Filed 8/10/22 Manlin v. Milner CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ROGER MANLIN,

Plaintiff and Appellant,

v.

STEVE MILNER, et al.

Defendants and Respondents.

 B313253, B315077

 (Los Angeles County

 Super. Ct. No. 19STCV08154)

APPEALS from orders of the Superior Court of Los Angeles 

County, Robert B. Broadbelt, Judge. Affirmed in part, reversed

in part, and remanded with directions.

Roger A. S. Manlin, in pro. per., for Plaintiff and Appellant.

Hamburg, Karic, Edwards & Martin, Gregg A. Martin and 

Ann S. Lee for Defendants and Respondents.

___________________________________
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In a dispute between members of a limited liability 

company (LLC), plaintiff alleged that the LLC’s managing 

member engaged in self-dealing to the detriment of both plaintiff 

and the company. After the managing member, represented by 

the LLC’s attorneys, cross-complained against the plaintiff, the 

plaintiff cross-complained against both the managing member 

and the attorneys for further self-dealing and breach of fiduciary 

duty, alleging they misappropriated funds from the LLC to 

finance the litigation.

Cross-defendants specially moved to strike the complaint 

under the anti-SLAPP statute (Strategic Lawsuit Against 

Protected Activity; Code of Civil Procedure section 425.16 (section

or § 425.16)), arguing the alleged conduct occurred as part of the 

litigation, which was protected activity. 

Cross-defendants also moved for discovery sanctions.

The trial court found that a portion of the cross-complaint 

arose from litigation activity, and thus granted cross-defendants’ 

special motion to strike. Plaintiff appeals from that ruling.

The trial court also entered discovery orders in 2019 and 

2021 imposing monetary and evidentiary sanctions against the 

plaintiff. Plaintiff separately appeals from these rulings, and we 

consolidated the appeals.

We conclude that appropriation of funds to finance 

litigation is not protected activity. Accordingly, we reverse in 

part the order granting cross-defendants’ special motion to strike.

We conclude that only the 2021 discovery order imposing 

monetary sanctions is appealable, and that order is affirmed. 

Finally, we conclude that the 2019 discovery order for monetary 

sanctions and the 2021 order insofar as it imposed nonmonetary 
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sanctions are nonappealable, but we will deem the appeal to 

constitute a petition for extraordinary relief, which we deny.

BACKGROUND

A. Litigation

We take the facts from the complaints, accepting them as 

true for purposes of these appeals. 

Roger Manlin, an attorney, and Steven Milner jointly own 

and are the only members of eight real estate investment LLCs. 

Milner is the sole managing member of each LLC. Milner, 

without Manlin’s knowledge or consent, engaged in self-serving 

conduct in breach of both his fiduciary duties and the eight LLC 

operating agreements. 

Manlin sued Milner for breach of contract, breach of 

fiduciary duty, fraud, unfair competition, conversion, and 

financial elder abuse, and sought an accounting.

Milner and the LLCs, represented by the law firm 

Hamburg, Karie, Edwards & Martin, and attorneys Ann Lee and 

Gregg Martin (collectively “Attorneys”), cross-complained for 

legal malpractice and breach of fiduciary duty, and sought 

declaratory relief and rescission of the LLC agreements. 

In response, Manlin cross-complained on behalf of himself 

and the LLCs against Milner and the Attorneys for further acts 

of self-dealing and elder abuse. 

As pertinent here, Manlin’s cross-complaint alleged in the 

first cause of action, for breach of written operating agreements,

that Milner breached the LLC operating agreements “by his 

diversion of funds from the LLCs in order to pay legal expenses of 

defending himself in the Manlin complaint against him, and 

suing Manlin in the Milner cross-complaint, and his refusal to 
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provide and concealment of information relating to the retention 

of and payment to the Attorneys of their legal fees.”

The second cause of action, for breach of fiduciary duty

against only Milner, alleged that Milner breached his fiduciary 

duty by failing to “stipulate to continue any currently existing 

hearing date, response date, notice date, motion cut off date, or 

other date associated with the presently scheduled January 8, 

[2020] trial.”

The third cause of action, for breach of fiduciary duty

against the Attorneys, alleged the Attorneys breached a fiduciary 

duty owed to Manlin because they “concealed [their] agreements 

with the LLCs, concealed the payments made by the LLCs to 

themselves without Manlin’s knowledge or consent, wrongfully 

diverted and continue to divert funds from each of the LLCs to 

Attorneys in order to pay all of Milner’s personal legal expenses 

of defending the Manlin complaint against him, individually, and 

proceeding with [the] Milner cross-complaint against Manlin in 

the names of the LLCs.”

The fourth cause of action, for elder abuse, against Milner, 

alleged that Milner’s conduct constituted elder abuse. 

