Kim v. R Consulting & Sales, Inc.

Filed 8/27/21 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANDY KIM, D076923
Plaintiff and Appellant, (Super. Ct. No. 37-2019-
00023850-CU-MC-CTL)
v.
ORDER MODIFYING OPINION
R CONSULTING & SALES, INC. et al.,
[NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed on July 30, 2021, be modified as
follows:
On page 16, second sentence of the first full paragraph after part II.B,
change “against” to “in favor of” so the sentence reads:
Were we to do so, we would nonetheless affirm the judgment in favor of
R Consulting and Michel because Kim failed to provide a complete record for
us to review.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of part II.B.
There is no change in the judgment.
HUFFMAN, Acting P. J.
Copies to: All parties
2
Filed 7/30/21 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANDY KIM, D076923
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2019-
R CONSULTING & SALES, INC., et 00023850-CU-MC-CTL)
al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of San Diego County,
Richard E. L. Strauss, Judge. Affirmed.
Paul N. Tauger; ONE and Peter R. Afrasiabi for Plaintiff and
Appellant.
Neil, Dymott, Frank, McCabe & Hudson and Matthew R. Souther for
Defendants and Respondents R Consulting & Sales, Inc., Raquel Michel, and
Lance Ricotta.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of part II.B.
Klinedinst, Daniel S. Agle and Robert M. Shaughnessy for Defendants
and Respondents Michael J. Mason, Paul S. Metsch, and Metsch &
Mason, LLP.
INTRODUCTION
In May 2019, Andy Kim filed a lawsuit against law firm Metsch &
Mason, LLP, its partners Paul S. Metsch and Michael J. Mason (collectively,
the law firm defendants), and their clients R Consulting & Sales, Inc.
(R Consulting), Raquel Michel, and Lance Ricotta for malicious prosecution,
abuse of process, and intentional infliction of emotional distress. In his suit,
Kim alleged the defendants wrongfully initiated contempt charges in
connection with their enforcement of a civil judgment against him in
R Consulting v. Info Tech et al. (Super. Ct. San Diego County, 2015, No. 37-
2015-00002561-CU-BC-CTL.) The defendants filed motions to strike the
complaint under Code of Civil Procedure1 section 425.16, the anti-SLAPP
statute, and the court granted the motions and entered judgments against
Kim. Kim appeals the court’s grant of the anti-SLAPP motions, contending:
(1) an order to show cause regarding contempt can form the basis of a
malicious prosecution action; (2) the trial court erred in concluding that Kim
could not show a probability of success on his malicious prosecution claim
because it applied an incorrect standard to determine whether the
defendants had probable cause to seek contempt; and (3) the defendants
acted maliciously by continuing to prosecute the contempt action following
1 Further unspecified statutory references are to the Code of Civil
Procedure.
2
our decision in R Consulting & Sales, Inc. v. Info Tech Corporation et al. (Jan.
18, 2019, D072492) [nonpub. opn.].
We conclude that the defendants’ motion for an order to show cause
(OSC) re contempt does not form a basis for a malicious prosecution action
here, preventing Kim from demonstrating a probability of success on the
merits, and we will affirm the judgments in favor of the law firm defendants,
R Consulting, and Michel on that basis. Because we conclude an OSC re
contempt does not form a basis for a malicious prosecution action, we do not
reach Kim’s arguments that the court applied an incorrect standard in
reaching its decision or that defendants acted maliciously in pursuing
contempt. Further, because Kim failed to provide a complete record on
appeal, even were we to reach the second and third issues, we would be
unable to fully evaluate the judgment in favor of R Consulting and Michel,
and we would affirm that order and judgment on that basis. Kim did not file
a notice of appeal regarding the order or judgment in favor of Ricotta, so we
lack jurisdiction to entertain any challenge regarding Ricotta. (Cal. Rules of
Court, rule 8.104(b); Van Beurden Ins. Servs. v. Customized Worldwide
Weather Ins. Agency (1997) 15 Cal.4th 51, 56.)
I.
