to be determined pursuant to a
separately filed noticed motion.
3. Dismissal of Samiar for Failure To Timely Serve the
Complaint
At the case management conference held the same day as
the hearing on the Limitless parties’ special motion to strike,
after inquiring as to the status of service on Samiar, the court
ordered Yazan Naal, the individual who had purportedly served
the summons and complaint on behalf of Padilla, and defendants’
counsel DeClercq to submit declarations regarding service. The
court continued the case management conference to September 3,
2020.
Naal, who is not a registered process server, filed a
declaration explaining he had served the summons and complaint
for each defendant named in Padilla’s lawsuit on December 12,
2019 “upon counsel of record for Defendants, William DeClercq,”
at DeClercq’s business address. Naal declared he asked the
8
receptionist at the office if he could see DeClercq to give him
copies of the lawsuit. After speaking by telephone to DeClercq,
the receptionist told Naal that DeClercq said he could leave all
documents with the receptionist, which Naal did. Naal added
that at no time did DeClercq try to contact Naal to say he was not
the correct agent for service for any of the defendants. Naal
attached as an exhibit the proof of service of summons on
“William DeClerq [sic] on behalf of Shabir Samiar.”
In his declaration DeClercq stated he had agreed via email
exchange on December 10 and 11, 2019 to accept service of
Padilla’s complaint on behalf of Limitless and himself (but not
electronically) and attached a copy of the summons left at the
reception desk at his offices, which identified the defendants as
Limitless, DeClercq and Does 1-100. DeClercq also declared the
receptionist was not authorized to accept service of process. A
declaration from Wadhwania stated Limitless had no employee
named Shabir Samiar.
In a memorandum of points and authorities filed with the
DeClercq and Wadhwania declarations, counsel quoted California
Rules of Court, rule 3.110(b),6 which provides a complaint must
be served on all named defendants and proofs of service on those
defendants filed with the court within 60 days after filing of the
complaint. Counsel argued the court should dismiss the
complaint as to Samiar because Padilla had failed to timely effect
service and because no such person was employed by Limitless.
Counsel also argued, “Plaintiff has failed to show why there
would be any different result [on a special motion to strike] as to
6 References to rule or rules are to the California Rules of
Court.
9
the unserved defendant, and accordingly, there can be no
prejudice from an order of dismissal.”
At the case management conference on September 3, 2020,
after noting it had reviewed the declarations regarding service on
Samiar, the court ordered the entire action dismissed with
prejudice.
4. The Motion for Attorney Fees
On September 18, 2020 the Limitless parties moved for
$21,000 in attorney fees (42 hours at $500/hour) and $75.15 in
costs for having successfully moved to strike Padilla’s complaint
pursuant to section 425.16. Padilla opposed the motion, arguing
there was inadequate evidentiary support for the fees requested
and DeClercq and DLG, as self-represented attorneys, were not
entitled to fees. In a reply memorandum counsel asserted the
fees requested were incurred by Limitless and Wadhwania and
did not include fees attributable to the defense of DeClercq or
DLG, his professional corporation. DeClercq and DLG withdrew
their joinder in the motion. In a supplemental declaration
DeClercq stated Limitless was not billed for any work that
benefitted DeClercq. In a further supplemental declaration, filed
after the original hearing on the fees motion had been continued,
counsel requested an additional $1,500 in fees for work in
connection with the request for fees.
On November 3, 2020 the court granted Limitless and
Wadhwania’s motion, awarding $22,575.15 in fees and costs.
Padilla filed a timely notice of appeal from the order
dismissing his lawsuit and a second timely notice of appeal from
the subsequently entered judgment, which included the award of
attorney fees. We consolidated the two appeals.
10
DISCUSSION
1. The Special Motion To Strike: Governing Law and
Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “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, subd. (b)(1); see Rand Resources, LLC. v. City of Carson
(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of
action only if the cause of action (1) arises from an act in
furtherance of the right of petition or free speech ‘in connection
with a public issue,’ and (2) the plaintiff has not established ‘a
probability’ of prevailing on the claim”].)
