Mitchell v. Foos CA3

Filed 10/30/26 Mitchell v. Foos CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) KRISTA MITCHELL, C102027 Plaintiff and Appellant, (Super. Ct. No. CV20240829) v. DAVID PAUL FOOS et al., Defendants and Respondents. This appeal concerns the application of Code of Civil Procedure1 section 425.16, widely known as the anti-SLAPP (strategic lawsuit against public participation) statute. The anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. (§ 425.16, subd. (b)(1).) In this case, plaintiff Krista Mitchell sued defendants Foos Gavin Law Firm, P.C., and two of its attorneys, David Paul Foos and Rachael Doty (collectively, defendants) for various claims arising out of the premature filing of a motion for sanctions in a related case (sanctions motion). It is undisputed that the sanctions motion was filed before the safe harbor period set forth in the trial court’s order in the related case expired. 1 Undesignated statutory references are to the Code of Civil Procedure. 1 Defendants filed a motion to strike the complaint under the anti-SLAPP statute (anti- SLAPP motion), which the trial court granted. Mitchell appeals. Litigation of an anti-SLAPP motion involves a two-step process. “First, the court decides whether the [movant] has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the [non-movant] has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) Mitchell argues the trial court erred in finding that defendants made the threshold showing under the first step of the anti-SLAPP analysis because the unlawful conduct exception applies to the otherwise protected activity. She asserts the premature filing of the sanctions motion was unlawful as a matter of law. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND Mitchell filed a verified complaint for damages against defendants for: abuse of process; breach of obligation not arising from contract; intentional infliction of emotional distress; negligent infliction of emotional distress; negligence and gross negligence; negligent willful misconduct; violation of Business and Professions Code section 17200 et seq.; and civil conspiracy. The causes of action arose from defendants’ alleged violation of a trial court order in a related case that shortened the safe harbor period for filing a motion for sanctions under section 128.5, subdivision (f)(1)(B), from 21 days to 17 days. Mitchell alleged defendants were in contempt of court when they filed the sanctions motion. Defendants filed a motion to strike the complaint under section 425.16, arguing, among other things: (1) Mitchell’s claims stemmed from protected petitioning activity, i.e., “ ‘communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding’ ” (quoting Cabral v. Martins (2009) 177 Cal.App.4th 471, 480); and (2) Mitchell could not prevail on her claims because they were barred by the 2 litigation privilege in Civil Code section 47, subdivision (b). In her supporting declaration, Doty declared that the sanctions motion was inadvertently filed prematurely with the trial court “[d]ue to a miscommunication with administrative staff.” She further declared that as soon as she “was notified of the error, [she] sent a letter to the [trial c]ourt requesting that the hearing date and motion be vacated and explained that the filing was inadvertent.” A revised motion for sanctions in the related case was later served on Mitchell’s counsel and filed with the trial court. Mitchell opposed the anti-SLAPP motion on the grounds that the premature filing of the sanctions motion was unlawful as a matter of law and thus not subject to the anti- SLAPP statute. In Mitchell’s view, defendants’ paralegal engaged in the unauthorized practice of law (a misdemeanor under Bus. & Prof. Code, § 6126, subd. (a)) when she: (1) “selected” to file the sanctions motion in violation of Business and Professions Code section 6450, subdivision (b)(3); (2) filed the sanctions motion without the direction, authorization, and supervision of an attorney as required in Business and Professions Code section 6451; and (3) unlawfully filed the sanctions motion before the expiration of the safe harbor period in the trial court’s order. Mitchell also argued, among other things, that defendants perpetrated fraud on the court based on purported discrepancies regarding the timing of when certain documents were filed regarding the sanctions motion. As to the second prong of the anti-SLAPP analysis, Mitchell argued that she had demonstrated a probability of prevailing on her claims because, under the first prong of the analysis, the filing of the sanctions motion was unlawful as a matter of law. Mitchell did not respond to defendants’ argument that her claims were barred by the litigation privilege under Civil Code section 47, subdivision (b). In their reply brief, defendants disputed that they engaged in unlawful conduct and that their paralegal engaged in the unauthorized practice of law. They further disputed Mitchell’s allegations of fraud on the court and asked the court to disregard the documents submitted by Mitchell because they were not properly authenticated. 3 Defendants’ paralegal filed a declaration in support of the reply brief, declaring that after Doty said she had made all of her edits to the sanctions motion, the paralegal sent the motion to Foos for approval. Once Foos’s edits were incorporated and the sanctions motion was finalized, the paralegal served and electronically filed the motion in accordance with her “usual practice.” When she “realized that the motion was not supposed to be filed until after the expiration of the safe harbor period,” the paralegal immediately tried to reach Foos and Doty. Doty returned the paralegal’s call a few minutes later and asked her to “contact the Court to find out what the process was to withdraw the motion for sanctions.” The paralegal contacted the trial court and “was instructed to submit [the] request to withdraw the motion in writing”; and, after Doty approved the letter to withdraw the motion, the paralegal filed the letter with the trial court later the same day. Foos also filed a declaration in support of the reply brief. He declared the paralegal’s work related to the sanctions motion was done under his supervision and he understood the paralegal “followed her usual procedure related to pleadings” when she filed the sanctions motion. Foos declared the trial court denied Mitchell’s motion for an order to show cause regarding contempt pertaining to the premature filing of the sanctions motion in the related case. The trial court’s ruling on the contempt motion, attached to Foos’s declaration, states that Mitchell failed to show a “ ‘willful failure to comply with the order.’ ” The trial court granted defendants’ anti-SLAPP motion and declined to consider the documents submitted by Mitchell in support of her opposition because the documents were untimely filed.2 The trial court found that defendants had satisfied their burden of showing the causes of action arose from protected activity and Mitchell had failed to 2 Mitchell does not challenge the trial court’s ruling in that regard. 