B. Anti-SLAPP Motion

Milner and the Attorneys specially moved to strike 

Manlin’s cross-complaint or, in the alternative, portions thereof, 

arguing that funding litigation constitutes protected petitioning 

activity, and Manlin could not show a probability of prevailing on 

any cause of action. 

Manlin opposed the motion, supporting the opposition with 

Milner’s deposition testimony indicating the Attorneys were paid 

from LLC funds.
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The trial court found that the first and third causes of 

action arose from Milner and the Attorneys “allegedly diverting 

funds from the LLCs to pay [Milner’s] legal expenses in this 

litigation. . . . Thus, the first and third causes of action are based 

on the payment of funds to maintain a lawsuit, i.e., the attorney’s 

fees incurred by Steve Milner in this lawsuit.” 

The court found that Manlin made no attempt to establish 

the legal sufficiency of his second and fourth causes of action and

presented no evidence of diversion of LLC funds to pay Milner’s 

legal fees. Accordingly, the court granted the anti-SLAPP motion

and ordered that Manlin’s cross-complaint be stricken in its 

entirety. The court awarded attorney fees to cross-defendants. 

Manlin appeals from that ruling.

C. Discovery Issues

On June 7, 2019, Milner and the LLCs served their first set 

of document requests on Manlin. We set forth the relevant 

request categories, followed by pertinent individualized requests:

Request Nos. 11-19 sought all documents showing any 

capital contribution Manlin made to the LLCs.

Request Nos. 20-28 sought all documents showing 

distributions Manlin received from the LLCs.

Request Nos. 31-38 sought agreements for any legal 

services Manlin performed for the LLCs.

Request Nos. 41-48 sought documents relating to legal 

services Manlin performed for the LLCs, including Manlin’s 

client files.

Request Nos. 50-59 sought all invoices for legal services 

Manlin performed for Milner and the LLCs.
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Request Nos. 60-69 sought all checks or other documents 

showing payment for legal services Manlin performed for Milner 

and the LLCs.

Request Nos. 72-80 sought all communications regarding 

legal services Manlin performed for the LLCs.

Request No. 29 sought all agreements between Manlin and 

defendants.

Request No. 30 sought all agreements for any legal services 

Manlin performed for defendants.

Request No. 40 sought all documents reflecting any legal 

service Manlin performed for the defendants, including Manlin’s 

client files.

Request No. 70 sought all communications regarding any 

business transaction between Manlin and the defendants.

Request No. 71 sought all communications with Milner 

regarding any legal service Manlin performed for the defendants.

Request No. 81 sought all documents regarding any 

business transaction between Manlin and the defendants. 

Manlin’s responses included essentially the same objection 

to each request. As an exemplar, his response to Request No. 2, 

which sought “all documents relating to Nadeau LLC,” was the 

following: “Objection. The request fails to identify documents 

requested to be produced with reasonable particularity; its use of 

the defined terms ‘relate, related or relating to’, ‘all’, ‘documents’

and ‘communications’ (1) is unduly burdensome and harassing to 

the extent that the burden, expense, intrusiveness of providing a 

complete response clearly outweighs the likelihood that the 

information sought will lead to the discovery of relevant and 

admissible evidence, and (2) renders the request susceptible to 

numerous inconsistent and duplicative interpretations; is vague, 
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ambiguous, and overbroad in scope; seeks information not 

relevant to the subject matter of this action and not reasonably 

calculated to lead to the discovery of admissible evidence; seeks 

information which is a matter of public record and as readily 

available to propounding party as to responding party, including 

information which propounding party has a fiduciary and 

contractual obligation to maintain; seeks information that is 

protected by the attorney work product doctrine; is duplicative of 

each other request referring to the LLC identified in this request. 

Subject to and without waiving the foregoing objections and any 

applicable General Objections, responding party responds as 

follows: Responding party is in the process of conducting a 

reasonably diligent search and is assembling and will produce 

documents which it believes are responsive to this request that it 

locates in its possession, custody and control, to be produced at a 

mutually agreeable time and place.” 

