AARON, J.
Acting in propria persona, Kelly Van, filed this lawsuit against respondents James Cameron, Twentieth Century Fox Film Corp. (Twentieth Century Fox), Lightstorm Entertainment, Inc. (Lightstorm), Mitchell Silberberg & Knupp LLP (MSK), and Robert H. Rotstein, a Professional Corporation Inc. (Rotstein). Van's complaint alleged a breach of contract claim as well as numerous fraud related claims. Although difficult to understand, Van's complaint appears to be premised on Van's contentions that respondents made fraudulent statements in an attempt to settle Van's claim that the 2009 film "Avatar" infringed on a book that she authored entitled, "Sheila the Warrior; the Damned," and that respondents committed fraud in connection with a prior federal action for copyright infringement, leading to the dismissal of that action.
Respondents filed a special motion to strike pursuant to the anti-SLAPP statute (Code of Civ. Proc., § 425.16)
Van appeals from the trial court's order granting respondents' anti-SLAPP motion, and the order denying her motion to vacate and awarding attorney's fees. We reject Van's claims and affirm the orders.
In January 2015, Van filed a 66-page complaint against respondents that combined a form complaint with a lengthy narrative complaint.
In the form portion of the complaint, Van claims that respondents committed an intentional or negligent misrepresentation by making a "promise to pay [Van] with regards to her cease and desist demand of at least 500,000.00 plus one half percent of total box office revenue in monthly royalties. . . ." Van also claimed that in order "[t]o cover up their bad faith dealings in reneging on payment, [respondents] concealed oral contract [sic] with [Van], prepared fictitious evidence regarding a `scriptment', prepared fraudulent motion and submitted all to court."
In the narrative portion of the complaint, Van contends that respondents made numerous fraudulent statements in connection with an attempt to settle Van's claim that Avatar infringed on the copyright to her book. For example, Van contends, "[Respondents] defrauded [Van] by telling her to wait for payment, never intending to pay her." Van also claims that when she attempted to prosecute her copyright infringement claim in a lawsuit brought in federal court, respondents committed various "fraudulent acts" that resulted in respondents prevailing in the action.
Respondents filed an anti-SLAPP motion in which they contended that the claims in Van's complaint all related to "[respondents'] alleged acts in direct response to [Van's] cease and desist letter, and acts in anticipation of, or in connection with, [the prior federal action]." Respondents further argued that Van would be unable to establish a probability of prevailing on any of her breach of contract claims because there was no contract, and that she would be unable to demonstrate a probability of prevailing on her fraud claims because she would be unable to produce any evidence of fraud. In addition, as to both the breach of contract claims and the fraud claims, respondents argued that Van would be unable to establish a probability of prevailing because the claims were barred by res judicata and collateral estoppel as well as by the statute of limitations.
In her opposition to respondents' anti-SLAPP motion, Van asserted, "There is no freedom of speech law that legalizes (i) submitting fraudulent motions to Court, (ii) defrauding the plaintiff and (iii) breach of oral contract, (iv) fraud upon the Court."
Van also argued that the present action was not barred under the doctrine of res judicata because this case was "dissimilar to the copyright infringement case." Specifically, Van argued that this case was based on various actions taken by respondents in the federal case including, "[f]raudulently allowing case to go to Court," and "admittedly submitting fraudulent motion for taking judicial notice for the same evidence while masquerading it as different evidence as their motion does not reference the word `duplicate.'" Van claimed that she had "evidence supporting a prima facie case and will win if the Court allows her to present her case to a jury." Van also claimed that no applicable statute of limitations barred her claim because Van "discovered her new evidence exposing the fraud . . . in June of 2014."
After receiving further briefing, and holding a hearing, the trial court granted respondents' anti-SLAPP motion on April 20. The trial court observed that the anti-SLAPP statute has been construed to apply to claims that are based on statements made "in connection with" litigation. (Quoting Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 (Neville).) While noting that Van's complaint "contains rambling allegations that are difficult to understand," the court stated that all of Van's claims appeared to be based on respondents' litigation activity related to a copyright infringement claim that Van had previously brought against several of the respondents.
On May 4, 2015, Van filed a motion to vacate the trial court's order granting respondents' anti-SLAPP motion. Respondents filed an opposition to this motion, as well as to several other similar motions that Van had filed.
On June 29, 2015, the trial court entered an order denying Van's motion to vacate its order granting respondents' anti-SLAPP motion. The June 29 order also awarded Cameron, Twentieth Century Fox, and Lightstorm attorney fees in the amount of $24,815.75.
As discussed in greater detail in part III.A., post, Van appeals from the trial court's April 20 order granting respondents' anti-SLAPP motion and the court's June 29 order denying her motion to vacate that order and awarding Cameron, Twentieth Century Fox, and Lightstorm attorney fees.
