Mink v. Moda CA2/4 ( 2023 )

Filed 6/1/23 Mink v. Moda CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
LYLE R. MINK et al., B313022
Cross-complainants and Los Angeles County
Respondents, Super. Ct. No.
19SMCV01498
v.
KEVIN MODA,
Cross-defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, H. Jay Ford III, Judge. Affirmed.
Bhola and Associates and Vip Bhola for Cross-Defendant
and Appellant.
Weiss & Zaman, Thomas J. Weiss and Shawn Zaman for
Cross-Complainants and Respondents.
INTRODUCTION
Kevin Moda sued his former lawyer, and the lawyer’s law
firm. The lawyer and his firm cross-complained for, among other
things, unpaid fees. Moda now appeals from the trial court’s
order granting in part and denying in part Moda’s special motion
to strike the cross-complaint under Code of Civil Procedure1
section 425.16 (i.e., an anti-SLAPP motion). For the reasons
discussed below, we affirm.
BACKGROUND
In October 2018, Moda signed an attorney-client fee
contract with Lyle R. Mink and Lyle R. Mink, a Law Corporation
(collectively, “Mink”), by which Moda retained Mink to represent
him and his two LLCs in Mazgani v. Moda, Case No. BC607465
(the Mazgani action). The record reflects Mink represented Moda
and his LLCs from October 2018 to August 2019.
In August 2019, Moda sued Mink for damages allegedly
sustained as a result of Mink’s malfeasance and deficient
representation in the Mazgani action and a related case.2 Moda’s
operative complaint asserts Mink is liable for legal malpractice
and breach of fiduciary duty.
In December 2020, Mink filed a cross-complaint against
Moda, asserting claims for breach of contract (first cause of
action) and quantum meruit (second cause of action). With
respect to his breach of contract claim, Mink alleged “Moda
1 All undesignated statutory references are to the Code of
Civil Procedure.
2 Moda also sued Kasey Diba and Finnigan and Diba, a Law
Corporation. Neither defendant is a party this appeal.
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engaged in conduct that constituted a material breach of [the
parties’ attorney-client fee] contract, a material failure of
consideration (both current and prospective), and frustration of
purpose . . . .” Specifically, in paragraph 14 of the cross-complaint
(Paragraph 14),3 Mink alleged Moda failed to provide Mink with
necessary information; failed to be truthful with Mink; failed to
keep Mink informed of important developments; hired another
attorney to try the Mazgani action without Mink’s prior
knowledge or consent; substantially expanded the amount of
work Moda wanted Mink to perform; failed to provide Mink with
evidence required for trial preparation; and presented Mink with
“conflicting, impossible, [and] unethical” instructions and
requests. Consequently, Mink alleged, Moda “caused Mink . . . to
terminate his representation of Moda and the LLCs[,]” and
“required Mink to make a motion to be relieved [as counsel] for
the LLCs[,]” but “then opposed the motion for no legally
cognizable reason.” Based on Moda’s alleged conduct, Mink’s first
cause of action sought “at least $124,625” in damages.
In support of his quantum meruit claim, Mink realleged the
allegations underlying his breach of contract claim. He then
alleged: “Within the past two years, in Los Angeles California,
Mink furnished work, labor[,] and professional services to Moda
at his . . . special request. The reasonable value of the services
that have not been paid for is at least $124,625. [¶] . . . This sum
has not been paid notwithstanding that demand has been made
therefor. There is now due and owing, and unpaid from Moda[,]
the sum of $124,625 together with interest at the rate of 10% per
annum thereon.”
3 Paragraph 14 consists of one primary paragraph followed
by nine sub-paragraphs, labeled (a) through (i).
3
Moda then filed his anti-SLAPP motion. He sought to strike
the cross-complaint in its entirety, and to recover attorneys’ fees
and costs relating to his motion.
The trial court heard Moda’s anti-SLAPP motion on April
20, 2021, and took it under submission. Six days later, the court
granted in part and denied in part Moda’s motion.
The trial court began its analysis by determining the
allegations in Paragraph 14 demonstrated Mink’s breach of
contract claim largely arises out of protected activity within the
purview of section 425.16, subdivision (e). In so doing, it first
concluded “Moda’s filing of an opposition to Mink’s motion to be
relieved as the LLC’s counsel qualifies as protected conduct
under [section 425.16, subdivision] (e)(1).”