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(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.”
In ruling on a special motion to strike under section 425.16,
the trial court engages in a now-familiar two-step process. “First,
11
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.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral); accord, Bonni v. St. Joseph Health System (2021)
11 Cal.5th 995, 1009 (Bonni); Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1061 (Park).)
To make its determination the court must consider the parties’
pleadings and affidavits or declarations describing the facts on
which liability or defenses are predicated. (§ 425.16, subd. (b)(2).)
As to the first step of the analysis, “[a] claim arises from
protected activity when that activity underlies or forms the basis
for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063.) Thus,
“[t]he defendant’s first-step burden is to identify the activity each
challenged claim rests on and demonstrate that that activity is
protected by the anti-SLAPP statute. 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.’” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson);
see Bonni, supra, 11 Cal.5th at p. 1009 [“[t]he defendant’s burden
is to identify what acts each challenged claim rests on and to
show how those acts are protected under a statutorily defined
category of protected activity”]; Park, at p. 1060.)
A motion pursuant to section 425.16 need not challenge an
entire cause of action as pleaded in the complaint. (Bonni, supra,
11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather,
“courts should analyze each claim for relief—each act or set of
acts supplying a basis for relief, of which there may be several in
12
a single pleaded cause of action—to determine whether the acts
are protected and, if so, whether the claim they give rise to has
the requisite degree of merit to survive the motion.” (Bonni, at
p. 1010; accord, Baral, at p. 395.)
“As to the second step inquiry, a plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.’” (Sweetwater Union High School
Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940;7 accord,
Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)
“‘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.’” (Monster
Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
We review de novo an order granting or denying a special
motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th
at p. 884; Park, supra, 2 Cal.5th at p. 1067.)
7
Although the Supreme Court in Sweetwater Union High
School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931referred generally to “competent admissible evidence,” the Court
held evidence that is potentially admissible at trial, but not
presented in admissible form, could be considered in determining
whether the plaintiff had demonstrated a probability of success
on the merits. (Id. at p. 949.)
13
2. The Trial Court Erred in Granting the Special Motion To
Strike in Its Entirety Rather Than Striking Only Those
Allegations of Protected Activity Serving as a Basis for
Relief
“Defamation constitutes an injury to reputation; the injury
may occur by means of libel or slander. [Citation.] In general,
. . . a written communication that is false, that is not protected by
any privilege, and that exposes a person to contempt or ridicule
or certain other reputational injuries, constitutes libel.
[Citations.] A false and unprivileged oral communication
attributing to a person specific misdeeds or certain unfavorable
characteristics or qualities, or uttering certain other derogatory
statements regarding a person, constitutes slander. [Citations.]
. . . [¶] One of the elements of the tort of defamation is
‘publication.’ In general, each time the defamatory statement is
communicated to a third person who understands its defamatory
meaning as applied to the plaintiff, the statement is said to have
been ‘published,’ although a written dissemination, as suggested
by the common meaning of that term, is not required. Each
publication ordinarily gives rise to a new cause of action for
defamation.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)
“The rule that each publication of a defamatory statement gives
rise to a new cause of action for defamation applies when the
original defamer repeats or recirculates his or her original
remarks to a new audience.” (Id. at p. 1243.)
Although Padilla purported to plead a single cause of action
for defamation, as the Supreme Court observed in Bonni, supra,
11 Cal.5th at page 1010 and Baral, supra, 1 Cal.5th at page 382,
there may be more than one act or set of acts supplying a basis
for relief in a single pleaded cause of action; and it is the
responsibility of a court considering the first step of a special
14
motion to strike to analyze each claim for relief to determine
whether those acts are protected speech or petitioning activity.