As another exemplar, Manlin’s response to Request No. 11, 

which sought “ALL DOCUMENTS showing any capital 

contribution YOU made to NADEAU LLC,” was the following: 

“The request fails to identify documents requested to be produced 

with reasonable particularity; its use of the defined terms ‘relate, 

related or relating to’, ‘all’, ‘documents’ and ‘communications’ (1) 

is unduly burdensome and harassing to the extent that the 

burden, expense, intrusiveness of providing a complete response 

clearly outweighs the likelihood that the information sought will 

lead to the discovery of relevant and admissible evidence, and (2) 

renders the request susceptible to numerous inconsistent and 

duplicative interpretations; is vague, ambiguous, and overbroad 

in scope; seeks information not relevant to the subject matter of 

this action and not reasonably calculated to lead to the discovery 
8

of admissible evidence; seeks information which is a matter of 

public record and as readily available to propounding party as to 

responding party, including information which propounding 

party has a fiduciary and contractual obligation to maintain; 

seeks information that is protected by the attorney work product 

doctrine; is duplicative of each other request referring to the LLC 

identified in this request. Subject to and without waiving the 

foregoing objections and any applicable General Objections, 

responding party responds as follows: Responding party is in the 

process of conducting a reasonably diligent search and is 

assembling and will produce documents which it believes are 

responsive to this request that it locates in its possession, custody 

and control, to be produced at a mutually agreeable time and 

place.” 

Manlin provided no documents.

On September 3, 2019, the trial court entered a stipulation 

between the parties for Manlin to produce within 10 days

“documents to which no objection is made responsive to 

Defendant’s Document Requests, Set One.” 

On September 13, 2019, Manlin served further responses, 

12 out of 81 of which asserted essentially the same objections as 

before. For example, his further response to Request No. 2 was 

the following: “Objection. The request fails to identify 

documents requested to be produced with reasonable

particularity; its use of the defined terms ‘relate, related or 

relating to’, ‘documents’ is vague, ambiguous, and overbroad in 

scope; seeks information which is a matter of public record and as 

readily available to propounding party as to responding party, 

including information which propounding party has a fiduciary 

and contractual obligation to maintain; seeks information that is 
9

protected by the attorney work product doctrine; is duplicative of 

each other request referring to the LLC identified in this request. 

Subject to and without waiving the foregoing objections and any 

applicable General Objections, responding party responds as 

follows: the production will be allowed in part and all documents 

that are in the possession, custody or control of responding party, 

to which no objection has been made, will be included in the 

production.” 

Manlin’s response to Request No. 11 was the following: 

“The production will be allowed and all documents that are in the 

possession, custody or control of the responding party will be 

included in the production.” 

In responding to other requests, Manlin stated separately 

with respect to Request Nos. 20-28 (distributions), 31-38 

(agreements for legal services), 41-48 (documents relating to legal 

services, including client files), 50-59 (invoices), and 60-69 

(payment), that “After diligent search and reasonable inquiry, 

responding party has been unable to comply with or locate any 

documents responsive to this request, and believes that any 

responsive documents are no longer in his possession, custody, or 

control. Plaintiff [sic: Defendant] has possession, custody, or 

control of the documents requested.” (Italics added.) 

With respect to Request Nos. 11-19 (capital contributions), 

Manlin stated he would produce responsive documents. Later, in 

opposition to Milner’s sanctions motion, post, Manlin declared he 

had produced “all documents in full compliance with the Court’s 

September 3 order.” 

With respect to Request Nos. 72-80 (communications 

regarding legal services), Manlin produced some responsive 

documents and stated that “all documents that are in the 
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possession, custody or control of responding party, to which no 

objection has been made, will be included in the production.” 

Later, in opposition to cross-defendants’ sanctions motion, post, 

Manlin declared he had produced “all documents in full 

compliance with the Court’s September 3 order.” 

On September 15, two days after the stipulated production 

deadline, Manlin produced a thumb drive containing 

approximately 2,165 pages of documents, none of which 

responded to Request Nos. 11-28, 41-48, or 50-69. Furthermore, 

although Request Nos. 72-80 sought all communications relating 

to legal services Manlin performed for the LLCs, he produced 

only 489 pages of emails—most from the years 2018 and 2019, 

and none dating before 2016—out of the over 3,300 the parties 

were known to have exchanged dating from 2010.

Manlin never explained why documents he could be 

expected to access—such as his own bank records—might be 

beyond his control.

On November 8, 2019, Milner sent a meet and confer letter 

to which Manlin did not respond, although on November 13 

Manlin asked Milner to agree to continue trial because he had 

been in an accident and was hospitalized on November 12. 

On November 13, 2019, Milner moved to compel further 

responses to Request Nos. 29, 30, 40, 70, 71 and 81, and sought 

$5,395 in monetary sanctions. In support of the motion, Ann Lee, 

one of the Attorneys, declared that Manlin’s thumb drive 

contained no “documents relating to Plaintiff’s representation or 

agreement for legal services with Defendant.” 

On November 27, 2019, before the first motion was 

resolved, Milner moved for issue, evidence and/or monetary 

sanctions (in the amount of $14,472) based on Manlin’s failure to 
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serve proper supplemental responses with respect to Request 

Nos. 11-19 and 72-80, and failure to serve further code compliant 

responses to Request Nos. 2-10, 20-28, 31-39, 41-48 and 50-69. 