The trial court then determined Moda’s other alleged acts,
described in Paragraph 14, constituted protected activity under
section 425.16, subdivision (e)(2). On this point, the court
explained: “Mink alleges Moda breached the attorney-client fee
agreement by engaging in certain conduct in connection with
Mink’s defense of Moda in the Mazgani litigation. All of Moda’s
alleged conduct (1) related to substantive issues under
consideration or review by a judicial body, the Mazgani litigation
(2) was directed to an interested person, i.e., Mink, who was
counsel of record, and (3) arose out of the litigation, e.g.[,] failing
to respond to demands for information from Mink for purposes of
representing Moda in the Mazgani litigation, demanding that
Mink file a motion for terminating sanctions in that litigation,
demanding that Mink perform additional work on the litigation,
giving instructions and making requests that were conflicting,
impossible[,] or unethical in connection with that litigation[,] and
hiring additional counsel without consulting Mink.”
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Subsequently, the trial court determined that, in addition
to the conduct described in Paragraph 14, Mink’s cross-complaint
and his opposition to Moda’s motion reflected his breach of
contract claim “is [also] based in part on Moda’s failure to pay
Mink’s fees.” It held that “Moda’s failure to pay Mink’s fees
[owed] under the attorney-client fee agreement does not qualify
as protected conduct under either [section 425.16, subdivision]
(e)(1) or (e)(2)[,]” because: “Failure to pay fees is not a statement
before a judicial body, nor [is] it conduct in connection with an
issue under consideration by a judicial body. The Mazgani
litigation had nothing to do with whether Mink was entitled to
payment for his services therein.”
Accordingly, in applying the second prong of the anti-
SLAPP statute to Mink’s first cause of action, the trial court
considered whether Mink made a prima facie showing of facts to
sustain a favorable judgment for breach of contract based on the
conduct alleged in Paragraph 14 that the court had found to be
protected activity. It concluded Mink failed to meet his burden
and granted the anti-SLAPP motion with respect to those aspects
of the claim. The court denied the motion, however, to the extent
Mink’s first cause of action was based on Moda’s failure to pay
Mink’s fees.
Turning to the second cause of action, the trial court
determined “Moda fail[ed] to establish that [Mink’s claim] for
quantum meruit arises from protected conduct.” In so doing, the
trial court concluded Mink’s incorporation of Paragraph 14 into
the second cause of action did not establish the claim arose from
the acts alleged therein. In support of this conclusion, the court
explained: “None of the acts alleged in [Paragraph] 14 supply an
element of the quantum meruit claim, which is based on
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nonpayment of fees in contravention of Moda’s allege[d] promise
to pay Mink for legal services rendered.” Therefore, the trial court
denied the anti-SLAPP motion with respect to Mink’s second
cause of action.
Finally, “[i]n light of Moda’s substantial, but not complete
success [on his anti-SLAPP motion],” the trial court awarded
Moda $10,594 in attorneys’ fees and costs.
DISCUSSION
I. Governing Principles and Standard of Review
“We review de novo a trial court’s decision on an anti-
SLAPP motion. [Citation.] The anti-SLAPP statute requires a
two-step process: ‘At the first step, the moving defendant bears
the burden of identifying all allegations of protected activity, and
the claims for relief supported by them. . . . If the court
determines that relief is sought based on allegations arising from
activity protected by the statute, the second step is reached.
There, the burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated. The court, without resolving
evidentiary conflicts, must determine whether the plaintiff’s
showing, if accepted by the trier of fact, would be sufficient to
sustain a favorable judgment. If not, the claim is stricken.’
[Citation.] In making these determinations the court considers
‘the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.’” (Briganti v.
Chow (2019) 42 Cal.App.5th 504, 508.)
A moving defendant satisfies his or her burden under the
first prong of the anti-SLAPP statute by “‘demonstrating that the
act underlying the plaintiff’s cause fits one of the categories
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spelled out in section 425.16, subdivision (e)[.]’” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) That statute defines
protected activities as: “(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, (3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of
public interest, (4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e).)
For purposes of the anti-SLAPP statute’s first prong, “the
critical consideration is whether the cause of action is based on
the defendant’s protected free speech or petition activity.”
(Navellier, supra, 29 Cal.4th at p. 89, original italics.) “To
determine whether a claim arises from protected activity, courts
must ‘consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently
form the basis for liability.’” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson).)