BACKGROUND AND PROCEDURAL HISTORY
A. The Underlying Lawsuit
In January 2015, R Consulting sued Kim and his company Info Tech
Corporation (Info Tech) for breach of contract, alleging they failed to pay
airplane lease payments.2 Kim and Info Tech cross-complained, alleging
2 The facts in this section are taken from R Consulting & Sales, Inc. v.
Info Tech Corporation et al., supra, D072482, an appeal regarding an earlier
lawsuit between the same parties.
3
among other things that R Consulting and certain individuals defrauded
them by making false representations about the aircraft. In April 2016,
R Consulting moved to compel compliance with inspection demands, seeking
access to e-mail stored on some of the Info Tech servers. In connection with
this motion, the court ordered Kim to produce the documents and issued
monetary sanctions. By November 2016, Kim had not provided the
documents or access to the servers. Once R Consulting finally accessed the
server, it discovered the server was inoperable. It sought issue, evidentiary,
or terminating sanctions against defendants, asserting that defendants had
intentionally sabotaged the servers to prevent the collection of the
information necessary to prosecute the complaint and defend against the
cross-complaint. The court granted terminating sanctions.
Kim and Info Tech timely appealed that decision.
B. Postjudgment Collection Litigation
Following that judgment, R Consulting and its law firm, Metsch &
Mason LLP, began collection proceedings. The postjudgment litigation
continued throughout 2017 and 2018, and as part of it, Kim was required to
participate in judgment debtor examinations. In January 2018, the trial
court imposed a turnover order, requiring Kim to supply copies of his
paychecks, and it also ordered Kim to pay 25 percent of his disposable income
from his employers.
R Consulting accused Kim of failing to cooperate, and the law firm, on
behalf of R Consulting, filed a motion for an OSC regarding contempt against
Kim under section 1209, arguing Kim willfully failed to appear at four
judgment debtor examinations, violated a salary turnover order, and
committed perjury. Attorney Michael Mason’s supplemental declaration
alleged five charges: (1) Kim failed to appear at judgment debtor exams on
4
November 7, 2017, January 5, 2018, July 13, 2018, and October 12, 2018;
(2) Kim delayed in providing payment records and failed to provide
information about the receipt of a $25,000 payment issued by an employer;
(3) Kim failed to provide payment records from two employers, IT Source and
Emajee, then turned over funds which accounted for only 25 percent of Kim’s
earnings from one of the employers; (4) Kim failed to supply dated and legible
payment records from employer IT Source; and (5) Kim failed to provide any
payment records from employer Emajee.
The trial court granted R Consulting’s motion and set an OSC for
contempt, at which time the court planned to arraign Kim on the charges and
set a date for trial on contempt. It instructed R Consulting to prepare an
OSC setting forth charges of contempt. The court subsequently issued an
order granting the motion for an OSC at which Kim would need to show
cause as to why he should not be held in civil contempt.
C. The Earlier Appeal
R Consulting used the same allegations as a basis for its motion to
dismiss Kim’s appeal of the terminating sanctions, arguing the
disentitlement doctrine should have prevented him from seeking the appeal.
Specifically, R Consulting contended in its motion to dismiss that Kim
materially failed to comply with his obligations during the judgment
enforcement process by failing to appear at four court-ordered judgment
debtor exams, violated a salary turnover order, committed perjury at the
judgment debtor examinations, and failed to file individual tax returns since
2008. R Consulting also separately argued there was substantial evidence to
support the trial court’s finding of spoliation of evidence and terminating
sanctions.
5
On January 18, 2019, a panel of this court issued its unpublished
opinion in R Consulting & Sales, Inc. v. Info Tech Corporation et al., supra,
D072492. We declined to exercise our discretionary power to dismiss the
appeal and addressed the issues on which R Consulting based its request for
dismissal. We concluded that “[a]s frustrating as Kim’s behavior and
testimony have been during the judgment debtor process, dismissal of
defendants’ appeal [was] not the appropriate remedy.”
We also concluded there was substantial evidence to support the court’s
imposition of a termination sanction due to its determination that Kim had
engaged in spoliation, and we affirmed the judgment.