On December 9, 2019, after a hearing Manlin did not 

attend, the trial court granted Milner’s first motion, to compel 

further responses, and imposed sanctions against Manlin in the 

amount of $4,110. 

On December 19, 2019, Manlin moved for reconsideration 

of the December 9 order, arguing that he had been involved in an 

accident on November 12, was hospitalized to December 3, and 

was unable to defend against the November 13 discovery motion. 

On December 3, 2020, the court granted Manlin’s motion 

for reconsideration. Upon reconsideration the court found that 

Milner had requested Manlin’s client file relating to his 

representation of Milner and the LLCs, but Manlin initially 

failed to respond or provide the file, and meritlessly objected to 

and refused to comply with Milner’s document requests Nos. 29, 

30, 40, 70, 71 and 81. In his supplemental response pursuant to 

the September 3, 2019 stipulated order, Manlin raised blanket 

meritless objections and produced a thumb drive that contained 

“no documents relating to Manlin’s representation or agreement

for legal services with” Milner or the LLCs. Manlin thereafter 

failed to respond to Milner’s November 8, 2019 meet and confer 

letter. 

The court therefore affirmed its December 9, 2019 order in 

its entirety. 

On March 2, 2020, the trial court held a hearing on 

Milner’s motion for issue, evidence and monetary sanctions. 

Because Manlin’s discovery response that “Plaintiff” had 

possession of the requested documents contradicted his 
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representation that he had no such possession (in that Manlin is 

the plaintiff), the court continued the hearing to afford him an 

opportunity to provide amended supplemental responses

correcting the apparent typo.

On April 1, 2020, Manlin served amended supplemental 

responses in which he addressed Milner’s requests by category—

e.g., requests Nos. 20-28, 31-38, 41-48, 50-59 and 60-69, 

pertaining to legal services Manlin performed for the LLCs—and 

changed “plaintiff” to “defendant.”

On April 6, 2021, after several continuances due to the 

COVID 19 pandemic, the trial court found Manlin’s amended 

supplemental responses failed to comply with Code of Civil 

Procedure section 2031.230 by failing to “respond separately to 

each item or category of item, and instead provides a single 

amended further response to several groups of requests.” It 

therefore disregarded the supplemental responses and looked to 

Manlin’s September 13 and 15, 2019 further responses. 

The court found Manlin’s September 13, 2019 further 

responses were “inconsistent and contradictory, and [did] not 

comply with . . . section 2031.230 for statements of representation 

of inability to comply,” because “[o]n the one hand, Manlin states 

that he does not have possession, custody or control of the 

documents,” but “[o]n the other hand, Manlin states that he does 

have possession, custody or control of the documents.” The court

credited Lee’s declaration that Manlin’s thumb drive contained 

no documents responsive to several requests, and therefor

concluded that Manlin had misused the discovery process in his 

responses to Request Nos. 11-19, 20-28, 31-38, 41-48, 50-59, 60-

69, and 72-80. 
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The court found Manlin’s failure to comply with Code of 

Civil Procedure section 2031.230 and failure to produce 

responsive documents constituted willful disobedience of the 

court’s September 3, 2019 order. 

The court denied Milner’s request for issue sanctions but 

granted the request for evidence sanctions, ordering that Manlin 

be prohibited from introducing evidence of any capital 

contributions he made to the LLCs (Request Nos. 11-19), any 

distributions he received from the LLCs (Request Nos. 20-28), or 

any communications regarding legal services he performed for 

the LLCs (Request Nos. 72-80). The court also granted in part 

Milner’s request for $18,018 in monetary sanctions, awarding 

him $11,850. 

Manlin appeals from the trial court’s December 9, 2019 and 

April 6, 2021 discovery orders.

DISCUSSION

I. Anti-SLAPP Appeal

Manlin Argues the trial court improperly granted Milner’s 

and the Attorneys’ anti-SLAPP motion because the gravamen of 

the cross-complaint, that Milner and the Attorneys diverted 

funds from the LLCs to pay Milner’s legal fees, does not 

constitute protected activity. We agree.

A. Anti-SLAPP Analysis and Standard of Review

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.” 

(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-

884.) Thus, 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 
14

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).)

In evaluating an anti-SLAPP motion, courts conduct a twostep analysis. First, the court decides whether a defendant has 

met its “burden of establishing that the challenged allegations or 

claims ‘aris[e] from’ protected activity in which the defendant has 

engaged.” (Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1061 (Park).) For these 

purposes, protected activity “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, (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, or (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).)

Second, if a defendant meets its burden on the threshold 

showing, the court decides if the plaintiff “has established that 

there is a probability that the plaintiff will prevail on the claim.”