Padilla’s protestation to the contrary notwithstanding, his
complaint for defamation rests in substantial part on the
allegation that Limitless published in its cross-complaint in the
Lopez action false statements that he had participated in a
scheme of civil extortion and engaged in the unauthorized
practice of law (a claim for libel). As discussed, paragraphs 11
and 29 alleged the defendants put their false charges portraying
Padilla as a violent scam artist in writing “by filing an action
against Padilla”—allegations he averred were “very detrimental
to [his] life.” Paragraphs 14 and 32, in identical language,
alleged, “Even worse for Padilla, Defendants put in writing in
their complaint, which is public record for anyone to see, that
Padilla is a violent person who verbally and physically threatens
others. Defendants put this in writing even though they knew
these were false allegation[s] for the sole purpose of damaging
Padilla’s reputation in the legal world.”
Section 425.16, subdivision (e)(1), identifies as protected
petitioning activity “any written or oral statement or writing
made before a . . . judicial proceeding,” which unquestionably
includes statements made in a pleading. (See ValueRock TN
Properties, LLC v. PK II Larwin Square SC LP (2019)
36 Cal.App.5th 1037, 1046 [section 425.16 protection for
petitioning activities “includes the filing of lawsuits, and
statements and pleadings made in or in preparation for civil
litigation”]; Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965
[“pleadings in connection with civil litigation are covered by the
anti-SLAPP statute”]; see also Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115 [“‘“[t]he constitutional
15
right to petition . . . includes the basic act of filing litigation”’”].)
To the extent the allegations in Limitless’s cross-complaint
supply a basis for relief, therefore, the trial court correctly ruled
the claim arises from activity protected by section 425.16.
Because the Limitless parties carried their first-step burden and
Padilla presented no evidence to demonstrate that aspect of his
cause of action had even minimal merit, those allegations were
properly struck from the complaint.
Although Padilla’s contention his defamation cause of
action concerned only the oral dissemination of false statements
before the filing of the cross-complaint cannot be squared with
the complaint itself, it is equally flawed to simply disregard, as
the Limitless parties argue and the trial court ruled, Padilla’s
allegations of false statements accusing him of a crime, made to
unspecified “others” beginning in November 2019, without
reference to impending litigation or other official proceedings—
that is, his assertion of what essentially constitutes a claim for
slander per se.8 Those allegations, which supply a basis for relief
that falls outside the ambit of section 425.16, are not properly
subject to a special motion to strike.
To be sure, Padilla’s allegations the defendants began
making false charges concerning his unauthorized practice of law
8 Civil Code section 46 defines six categories of slander, the
first of which is a false and unprivileged statement that
“[c]harges any person with crime, or having been indicted,
convicted, or punished for crime.” “A slander that falls within the
first four subdivisions of Civil Code section 46 is slander per se
and requires no proof of actual damages.” (Regalia v. The
Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.)
16
and threats of violence weeks prior to the filing of the cross-
complaint lack specificity. As such, his complaint may be subject
to demurrer or a traditional motion to strike. (Cf. Medical
Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869,
893 [“[c]ase law requires that statements alleged to constitute
libel must be specifically identified, if not pleaded verbatim, in
the complaint [citations]; less specificity is required in the
pleading of slander, given that slander may be charged
by alleging the substance of the defamatory statement”; internal
quotation marks and italics omitted]; Gilbert v. Sykes (2007)
147 Cal.App.4th 13, 32 [an allegation “of a ‘provably false factual
assertion’ . . . is indispensable to any claim for defamation”].) But
that type of challenge to the adequacy of a pleading is not the
function of the first step of the anti-SLAPP analysis. And a
successful demurrer or motion to strike, unlike a motion under
section 425.16, would normally be accompanied by permission to
file an amended pleading to correct the deficiencies identified.
We also are unpersuaded by the Limitless parties’ extended
quotation from Padilla’s deposition, which they argue
demonstrates the lack of merit to his claim defamatory
statements were published to third parties prior to the filing of
the cross-complaint. That may well be the basis for a successful
motion for summary judgment. But the special motion to strike
is framed by the pleading, and the moving party’s first-step
burden is to establish the allegations that provide a basis for
relief arise from protected activity. Padilla’s slander per se
allegations do not. The trial court erred in granting the Limitless
parties’ motion to strike the entire cause of action.