D. The Contempt Trial
The civil contempt trial proceeded in R Consulting’s case against Kim
on April 15, 2019. At the outset of the proceeding, the trial court dismissed
counts two through five, all of which related to the turnover order, for failure
to include language required by section 699.040, subdivision (c). Following
R Consulting’s presentation of evidence, Kim requested dismissal of the
remaining count, which related to his alleged failures to appear at the four
debtor examinations. The trial court found Kim not guilty of contempt and
dismissed all charges.
E. Kim’s Suit for Malicious Prosecution
In May 2019, Kim filed the present suit against R Consulting, Michel,
Ricotta, Mason & Metsch LLP, and Mason and Metsch individually, alleging
malicious prosecution, abuse of process, and intentional infliction of
emotional distress. The causes of action were all based on the contempt
charges in the earlier lawsuit.
The law firm defendants filed a motion to strike the complaint under
section 425.16, the anti-SLAPP statute. The remaining defendants answered
6
the complaint, and R Consulting and Michel filed a separate anti-SLAPP
motion to strike from the one Ricotta filed.3
In their motion to strike, the law firm defendants argued that contempt
proceedings could not form the basis of a malicious prosecution charge
because contempt is a subsidiary procedural action. The trial court declined
to determine whether an OSC regarding contempt could provide a basis for
malicious prosecution, but it granted the law firm defendants’ motion,
dismissed the complaint, and entered judgment in their favor because it
concluded that Kim could not show a probability of prevailing on his claim, as
he failed to show a lack of probable cause to initiate the contempt
proceedings. Echoing its analysis in the judgment and order in favor of the
law firm defendants, a couple months later, the court granted R Consulting
and Michel’s anti-SLAPP motion. Judgment was entered in those
defendants’ favor. Kim timely appealed these judgments.
3 Kim’s first notice of appeal addressed the order and judgment in favor
of the law firm defendants. Kim’s second notice of appeal addressed the order
and judgment in favor of R Consulting and Michel. Neither of the notices of
appeal addresses the order or judgment in favor of Ricotta, and no judgment
in favor Ricotta appears in the record. Further, Kim did not include in the
record the briefing, affidavits, or other evidence regarding the motions
brought by R Consulting and Michel, or by Ricotta.
7
II.
DISCUSSION
A. Malicious Prosecution Based on Contempt Charges
Kim appeals from judgments granting anti-SLAPP motions and
dismissing his lawsuit.4 We review anti-SLAPP motions de novo. (Freeman
v. Schack (2007) 154 Cal.App.4th 719, 727 (Freeman).)
The anti-SLAPP statute provides that “[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).) A court conducts a two-step analysis when
ruling on a special motion to strike under the anti-SLAPP statutory
framework. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 67 (Equilon).) “First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing the probability of success.”
(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) The second step is a
“ ‘summary-judgment-like procedure.’ ” (Ibid.) “[T]he trial court in making
these determinations considers ‘the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.’ ”
(Equilon, at p. 67, quoting § 425.16, subd. (b)(2).)
4 Kim only challenges the judgments on the malicious prosecution cause
of action.
8
There is no dispute here that defendants’ allegedly wrongful conduct of
moving for an OSC re contempt is protected activity. A malicious prosecution
action, by its terms, arises from an underlying lawsuit and alleges defendants
committed a tort by engaging in the underlying action. (See Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 740-741 (Jarrow
Formulas) [concluding that malicious prosecution is not exempt from anti-
SLAPP scrutiny and explaining that “every Court of Appeal that has
addressed the question has concluded that malicious prosecution causes of
action fall within the purview of the anti-SLAPP statute”].)
Although a malicious prosecution claim meets the requirement of the
first prong because it constitutes activity protected by section 425.16 (see
Baral, supra, 1 Cal.5th at p. 384; Jarrow Formulas, supra, 31 Cal.4th at
pp. 734-735, 740-741), Kim does not meet the second prong of the test
because he cannot demonstrate a probability of success on the merits, as an
OSC for contempt does not properly form the basis of the malicious
prosecution action here, as we next explain.
To establish a malicious prosecution claim, a plaintiff must show (1) the
defendants commenced the prior action or directed it, and the defendants
pursued the action to legal termination in the plaintiff’s favor; (2) the
defendants brought the action without probable cause; and (3) the defendants
initiated the action with malice. (Sheldon Appel Co. v. Albert & Oliker (1989)
47 Cal.3d 863, 871-872; Silver v. Gold (1989) 211 Cal.App.3d 17, 22.)
Additionally, a malicious prosecution action cannot be based on a
subsidiary procedural action or an action that is purely defensive. (Merlet v.