(§ 425.16, subd. (b)(1).) To satisfy this burden, the plaintiff 

“ ‘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 
15

plaintiff is credited.’ ” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 291.) At this stage of the proceedings, a 

plaintiff “need only establish that his or her claim has ‘minimal 

merit.’ ” (Ibid.) Although “ ‘the court does not weigh the 

credibility or comparative probative strength of competing 

evidence, it should grant the motion if, as a matter of law, the 

defendant’s evidence supporting the motion defeats the plaintiff’s 

attempt to establish evidentiary support for the claim.’ ” (Ibid.) 

“In making its determination, the court shall consider the 

pleadings, and supporting and opposing affidavits stating the 

facts upon which the liability or defense is based.” (§ 425.16, 

subd. (b)(2).)

“Analysis of an anti-SLAPP motion is not confined to 

evaluating whether an entire cause of action, as pleaded by the 

plaintiff, arises from protected activity or has merit. Instead,

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 

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 v. St. 

Joseph Health System (2021) 11 Cal.5th 995, 1010 (Bonni).) “[T]o 

the extent any acts are unprotected, the claims based on those 

acts will survive.” (Id. at p. 1012.)

We review the trial court’s order granting the anti-SLAPP 

motion de novo, applying the same two-step analysis. (Oasis 

West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) We 

independently review whether a moving party has made a 

threshold showing that the challenged cause of action arises from 

protected activity. (Grewal v. Jammu (2011) 191 Cal.App.4th 

977, 988.)
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B. Application

1. First, Third, and Fourth Causes of Action

Here, the gravamen of the first and third (and derivatively 

the fourth) causes of action in Manlin’s cross-complaint is that 

Milner and the Attorneys breached fiduciary duties owed to 

Manlin and the LLCs by diverting the LLCs’ money to fund 

Manlin’s legal expenses. In the first cause of action, Manlin 

alleges Milner wrongfully diverted “funds from the LLCs in order 

to pay legal expenses of defending himself in the Manlin 

complaint against him, and suing Manlin in the Milner crosscomplaint,” and concealed information relating to the Attorneys’ 

employment. In the third cause of action, Manlin alleges the 

Attorneys “wrongfully diverted and continue to divert funds from 

each of the LLCs to [themselves] in order to pay all of Milner’s 

personal legal expenses.”

Cross-defendants argue that funding litigation constitutes 

protected petitioning activity (Rusheen v. Cohen (2006) 37 Cal.4th 

1048, 1056), and that Manlin’s cross-complaint arose from that 

activity. We disagree.

To determine whether a challenged allegation or claim 

“arises from” protected activity we must determine whether 

protected activity was the alleged injury-producing act forming 

the basis for the claim. (Park, supra, 2 Cal.5th at pp. 1062-1063.) 

“ ‘The only means specified in section 425.16 by which a moving 

defendant can satisfy the [“arising from”] requirement is to 

demonstrate that the defendant’s conduct by which plaintiff 

claims to have been injured falls within one of the four categories 

described in subdivision (e) . . . .’ ” (Id. at p. 1063.) 

“[I]n ruling on an anti-SLAPP motion, courts should 

consider the elements of the challenged claim and what actions 
17

by the defendant supply those elements and consequently form 

the basis for liability.” (Park, supra, 2 Cal.5th at p. 1063.) In so 

doing, the courts should be “attuned to and . . . respect the 

distinction between activities that form the basis for a claim and 

those that merely lead to the liability-creating activity or provide 

evidentiary support for the claim.” (Id. at p. 1064.)

Here, the element of Manlin’s claim for breach of fiduciary 

duty is the self-dealing act of diverting funds from the LLCs in 

which Manlin owns an interest. The allegation that the crossdefendants engaged in this self-dealing completes the claim. Why

they did so, for example to fund litigation,—is not an element of 

the claim, and therefore forms no basis for liability. 

In Park, for example, the plaintiff alleged that a university 

discriminated against him in denying him tenure. The complaint 

also alleged that “a school dean ‘made comments to Park and 

behaved in a manner that reflected prejudice against him on the 

basis of his national origin.’ ” (Park, supra, 2 Cal.5th at p. 1068.) 

The university specially moved to strike the complaint, arguing 

Park’s suit arose from the numerous communications that led up 

to and followed its decision to deny him tenure, and these 

communications were protected activities. (Id. at p. 1061.)

The Court held that the elements of Park’s claim depended 

not on any statements about or specific evaluations of him in the 

tenure process, “but only on the denial of tenure itself and 

whether the motive for that action was impermissible. The 

tenure decision may have been communicated orally or in 

writing, but that communication does not convert Park’s suit to 

one arising from such speech. The dean’s alleged comments may 

supply evidence of animus, but that does not convert the 

statements themselves into the basis for liability. As the trial 
18

court correctly observed, Park’s complaint is ‘based on the act of 

denying plaintiff tenure based on national origin. Plaintiff could 

have omitted allegations regarding communicative acts or filing a 

grievance and still state the same claims.’ ” (Park, supra, 2 

Cal.5th at p. 1068.)