17
3. The Trial Court Erred in Dismissing Samiar
In its order following the case management conference on
September 3, 2020, after reciting that the Limitless parties’
special motion to strike had been granted on August 5, 2020, the
court stated: “Court reviews the declarations provided by Chad
Padilla and William DeClercq, Esq. in regards to service to
Defendant, Shabir Samiar. [¶] After hearing oral argument, the
Court makes the following orders: [¶] The Court orders the
Amended Complaint (1st) filed by Chad Padilla on 02/20/2020
dismissed with prejudice.” The minute order contains no other
findings, and the appellate record does not include a reporter’s
transcript or settled or agreed statement describing any oral
ruling made at the conference.
Although the basis for the court’s dismissal of the action as
to Samiar was not expressly stated on September 3, 2020, when
summarizing the history of the case as part of its ruling on
Limitless and Wadhwania’s motion for attorney fees on
November 3, 2020, the court explained, “On September 3, 2020,
the Court dismissed the entire action with prejudice for failure to
serve the last remaining defendant, Samiar.”
Padilla argues on appeal the dismissal of Samiar was
improper. He relies on Naal’s declaration and the attached proof
of service on DeClercq (as defense counsel) on behalf of Samiar,
as well as a second proof of service of summons, submitted to the
trial court on August 6, 2020, purporting to show personal service
by a registered process server on Samiar (or a person authorized
to receive service of process) for him earlier that day at the office
address of defense counsel.
In their respondents’ brief the Limitless parties argue the
trial court correctly ruled no one by the name of Shabir Samiar
18
had been validly served (and assert no such person ever worked
at Limitless) and “properly exercised its discretion in dismissing
‘Shabir Samiar’ as an unserved defendant whose result would
have been the same.”
To the extent there was a conflict in the evidence whether
DeClercq agreed to accept service on behalf of all named
individual defendants, either through his direct contact with
Padilla or by communicating with Naal through the law firm’s
receptionist, those issues of fact and credibility are the province
of the trial court. As a reviewing court we do not reweigh the
evidence or reconsider credibility determinations. (See Katsura
v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107;
In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th
28, 34.) Accordingly, on the limited record before us on this point,
we have no basis for overturning the trial court’s implied finding
that Samiar was not properly served by Naal.
The renewed effort to serve Samiar, as reflected by the
August 6, 2020 proof of service of summons signed by the
registered process server, presents a somewhat different issue.
The proof of service may well have created a rebuttable
presumption that service had properly been made. (See Evid.
Code, § 647; Floveyor Internat., Ltd. v. Superior Court (1997)
59 Cal.App.4th 789, 795 [“The filing of a proof of service creates a
rebuttable presumption that the service was proper. However,
the presumption arises only if the proof of service complies with
the applicable statutory requirements”].) However, given the
sparse discussion of the service issue in the court’s minute orders
and the absence of a reporter’s transcript or agreed or settled
statement, we cannot tell whether defense counsel presented
information at the September 3, 2020 hearing that rebutted the
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presumption (see Fernandes v. Singh (2017) 16 Cal.App.5th 932,
940 [presumption of Evidence Code section 647 may be rebutted
by contrary evidence]) or the court for some reason did not
actually consider this additional attempt to serve Samiar. As the
appellant, the burden was on Padilla “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.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 609; see Aguilar v. Avis
Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [“[w]e reject
defendants’ claim, therefore, because they failed to provide this
court with a record adequate to evaluate this contention”];
see also Vo v. Las Virgenes Municipal Water Dist. (2000)
79 Cal.App.4th 440, 448 [“[t]he absence of a record concerning
what actually occurred [in the trial court] precludes a
determination that the trial court abused its discretion”].)
Padilla failed to carry this burden.
That said, accepting that as of September 3, 2020 the
individual defendant identified in Padilla’s complaint as
Shamir Samiar remained unserved, it was error for the trial
court to dismiss the complaint as to him. Section 583.420,
subdivision (a)(1), authorizes the trial court to dismiss an action
if service has not been made within two years after the action
was commenced. Padilla’s lawsuit had not yet been pending for
nine months when the court dismissed the action with prejudice.