Rizzo (1998) 64 Cal.App.4th 53, 59 (Merlet).) This is because permitting a
malicious prosecution action based on actions taken in pending litigation
“would disrupt the ongoing lawsuit by injecting tort claims against the
9
parties’ lawyers and because the appropriate remedy for actions taken within
a lawsuit lies in the invocation of the court’s broad powers to control judicial
proceedings. [Citation.]” (Adams v. Superior Court (1992) 2 Cal.App.4th 521,
528 (Adams).)
Kim acknowledges there is split of authority regarding whether an
OSC for contempt can be the basis of a malicious prosecution action. He
implies that he can validly raise a complaint for malicious prosecution based
on R Consulting’s and the law firm’s conduct of filing an OSC for why
contempt should not have been issued. We start by considering whether
malicious prosecution based on the filing of contempt charges is proper.
In Chauncey v. Niems (1986) 182 Cal.App.3d 967 (Chauncey), the
Second Appellate District, Division One, considered whether a cause of action
for malicious prosecution could be based on an OSC regarding contempt
during a marriage dissolution dispute. (Id. at pp. 971-973.) Chauncey
argued that his ex-wife had made several legal requests in an effort to harass
him before his impending remarriage. (Id. at p. 972.) In dicta, the court
reasoned that the OSC re contempt exposed Chauncey to sanctions, so it bore
the earmarks of an adversarial proceeding: it required him to retain counsel,
appear in court, and respond to lengthy interrogatories. (Id. at p. 975.) The
court further explained that although the OSC did not exist independently
from the rest of the lawsuit, “it incurred expenses, provoked psychological
trauma and required expenditure of time and effort to defend,” so it was “the
sort of proceeding upon which plaintiff could base a malicious prosecution
action.” (Id. at pp. 975-976.) However, it also sought to keep the scope of
such claims narrow, commenting that “[t]o hear malicious prosecution claims
in any but the most egregious cases would unduly encourage litigation of this
sort. Unlimited access to a forum in which to litigate malicious prosecution
10
claims based on marital dissolutions would clog the courts, and exacerbate
and prolong what is ordinarily an acutely unhappy state of affairs.” (Id. at
p. 979.)
Division Five of the First Appellate District reached a different
conclusion outside the family law context in Lossing v. Superior Court (1989)
207 Cal.App.3d 635 (Lossing). There, the appellate court held that an OSC
regarding contempt, even one brought in bad faith or for harassment, is most
appropriately addressed with an award of sanctions against the attorney
because permitting such a cause of action would “frustrate the intent of the
Legislature to vest the courts with broad power to control proceedings.” (Id.
at pp. 636, 639.) In reaching this conclusion, the court considered contempt
proceedings in the context of the discovery statutes and determined that
contempt was a sanction for misuse of the discovery process, which meant it
was part of an ongoing action, not a separate proceeding. (Id. at pp. 636,
638.) Because a motion for an OSC regarding contempt was ancillary, and
not independent, it could not provide the basis for a malicious prosecution
action. (Ibid; see also Merlet, supra, 64 Cal.App.4th at p. 59; Adams, supra, 2
Cal.App.4th at p. 528.)
Like the court in Lossing, our Supreme Court has emphasized the role
of an action’s independence in determining whether a malicious prosecution
claim can arise. In Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782,
the Supreme Court distinguished cross-complaints from appeals because
cross-pleadings are treated as “distinct and independent actions,” while an
appeal “ ‘is not a separate proceeding and has no independent existence.’ ”
(Id. at p. 793, quoting Twyford v. Twyford (1976) 63 Cal.App.3d 96, 922.)
Thus, we look to the issue of independence of action in reaching our
conclusion here.
11
Kim argues that the contempt charge here was an independent action
because it required an arraignment and a criminal plea, as well as proof of
guilt beyond a reasonable doubt, and it could have resulted in a criminal
record for Kim. Kim also maintains that malicious prosecution claims have
been routinely permitted when the accused has secured a favorable
termination of a criminal trial imposed by an improper charge. However, the
cases he cites are distinguishable; they address criminal charges brought
outside the parameters of existing civil actions, not civil contempt charges
raised in the context of a discovery dispute.