Here, cross-defendants allegedly breached fiduciary duties 

owed to Manlin and the LLCs by diverting the LLCs’ money. No 

element of Manlin’s claim depends on the purpose for that 

diversion, but only on the diversion itself and whether it 

constituted self-dealing. The diversion may have been to further 

some protected activity—for example to fund a political campaign 

or publish a newsletter or fund litigation—but that purpose does 

not convert Manlin’s suit to one arising from the protected 

activity. The protected use to which cross-defendants put the 

diverted funds may supply evidence of the selfishness of their 

self-dealing but does not convert the use itself into the basis for 

liability. Manlin’s complaint is based on the act of diverting 

funds from the LLC for selfish purposes. Manlin could have 

omitted allegations regarding funding lawsuits and still state the 

same claim. (See Baharian-Mehr v. Smith (2010) 189 

Cal.App.4th 265, 273 [where a plaintiff alleges that a defendant 

misused corporate funds to finance wrongful litigation, the 

gravamen is the misuse of corporate funds, not the wrongful 

litigation]; see also Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 

887 [injury-producing conduct, not merely motivating conduct, 

must constitute protected activity].) We therefore conclude the 

anti-SLAPP motion was improperly granted as to Manlin’s first, 

third and fourth causes of action.
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2. Second Cause of Action

The gravamen of Manlin’s second cause of action is that 

Milner breached his fiduciary duty by failing to “stipulate to 

continue any currently existing hearing date, response date, 

notice date, motion cut off date, or other date associated with the 

presently scheduled January 8, [2020] trial.” In this instance, the 

alleged injury-producing conduct—failure to conduct litigation in 

a certain way—constitutes protected petitioning activity. 

Manlin offers no explanation how he could prevail on a 

cause of action challenging the way a party conducts litigation. 

He could not, as litigation conduct is privileged. (Civ. Code, § 47, 

subd. (b) [communications made during judicial proceedings are 

privileged]; Kettler v. Gould (2018) 22 Cal.App.5th 593, 607 

[privilege applies to any communication designed to achieve the 

objects of the litigation].)

“A plaintiff cannot establish a probability of prevailing if 

the litigation privilege precludes a defendant’s liability on the 

claims.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & 

Feld LLP (2017) 18 Cal.App.5th 95, 115.) Therefore, the antiSLAPP motion was properly granted as to Manlin’s second cause 

of action.

II. Discovery Appeal

Manlin contends the only evidence supporting the trial 

court’s December 9, 2019 order (compelling further responses and 

imposing $4,100 in sanctions) and April 6, 2021 order (imposing 

evidentiary and monetary sanctions) was Lee’s declaration that 

the thumb drive Manlin produced contained no “documents 

relating to Manlin’s representation or agreement for legal 

services with Cross-Complainants.” Manlin argues this evidence 

was insufficient to justify either order, and further argues the 
20

court abused its discretion in refusing to consider Manlin’s April 

1, 2020 responses, in which he corrected the plaintiff/defendant 

typo.

A. Dismissal and the Scope of Appeal

Manlin purports to appeal from both the December 9, 2019 

and April 6, 2021 orders. (He expressly abandons any appeal as 

to the reconsideration order.) We first consider whether the 

December 9 order, compelling further responses and imposing 

$4,100 in sanctions, and the April 6 order imposing evidentiary 

and $11,850 in sanctions are appealable. Milner argues the 

December 9, 2019 order and the April 6, 2021 order—insofar as it 

imposes evidentiary sanctions— are not appealable, and Manlin’s 

appeal as to them must be dismissed.

“A trial court’s order is appealable when it is made so by 

statute.” (Griset v. Fair Political Practices Com’n (2001) 25 

Cal.4th 688, 696.) Under Code of Civil Procedure section 904.1, 

an appeal may be taken from “an interlocutory judgment 

directing payment of monetary sanctions by a party or an 

attorney for a party if the amount exceeds five thousand dollars 

($5,000)” (§ 904.1, subd. (a)(11)) or from “an order directing 

payment of monetary sanctions by a party or an attorney for a 

party if the amount exceeds five thousand dollars ($5,000).” 