4 establish that the unlawful conduct exception applied. The trial court further found that Mitchell failed to establish the litigation privilege did not bar her causes of action. The trial court explained that the inadvertent filing of the sanctions motion did not constitute the unlawful practice of law. Mitchell appeals. DISCUSSION We review Mitchell’s challenge to the trial court’s granting of the anti-SLAPP motion de novo. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)3 Although our review is de novo, we presume the trial court’s judgment is correct and the appellant’s duty to demonstrate reversible error remains unchanged. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 708.) We thus address only the “issues which have been adequately raised and supported in [appellant’s] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) In that regard, Mitchell challenges the trial court’s ruling solely as to the first prong of the anti-SLAPP analysis—i.e., she argues the trial court “failed to perform the step one analysis at all” and defendants’ filing of the motion for sanctions was unlawful as a matter of law. (Citing Flatley v. Mauro (2006) 39 Cal.4th 299.) Mitchell does not challenge the trial court’s finding on the second prong that Mitchell failed to demonstrate a probability of prevailing on her claims because the claims are barred by the litigation privilege in Civil Code section 47, subdivision (b). Because we conclude Mitchell has failed to show that defendants’ conduct was unlawful as a matter of law, we affirm. 3 We accordingly do not address Mitchell’s arguments as to purported error in the trial court’s analysis, including her argument that the trial court “applied an invented ‘reasonable attorney’ standard” and erred in concluding “the premature filing caused no harm.” (People v. Aguirre (2021) 64 Cal.App.5th 652, 668, fn. 5.) 5  A party filing an anti-SLAPP motion satisfies the first prong of the analysis if they make a prima facie showing that “the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) Section 425.16, subdivision (e)(2) defines acts in furtherance of the constitutional right to petition to include “any written or oral statement or writing made in connection with an issue under consideration or review” by a court. Courts have adopted “a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.) “[F]iling petitions, motions, and briefs in court (and/or assisting in the filing) are protected petitioning activities under the anti-SLAPP statute.” (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 880.) Thus, “if the plaintiff is a nonclient who alleges causes of action against someone else’s lawyer based on that lawyer’s representation of other parties, the anti-SLAPP statute is applicable to bar such nonmeritorious claims.” (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 158.) Based on the foregoing, we conclude defendants met their burden under the first prong of the anti-SLAPP analysis because the filing of the sanctions motion was litigation-related activity. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 112 [a defendant’s burden at the first prong of the anti-SLAPP analysis is to make a prima facie showing that the challenged causes of action arise from acts taken in furtherance of their constitutional rights of free speech or petition in connection with a public issue].) Mitchell disagrees. She asserts the unlawful conduct exception applies to preclude application of the anti-SLAPP statute. That exception provides that “[u]nlawful or criminal activities do not qualify as protected speech or petition activities under the anti- SLAPP statute.” (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711.) We note, however, “ ‘[c]onduct that would otherwise come within the scope of the anti-SLAPP 6 statute does not lose its coverage … simply because it is alleged to have been unlawful or unethical.’ [Citations.] [The unlawful conduct] exception to the use of section 425.16 applies only if a ‘defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.’ ” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285, italics omitted; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285.) Neither of those requirements are met here. Mitchell’s assertion that the paralegal committed a misdemeanor under Business and Professions Code section 6126, subdivision (a) by engaging in the unlawful practice of law is disputed and not conclusively established. Defendants disputed Mitchell’s allegation of unlawful conduct and filed declarations in support of their position. We find nothing in the declarations submitted by defendants in support of their anti-SLAPP motion—the only admissible evidence in the record—to establish unlawful conduct as a matter of law. The practice of law does not include “clerical functions such as delivering and filing pleadings with the clerk,” which is the activity at issue here. (Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1832, fn. 5.) There is also no evidence that the paralegal “selected” the sanctions motion for the client in violation of Business and Professions Code section 6450, subdivision (b)(3), as Mitchell argued. That provision prohibits a paralegal to “[s]elect, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal.” (Bus. & Prof. Code, § 6450, subd. (b)(3).) The evidence in the record shows that the paralegal merely filed the motion prepared by the attorneys; she did not select the use of the motion for the client. Further, to the extent that Mitchell asserts the premature filing of the sanctions motion was unlawful because it violated other provisions of the Code of Civil Procedure and the trial court’s order, or because it constituted “extrinsic fraud,” we disagree. The unlawful conduct exception “applies only to criminal conduct.” (Bergstein v. Stroock & 7 Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 806; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [the unlawful exception applies to criminal conduct “and not merely [to conduct] violative of a statute”].) Mitchell also fails to address the trial court’s denial of her motion to hold defendants in contempt in the related action and the fact that there is no admissible evidence in the record to support her assertion of extrinsic fraud. Finally, we decline to address Mitchell’s conclusory assertion that “[t]he ruling must be reversed on the independent ground” that the judge had a conflict of interest. Mitchell cites nothing in the record to support her conclusory factual assertions or to indicate that she raised the issue in the trial court. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 [“Statements of fact that are not supported by references to the record are disregarded by the reviewing court”]; Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776 [appellate courts will not consider arguments based on objections that could have been, but were not, made in the trial court].) Because defendants met their burden on the first prong of the anti-SLAPP analysis and Mitchell does not challenge the trial court’s finding that her causes of action are barred by the litigation privilege in Civil Code section 47, subdivision (b), we affirm the trial court’s granting of the anti-SLAPP motion. 8  DISPOSITION The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1)-(2).) /s/ BOULWARE EURIE, J. We concur: /s/ EARL, P. J. /s/ KRAUSE, J. 9