II. Analysis
Moda contends the trial court erred by denying his anti-
SLAPP motion with respect to Mink’s second cause of action.
Although not entirely clear, he appears to raise two arguments in
support of his position. We address each in turn.
First, Moda argues that by concluding Mink’s quantum
meruit claim is not covered by the anti-SLAPP statute, the trial
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court erroneously “carved out an exception to applying the anti-
SLAPP statute[ to] attorneys’ lawsuits against their former
clients for fees.” Mink responds that rather than creating an
exception to the anti-SLAPP statute, the trial court correctly
applied the law to conclude his quantum meruit claim “is not one
arising from protected activity.” As discussed below, we agree
with Mink.
As an initial matter, we note Moda’s contention is
unsupported by citations to pertinent legal authority or reasoned
argument clearly explaining why reversal is required based on
his cursory assertion of error. Under these circumstances, we
conclude he has forfeited his argument. (Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852 [points of error raised
but unsupported by reasoned argument and citations to legal
authority may be treated as forfeited].)
In any event, the argument is meritless. The trial court did
not—as Moda suggests—conclude the anti-SLAPP statute never
applies to lawsuits by attorneys seeking fees from former clients.
Instead, the court denied Moda’s motion with respect to Mink’s
second cause of action because it determined “Moda fail[ed] to
establish that [the claim] arises from protected conduct under
[section 425.16, subdivision (e)].” In so doing, the court applied
well-settled legal principles governing the first prong of the anti-
SLAPP statute, and ultimately concluded: (1) the conduct
forming the basis of Mink’s quantum meruit claim is Moda’s
failure to pay fees for legal services furnished by Mink at Moda’s
request; (2) “[n]one of the acts alleged in [Paragraph] 14 supply
an element of the quantum meruit claim[ ]”; and (3) Moda’s
failure to pay fees for services rendered is not protected activity
under section 425.16, subdivision (e).
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Next, Moda appears to contend the trial court erred by
concluding Mink’s quantum meruit claim does not arise out of the
same protected activity underlying his breach of contract claim.
In support of his argument, Moda emphasizes Mink incorporated
paragraphs 1 through 15 of the cross-complaint into his second
cause of action.
Moda’s argument is unavailing. Having reviewed the
record, we agree with the trial court that although the second
cause action incorporates by reference all the allegations in
support of Mink’s first cause of action, the cross-complaint
unambiguously reflects Mink’s quantum meruit claim is based on
Moda’s alleged failure to compensate Mink for legal services
performed at Moda’s request. As the trial court observed:
“Quantum meruit refers to the well-established principle that
‘the law implies a promise to pay for services performed under
circumstances disclosing that they were not gratuitously
rendered. [Citation.] To recover in quantum meruit, a party need
not prove the existence of a contract [citations], but it must show
the circumstances were such that ‘the services were rendered
under some understanding or expectation of both parties that
compensation therefor was to be made’ [citations].” (Huskinson &
Brown v. Wolf (2004) 32 Cal.4th 453, 458.) Moda has not
explained—and we fail to see—how the alleged conduct supplying
the elements of this claim (i.e., his failure to pay Mink for
services rendered) is “protected free speech or petitioning
activity[ ]” (Navellier, supra, 29 Cal.4th at p. 89), which “‘fits one
of the categories spelled out in section 425.16, subdivision (e)[.]’”
(Id. at p. 88; see also Wilson, supra, 7 Cal.5th at p. 884.)
In sum, for the reasons discussed above, Moda has not
demonstrated the trial court erred by determining he failed to
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show Mink’s second cause of action arises out of protected
activity. Accordingly, we conclude the trial court correctly denied
Moda’s anti-SLAPP motion with respect to that claim.4
4 In light of this conclusion, we need not address Moda’s
contentions appearing to assert Mink failed to satisfy his burden
on the second prong of the anti-SLAPP statute with respect to the
second cause of action. (Navellier, supra, 29 Cal.4th at p. 89
[“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” (original italics)].) In addition,
we decline to address Moda’s argument, raised for the first time
in his reply brief, that the entire cross-complaint should be
stricken “as senseless gamesmanship.” (See Reichardt v. Hoffman
(1997) 52 Cal.App.4th 754, 764 [in general, points raised for the
first time in a reply brief will not be considered].)
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DISPOSITION
The order is affirmed. Respondents shall recover their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, Acting P. J.
We concur:
COLLINS, J.
ZUKIN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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