(§ 904.1, subd. (a)(12)).1

No statute authorizes direct appeal from an order imposing 

under $5,000 in monetary sanctions, nor from an order

compelling compliance with a discovery order. “An attempt to 

appeal from a nonappealable order does not give this court 

1 Undesignated statutory references will be to the Code of 

Civil Procedure.
21

jurisdiction or authority to review it.” (Sherman v. Lewis (1913) 

166 Cal. 524, 525.)

However, we need not dismiss a direct appeal from such 

orders if circumstances suggest the appeal should be treated as a 

petition for an extraordinary writ. (Olson v. Cory (1983) 35 

Cal.3d 390, 400.) Here, to require the parties to wait for the 

complaint and cross-complaints to be resolved before resolving 

Manlin’s challenges to the court’s sanctions orders is an 

inadequate legal remedy, as it might lead to unnecessary trial 

proceedings, skew evidence presented at trial, or influence 

settlement negotiations or any final award of attorney fees. 

Further, the monetary sanctions issue is final between the 

parties and ripe for early resolution, and the record on them is 

sufficiently developed to afford adequate appellate review. To 

dismiss the appeal rather than exercising our power to reach the 

merits through a mandate proceeding would, under the unusual 

circumstances before us, be “unnecessarily dilatory and 

circuitous.” (Id. at p. 401.) Accordingly, we treat the appeal as a 

petition for writ of mandate.

In any event, the April 6, 2021 order is appealable insofar 

as it imposes a monetary sanction exceeding $5,000. (See § 904.1, 

subd. (a).) In reviewing it, we necessarily consider the 

correctness of the entire April 6, 2021 order, as well as the 

December 9, 2019 order, because both the December 9 order and 

the appealable portion of the April 6 order are founded on the 

same reasoning underlying the April 6 monetary sanction.

B. Discovery Misuse

Manlin contends the trial court abused its discretion in 

determining he misused the discovery process by disobeying the 

court’s September 3, 2019 order. We disagree.
22

1. Applicable Law

“Misuses of the discovery process include, but are not 

limited to,” “[d]isobeying a court order to provide discovery” and 

“opposing, unsuccessfully and without substantial justification, a 

motion to compel . . . discovery.” (§ 2023.010, subds. (g), (h).) The 

Civil Discovery Act (§ 2016.010 et seq.) provides in pertinent 

part: “To the extent authorized by the chapter governing any 

particular discovery method . . . , the court, after notice . . . and 

after opportunity for hearing, may impose the following sanctions 

against anyone engaging in conduct that is a misuse of the 

discovery process: [¶] (a) . . . If a monetary sanction is 

authorized by any provision of this title, the court shall impose 

that sanction unless it finds that the one subject to the sanction 

acted with substantial justification or that other circumstances 

make the imposition of the sanction unjust.” (§ 2023.030, subd. 

(a).) 

Section 2031.210, subdivision (a), provides that a party to 

whom a demand for inspection has been directed “shall respond 

separately to each item or category of item.”

Section 2031.230 provides that “A representation of 

inability to comply with the particular demand for inspection . . . 

shall affirm that a diligent search and a reasonable inquiry has 

been made in an effort to comply with that demand. This 

statement shall also specify whether the inability to comply is 

because the particular item or category has never existed, has 

been destroyed, has been lost, misplaced, or stolen, or has never 

been, or is no longer, in the possession, custody, or control of the 

responding party. The statement shall set forth the name and 

address of any natural person or organization known or believed 
23

by that party to have possession, custody, or control of that item 

or category of item.”

Section 2031.310, subdivision (i), authorizes a monetary 

sanction if a party fails to obey an order compelling further 

response. (See also § 2023.030.)

We review an order imposing monetary sanctions “under 

the deferential abuse of discretion standard. [Citation.] ‘A 

court’s decision to impose a particular sanction is “subject to 

reversal only for manifest abuse exceeding the bounds of 

reason.” ’ ” (Doe v. United States Swimming, Inc. (2011) 200 

Cal.App.4th 1424, 1435.) We resolve all evidentiary conflicts in 

favor of the trial court’s ruling. (Sears, Roebuck & Co. v. 

National Union Fire Ins. Co. (2005) 131 Cal.App.4th 1342, 1350.) 

2. Application

a. December 9, 2019 Order

Here, Manlin engaged in gamesmanship by providing 

incomplete and noncompliant responses, necessitating multiple 

efforts to compel compliance with a basic discovery obligation and 

needlessly prolonging the discovery dispute. His first response 

contained boilerplate objections having little pertinence to the 

actual requests. The second response contained more frivolous 

objections, and the ultimate production was sparse and two days 

late. The trial court was very familiar with the case and the 

parties and was in the best position to evaluate Manlin’s stated 

reasons for his discovery activities. It certainly could have 

deemed his initial discovery responses to be so frivolous as to 

have been in bad faith, such that any subsequent professions of 

good faith would be suspect. Under these circumstances, we 

cannot conclude that the trial court’s decision to impose $4,100 in 

monetary sanctions constituted a “ ‘manifest abuse exceeding the 
24

bounds of reason.’ ” (Doe v. United States Swimming, Inc., supra, 

200 Cal.App.4th at p. 1435.) 

b. April 6, 2021 Order

Manlin argues the April 6, 2021 order was impermissibly 

punitive. We disagree.