As the Limitless parties argued in the trial court—an
argument not repeated on appeal—rule 3.110(b) requires the
complaint be served on all named defendants and proofs of
service on those defendants filed with the court within 60 days
after filing of the complaint. But, pursuant to rule 3.110(f), the
court must issue an order to show cause before imposing
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sanctions for a plaintiff’s failure to serve the complaint as
required. No order to show cause was issued in this case, let
alone one that identified dismissal as a possible sanction. Padilla
was entitled, not only under rule 3.110 but also a matter of due
process, to proper notice before the court dismissed his claims
against Samiar. (Cf. Sole Energy Co. v. Hodges (2005)
128 Cal.App.4th 199, 207-208.)9 In addition, dismissal of the
lawsuit as the initial sanction for failing to properly serve a
defendant when the action has not yet been pending for
two years, absent extraordinary circumstances, would constitute
an abuse of discretion. (See generally Lopez v. Watchtower Bible
& Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566,
604-605 [“[a]lthough in extreme cases a court has the authority to
order a terminating sanction as a first measure [citations], a
terminating sanction should generally not be imposed until the
court has attempted less severe alternatives and found them to
be unsuccessful and/or the record clearly shows lesser sanctions
would be ineffective”].) In sum, it was error to dismiss the action
against Samiar even if he had not yet been properly served.
4. The Trial Court Must Reevaluate the Attorney Fee
Award
Subject to certain exceptions not pertinent here, “a
prevailing defendant on a special motion to strike shall be
9 Given our reversal of the judgment in favor of the Limitless
parties, we need not address their problematic argument, made
to the trial court and hinted at in their respondents’ brief, that
the erroneous dismissal of Samiar was harmless or somehow
within the trial court’s broad discretion to control the proceedings
because the action against him would have been dismissed in any
event if he had joined their section 425.16 special motion to
strike.
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entitled to recover his or her attorney’s fees and costs.” (§ 425.16,
subd. (c)(1).) “[A] party need not succeed in striking every
challenged claim to be considered a prevailing party within the
meaning of section 425.16.” (Mann v. Quality Old Time Service,
Inc. (2006) 139 Cal.App.4th 328, 339.)
Unless the results obtained are so insignificant as to
provide no practical benefit, partial success by the moving party
generally “reduces but does not eliminate the entitlement to
attorney fees.” (ComputerXpress, Inc. v. Jackson (2001)
93 Cal.App.4th 993, 1020 [defendants are entitled to recover
attorney fees and costs incurred in moving to strike the claims on
which they prevailed, but not fees and costs incurred in moving to
strike the remaining claims]; accord, Area 51 Productions, Inc. v.
City of Alameda (2018) 20 Cal.App.5th 581, 605.) When counsel’s
work on successful and unsuccessful portions of the motion
overlap, the trial court properly looks to the defendant’s relative
success in achieving his or her objective and may, in its
discretion, reduce the amount of fees awarded for partial success.
(See, e.g., Mann v. Quality Old Time Service, Inc., supra,
139 Cal.App.4th at pp. 344-345.)
Because the trial court erred in granting the Limitless
parties’ special motion to strike in its entirety, its award of
attorney fees to Limitless and Wadhwania as the prevailing
parties failed to consider whether the fees requested should be
reduced for their limited success (that is, what fees should be
awarded for their partial success). A remand to allow the court to
make that assessment is necessary. Padilla can raise in the trial
court his arguments presented on appeal concerning any
necessary allocation of total fees incurred to DeClercq and DLG
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and, if it remains material, the proper calculation of the fees to be
awarded.
DISPOSITION
The judgment and orders granting the special motion to
strike in favor of the Limitless parties, dismissing Samiar and
awarding Limitless and Wadhwania attorney fees are reversed.
The cause is remanded with directions to enter a new order
granting in part the Limitless parties’ special motion to strike
only to the extent it is based on protected litigation activity as
indicated in this opinion and to reconsider the award of attorney
fees to Limitless and Wadhwania in light of our decision. The
parties are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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