For example, in Tushinsky v. Arnold (1987) 195 Cal.App.3d 666, 670-
671, the malicious prosecution claim was based on a charge brought by the
district attorney after a wife filed a Domestic Violence Prevention Act (DVPA)
petition. There, the wife directed her attorney to do nothing that would
result in her child’s father being criminally prosecuted for the sexual abuse
she believed her husband was imposing on her daughter, instead asking that
the matter be handled in the civil courts only in connection with their marital
dissolution. The attorney allegedly advised the mother to file a DVPA
petition, knowing the district attorney would be required to investigate
allegations, potentially giving rise to a criminal accusation. The wife filed the
DVPA petition, and the district attorney filed a criminal complaint against
the husband, which it later dismissed. After the dismissal, the husband sued
the wife for malicious prosecution based on her filing the DVPA petition
without “ ‘honestly, reasonably and in good faith’ ” believing her husband was
guilty of the crimes charged, and judgment was entered against the wife.
The wife filed an action against the attorney for infliction of emotional
distress and negligence, and for breach of confidence and trust and for the
establishment of a constructive trust. The trial court dismissed those causes
12
of action, and the wife appealed, contending she had met her pleading
burden. The appellate court did not discuss the propriety of the husband’s
earlier malicious prosecution case. It simply identified that the husband had
been successful in his malicious prosecution case, which established collateral
estoppel as to some of the elements of the causes of action in the wife’s case.
In other words, Tushinsky had nothing to do with whether a party can sue for
malicious prosecution following a favorable outcome in a contempt trial.
In Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919-920, the
plaintiff had been arrested without a warrant, and the court concluded that a
warrantless arrest was not a “proceeding” giving rise to a malicious
prosecution action. The arrest occurred outside the context of any other civil
or criminal case.
In contrast here, the OSC re contempt was issued in the context of
ongoing, contentious litigation and regarded repeated efforts at engaging Kim
in postjudgment debtor examinations, as well as discovery related to
collection of the judgment; it was not raised as a separate proceeding with an
independent existence. Without the underlying postjudgment discovery
disputes, there would be no contempt motion. While the motion undoubtedly
“incurred expenses . . . and required expenditure of time and effort to defend”
(Chauncey, supra, 182 Cal.App.3d at p. 975), those expenses and efforts were
the result of ongoing litigation, not new or different obligations resulting from
a course of conduct independent from the existing litigation (see Lossing,
supra, 207 Cal.App.3d at pp. 636, 638). Because the OSC regarding contempt
was not a valid basis for a malicious prosecution claim here, the malicious
prosecution complaint was properly struck.
In his reply brief, Kim emphasizes that contempt of court is a criminal
offense and not a civil matter. And during oral argument, counsel for Kim
13
likewise asserted that this matter should be handled differently than Lossing
because of its criminal nature. But the order at issue here was not one for
criminal contempt; the court granted a request for an OSC for why it should
not issue civil contempt, and the minutes of the contempt trial identified it as
a civil trial, not a criminal one.
Civil contempt is quasi-criminal in nature, but it is governed by
sections 1209 through 1222, whereas criminal contempt is prosecuted and
punished as a violation of Penal Code section 166 and it results in a
misdemeanor conviction. (Pacific Tel. & Tel. Co. v. Superior Court of Los
Angeles County (1968) 265 Cal.App.2d 370, 371-372; Mitchell v. Superior
Court (1989) 49 Cal.3d 1230, 1240 (Mitchell).) The Code of Civil Procedure
authorizes the court to impose fines or imprisonment (§§ 1218, subd. (a)
[fine], 1219, subd. (a) [imprisonment]) in order to exercise “the inherent
power of the court to conduct the business of the court and enforce the lawful
orders of the court” (Pacific Tel., at p. 372), but those powers do not
transform a civil contempt proceeding into a criminal one.5
“[W]here the object of the proceedings is to vindicate the dignity or
authority of the court, they are regarded as criminal in character even though
they arise from, or are ancillary to, a civil action.” (Morelli v. Superior Court
of Los Angeles County (1969) 1 Cal.3d 328, 333.) But where the purpose is “to
protect and enforce the rights of private parties by compelling obedience to
court orders and decrees, then the proceeding is said to be civil. [Citations.]