A trial court has broad discretion to impose discovery 

sanctions, but they “ ‘should be appropriate to the dereliction, 

and should not exceed that which is required to protect the 

interests of the party entitled to but denied discovery.’ ” (Biles v. 

Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) A 

discovery sanction should only be such as is “ ‘suitable and 

necessary to enable the party seeking discovery to obtain the 

objects of the discovery he seeks,’ ” and may not be designed to 

impose punishment. (Ibid.)

Here, although the April 6, 2021 order was long delayed 

and ostensibly preceded by several discovery proceedings 

occurring after the December 9, 2019 order, because of 

peculiarities in the proceedings both orders pertained to the same 

discovery response: Manlin’s further responses propounded on 

September 13 and 15, 2019. (Manlin had attempted to 

supplement these further responses, but the court eventually 

disregarded the supplement and again found that the September 

13 further responses were inadequate.) The court thereafter

ordered that Manlin be prohibited from introducing evidence of 

any capital contributions he made to the LLCs, any distributions 

he received from the LLCs, or any communications regarding 

legal services he performed for them. The court also ordered that 

he pay Milner $11,850.

Given the deferential standard of review, we cannot 

conclude that the evidentiary sanction was punitive. The object 
25

of discovery is to prevent surprise at trial, but Manlin engaged in 

conduct that the trial court could have reasonably found was 

designed to conceal. With respect to both disputed and 

undisputed transactions, Manlin delayed producing what was 

clearly in his possession and failed to make a diligent search for 

records he could easily have obtained. For example, the lack of 

Manlin’s own bank records was an objective indicator that he 

could have searched more diligently for records. A trial judge is 

in the best position to develop a sense of the parties and whether 

they are engaging in delay or misconduct. Here, over the course 

of two years the judge patiently presided over a stipulated 

production schedule, a first motion to compel further responses, 

and a second motion, for sanctions, all of which resulted in only a 

tepid production. The court was therefor well within its 

discretion to finally impose evidentiary sanctions.

The April 6, 2021 monetary sanction was also permissible. 

“The court may impose a monetary sanction ordering that one 

engaging in the misuse of the discovery process, or any attorney 

advising that conduct, or both pay the reasonable expenses, 

including attorney’s fees, incurred by anyone as a result of that 

conduct. . . . [T]he court shall impose that sanction unless it finds 

that the one subject to the sanction acted with substantial 

justification or that other circumstances make the imposition of 

the sanction unjust.” (§ 2023.030, subd. (a); see also § 2031.310, 

subd. (i) [monetary sanction may be imposed in lieu of or in 

addition to issue or evidence sanction].) For a trial court to 

decline to award any amount of monetary sanctions when it finds 

discovery misconduct has occurred is arbitrary and an abuse of 

discretion. (Kwan Software Engineering, Inc. v. Hennings (2020) 

58 Cal.App.5th 57, 77.)
26

Here, the court found: (1) Manlin’s amended supplemental 

responses failed to comply with Code of Civil Procedure section 

2031.230 by failing to “respond separately to each item or 

category of item, and instead provides a single amended further 

response to several groups of requests”; (2) Manlin’s September 

15, 2019 drive contained no documents responsive to several 

requests; (3) Manlin had misused the discovery process in his 

responses to Request Nos. 11-19, 20-28, 31-38, 41-48, 50-59, 60-

69, and 72-80; and (4) his failure to comply with section 2031.230 

and failure to produce responsive documents constituted willful 

disobedience of the court’s September 3, 2019 order.

As discussed above, the court was in the best position to 

evaluate Manlin’s justifications for deficient responses, and as 

with the December 9, 2019 order, we cannot conclude that the 

trial court’s findings and decision on April 6, 2021 to impose 

additional monetary sanctions constituted a manifest abuse 

exceeding the bounds of reason.

DISPOSITION

The April 6, 2021 order imposing monetary sanctions is 

affirmed. The appeal as to other discovery orders is deemed a 

petition for an extraordinary relief, which is denied.

 The anti-SLAPP order striking Manlin’s cross-complaint 

is affirmed as to the second cause of action but otherwise 

reversed. The trial court is directed to vacate its order awarding 

Milner anti-SLAPP attorney fees and reconsider that order in 
27

light of our holding. Both sides are to bear their own costs on 

appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

MORI, J.*

*

Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.