Respondents claim that this court lacks jurisdiction to consider Van's claims because she has not properly appealed from any appealable order or final judgment.
On April 17, 2015, the trial court held a hearing on respondents' anti-SLAPP motion. The court entered an order granting the motion on April 20. The trial court entered an order on June 29 denying Van's motion to vacate and awarding attorney fees to Cameron, Twentieth Century Fox, and Lightstorm.
Van's July 24, 2015 notice of appeal states that she is appealing from orders entered on "6/26/2015, 4/17/2015" and "[a]ll Minute Orders for 4/17/15 and 6/29/2015 newly discovered evidence Minute order for 6/26/2015." In addition, Van attached the June 29 order to the notice of appeal.
Respondents contend that this court lacks jurisdiction to consider Van's appeal insofar as she intends to raise claims based on the April 20 order granting respondents' anti-SLAPP motion, because the notice of appeal does not expressly refer to the April 20 order. Respondents also claim that this court lacks jurisdiction to consider any appeal from the June 29 order insofar as Van's claims pertain to the court's denial of her motion to vacate. Finally, respondents claim that Van's appeal from the June 29 attorney fee order is premature because no final judgment has been entered in the case.
"We liberally construe a notice of appeal to implement the strong public policy favoring the hearing of appeals on their merits." (In re F.A. (2015) 241 Cal.App.4th 107, 117, fn. 7.) A notice of appeal is to be liberally construed in favor of its sufficiency, "so as to protect the right to appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59.)
It is well established that an order granting an anti-SLAPP Motion is appealable. (§ 904.1, subd. (a)(13).) While Van's notice of appeal does not expressly refer to the date on which the court granted respondents' anti-SLAPP motion (April 20), the notice of appeal does refer to the date of the hearing on the anti-SLAPP motion (April 17), and expressly references, and attaches, the court's June 29 order denying Van's motion to vacate the trial court's order granting the anti-SLAPP motion. Under these circumstances, and seeing no possible prejudice to the respondents, we construe the notice of appeal liberally as raising a valid appeal from the April 20 order granting respondents' anti-SLAPP motion.
In her motion to vacate, Van requested that the court "vacate its ruling [on the anti-SLAPP motion] in [respondents'] favor." Although styled as a "motion to vacate," Van's motion may be construed as a motion for reconsideration (§ 1008, subd. (a)) of the trial court's order granting respondents' anti-SLAPP motion. (Ibid. [permitting a party to file a motion requesting that a court "reconsider the matter and modify, amend, or revoke the prior order"].)
Section 1008, subdivision (g) describes the circumstances under which a motion for reconsideration is appealable:
The order that was the subject of Van's motion for reconsideration was an appealable order granting respondents' anti-SLAPP motion. Thus, the denial of Van's motion for reconsideration is reviewable as part of Van's appeal from the trial court's order granting the anti-SLAPP motion. (§ 1008, subd. (g).)
Although an order awarding attorney fees pursuant to the anti-SLAPP statute is not statutorily appealable pursuant to section 904.1 (see City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 781 (City of Colton), such an order may be appealable pursuant to the collateral order exception to the one final judgment rule. (Ibid.) The City of Colton court explained the collateral order exception as follows:
The City of Colton court also explained that an award of attorney fees under the anti-SLAPP is appealable pursuant to the collateral order exception:
In this case, as in City of Colton, the trial court's June 29, 2015 anti-SLAPP attorney fee order meets all of the requirements of the collateral order exception, and thus the order is appealable.
Van claims that the trial court erred in granting respondents' anti-SLAPP motion. This court "`review[s] an order granting an anti-SLAPP motion de novo. . . .'" (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1536 (Jay).)
Section 425.16, subdivision (b)(1) provides: "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."
Section 425.16, subdivision (e) provides in relevant part:
Pursuant to section 425.16, subdivision (e)(1) and (2), "statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest." (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35; accord Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 609 (Gallanis-Politis) ["`"A cause of action `arising from' defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike."'"]) Litigation activity subject to an anti-SLAPP motion includes "communicative conduct such as the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Further, "communications in connection with anticipated litigation are considered to be `"`under consideration or review by a . . . judicial body.'"'" (Neville, supra, 160 Cal.App.4th at p. 1263, italics added.)
"Resolution of an anti-SLAPP motion `requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue," as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
On appeal, this court "`review[s] an order granting an anti-SLAPP motion de novo. . . .'" (Jay, supra, 218 Cal.App.4th at p. 1536.)
In determining whether a cause of action arises from protected activity, a court must "disregard the labeling of the claim [citation] and instead `examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies' and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.] [A court] assess[es] the principal thrust by identifying `[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.] If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute." (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.)