5 Additionally, “[i]t has long been established that the Code of Civil
Procedure contempt statute triggers neither a state constitutional nor
statutory right to a jury trial.” (Mitchell, supra, 49 Cal.3d at p. 1240.) In
contrast, “persons prosecuted for contempt under [Penal Code] section 166,
which by its express terms is a misdemeanor, have a state constitutional and
statutory right to a jury trial.” (Ibid.)
14
In other words criminal contempt punishes whereas civil contempt coerces.”
(People v. Derner (1986) 182 Cal.App.3d 588, 592, citing Morelli, at p. 333.)
Here, the motion for an OSC was brought under section 1209 based on
allegations of repeated violations of discovery-related orders, and the order
was used to control the proceedings and coerce compliance with court orders.
Accordingly, we view it as civil in nature and dependent upon the
postjudgment proceedings. Under these circumstances, the contempt claim
was not a proper basis for a malicious prosecution cause of action, and Kim
therefore cannot demonstrate a probability of success.
Kim’s primary focus on appeal is that the court erred by applying an
incorrect standard in determining that Kim failed to demonstrate a
probability of success.6 This argument assumes an OSC re contempt
provides a valid basis for a malicious prosecution action. Because we have
determined that Kim fails to show a probability of success for a different
6 We note that our denial of the motion to dismiss his appeal in
R Consulting & Sales, Inc. v. Info Tech Corporation, et al., supra, D072492
based on the disentitlement doctrine does not operate as law of the case with
respect to the probability of success of the OSC. The law of the case doctrine
requires lower courts and subsequent appeals to adhere to a principle or rule
of law necessary to a decision in an initial appeal. (See Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 701 [law of the case applies to
later proceedings in same case].) The language in our earlier opinion must be
understood in light of the facts and issues before us; our opinion is not
authority for a proposition we did not consider. (See Hedwall v. PCMV, LLC
(2018) 22 Cal.App.5th 564, 577, fn. 7.) Our earlier appellate opinion answers
only the question of whether to apply the disentitlement doctrine, and we
concluded that the facts of the case did not persuade us that it should apply.
We made no findings of fact or determinations regarding whether defendants
made a sufficient showing of probability of success in its motion for an OSC
regarding contempt in our earlier decision.
15
reason—the defendants’ motion for an OSC re contempt does not form a basis
for a malicious prosecution action—we do not reach this argument.
B. The Judgment in Favor of R Consulting and Michel
Having already reached our conclusion based on the legal issue, we do
not need to reach the question of probability of success regarding any of the
defendants. Were we to do so, we would nonetheless affirm the judgment
against R Consulting and Michel because Kim failed to provide a complete
record for us to review.
A fundamental rule of appellate review is that the trial court’s order or
judgment is presumed to be correct. (Jameson v. Desta (2018) 5 Cal.5th 594,
608-609; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,
956.) To overcome this presumption, the appellant bears the burden of
providing an adequate record to affirmatively demonstrate error. (Foust v.
San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181; 187; Sutter
Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498 [incomplete
record construed against appellant].) The failure to provide an adequate
record makes it impossible to overcome the presumption of correctness
necessary for reversal of the court’s order or judgment in favor of
R Consulting and Michel.
Although we review decisions regarding anti-SLAPP motions de novo
(Freeman, supra, 154 Cal.App.4th at p. 727), the absence of any underlying
briefing and evidence including affidavits, means we cannot review the
parties’ arguments or consider the evidence to determine probability of
success. (See Equilon, supra, 294 Cal.4th at p. 67 [explaining the court
considers the pleadings and the evidence in the second step of the anti-
SLAPP analysis]; see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118
Cal.App.4th 204, 212.) The failure to provide us with an adequate record of
16
the issues on which review is sought requires us to resolve the issues against
an appellant. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1296.)
DISPOSITION
The judgments as to the law firm defendants, R Consulting, and Michel
are affirmed. Parties to bear their own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
17