An "`order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.'" (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718 (Schnabel).) An appellant has the burden of affirmatively showing prejudicial error (City and County of San Francisco v. Funches (1999) 75 Cal.App.4th 243, 244-245). The presumption of correctness also imposes a burden on the appellant to present argument and authority on each point; otherwise, the point is deemed abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.) An appellate court is not required to discuss or consider points that are not adequately presented. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim).) In addition, the fact that an appellant proceeds in propia persona does not alter these standards, as "[p]ro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
At the outset, we observe that it is extremely difficult to understand the principal thrust or gravamen of each of Van's causes of action, because Van's complaint does not separately state her causes of action, as is required. (See Cal. Rules of Court, rule 2.112.)
That rule provides as follows:
Although the captions of Van's form and narrative complaints state that she is bringing a claim for breach of contract, the form portion of her complaint appears to pertain solely to her fraud causes of action. Further, the 55-page narrative portion of the complaint does not separately outline the basis for her breach of contract claim. Moreover, notwithstanding that the caption of her narrative complaint indicates that she is bringing a claim for breach of contract, a review of the allegations in the complaint suggests that her claim is premised on respondents' purported acts in making fraudulent statements in connection with settlement negotiations that purportedly occurred in response to Van's December 2009 cease and desist letter to Twentieth Century Fox. For example, Van alleges the following:
Van also claims, "[Van] believes that after having received [Van's] cease and desist offer to pay for her book-communication on or about December 2009, the defendants put into motion their intent to defraud [Van] and a plan to commit a fraud upon the court with their `scriptment fraud.'" Van also alleges, "The defendants never planned to honor their agreement unbeknownst to plaintiff at that time in March. This is
Making a settlement offer is litigation activity protected by the anti-SLAPP statute. (See, e.g., Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963 (Seltzer) [reviewing case law and stating, "cases have . . . held that settlement negotiations are within the scope of section 425.16"]; GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908.) Further, the Seltzer court noted even allegedly fraudulent statements made in connection with settlement negotiations are protected:
Thus, Van's breach of contract claim, which appears to be based on respondents' purported acts in making fraudulent statements to her in settlement negotiations in response to her cease and desist letter, arose from protected activity under the anti-SLAPP statute.
Van's fraud claims appear to be based on actions taken by respondents in connection with the prior federal action. For example, Van claimed that in that action, respondents filed "fraudulent motion[s]," "concealed material facts from the court," and "prepared fictitious evidence in court." Van also asserted, "
We conclude that the trial court properly determined that respondents made a threshold showing that all of Van's claims arise from protected activity.
With respect to demonstrating a probability of prevailing, the trial court concluded that Van had no admissible evidence demonstrating the existence of an enforceable contract, or fraud. Van fails to rebut the presumption of correctness of the trial court's order (see Schnabel, supra, 5 Cal.4th at p. 718). The arguments in Van's brief are not adequately presented (see Kim, supra, 17 Cal.App.4th at p. 979) in that they are largely incomprehensible and/or not legally cognizable. For example, the legal discussion portion of her brief begins as follows:
"The Defendants declarations and motions were granted. The Appellant makes the following main arguments:
Exhibit 18, which Van refers to in her brief as "newly discovered evidence," is a March 2010 email from Van to her lawyer in the federal action in which Van states in part, "How dare they presume to offer me a job when copyright infringement law clearly states that I will receive all profits derived from their copyright infringement upon my rights?" Neither this email, nor any of the other documents contained in the record to which Van refers in her brief, constitutes legally sufficient evidence to sustain a verdict in Van's favor on any of her causes of action. Accordingly, the trial court properly concluded that Van failed to establish a probability of prevailing on any of her claims. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 [in order to demonstrate a probability of prevailing, a party opposing an anti-SLAPP motion "`"must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited"'"].)
Accordingly, we conclude that the trial court did not err in granting respondents' anti-SLAPP motion.
Van appears to claim that the trial court erred in awarding attorney fees to Cameron, Twentieth Century Fox, and Lightstorm pursuant to the anti-SLAPP statute.
Section 425.16, subdivision (c) provides: "[I]n any action subject to [an anti-SLAPP motion], a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."
It is an appellant's burden to provide an adequate record on appeal that demonstrates that the trial court erred. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.)
The record on appeal does not contain the motion for attorney fees. This court thus has no basis on which to review the trial court's order granting attorney fees because Van failed to carry her burden of providing an adequate record on appeal.
Accordingly, we conclude that Van has not established that the trial court erred in awarding attorney fees to Cameron, Twentieth Century Fox, and Lightstorm pursuant to the anti-SLAPP statute.
The April 20 order granting respondents' anti-SLAPP motion and the June 29 order denying Van's motion to vacate the April 20 order are affirmed. The June 29 order granting Cameron, Twentieth Century Fox, and Lightstorm attorney fees in the amount of $24, 815.75 is affirmed. Respondents are entitled to costs on appeal.
BENKE, Acting P. J. and IRION, J., concurs.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
