Filed 5/17/22 Padilla v. Limitless Trading Co., LLC CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

CHAD A. PADILLA,

Plaintiff and Appellant,

v.

LIMITLESS TRADING CO., 

LLC et al.,

Defendants and 

Respondents.

 B307560

 (Los Angeles County

 Super. Ct. No. 

 19STCV44537)

APPEAL from a judgment and orders of the Superior Court 

of Los Angeles County, Patricia D. Nieto, Judge. Reversed and 

remanded. 

Chad Padilla, in pro. per., for Plaintiff and Appellant. 

Taylor English Duma and William B. DeClercq for 

Defendants and Respondents. 

____________________
2

Chad Padilla, representing himself, sued Limitless Trading 

Co., LLC (Limitless), Aleem Wadhwania, Shabir Samiar, William 

DeClercq and DeClercq Law Group (DLG) for defamation, 

alleging they had falsely accused him of the unauthorized 

practice of law and extortion beginning in November 2019, 

including in a lawsuit filed December 9, 2019. Limitless, 

Wadhwania, DeClercq and DLG (collectively Limitless parties), 

but not Samiar, filed a special motion to strike the complaint

pursuant to Code of Civil Procedure section 425.16.

1 The trial 

court granted the motion, ruling Padilla’s complaint arose from 

protected activity (the allegedly defamatory lawsuit); Padilla 

failed to present evidence making a prima facie showing 

sufficient to sustain a favorable judgment; and, in any event, 

Padilla’s defamation claim was barred by the absolute litigation 

privilege (Civ. Code, § 47, subd. (b)). The court subsequently 

dismissed Samiar based on Padilla’s failure to timely serve the 

complaint; dismissed the entire action; and awarded Limitless 

and Wadhwania $22,500 in attorney fees.

We reverse the judgment; the order granting the 

section 425.16 motion to the extent it included allegations that 

the Limitless parties had defamed Padilla prior to filing their 

lawsuit (actually, a cross-complaint), conduct that is not

protected speech or petitioning activity within the meaning of the 

statute; and the order dismissing Samiar. We also reverse the 

order awarding attorney fees and remand with directions for the 

trial court to reconsider the appropriate award in light of our 

partial reversal of its order granting the special motion to strike. 

1 Statutory references are to this code unless otherwise 

stated.
3

FACTUAL AND PROCEDURAL BACKGROUND

1. Limitless’s Cross-complaint in the Lopez Action and 

Padilla’s Defamation Lawsuit

Juan Lopez, a former employee of Limitless, representing 

himself, sued Limitless, “Shabir Doe” and numerous Doe 

defendants on September 20, 2019, alleging causes of action for 

disability discrimination, harassment and retaliation in violation 

of California’s Fair Employment and Housing Act (FEHA) (Gov. 

Code, § 12900 et seq.); wrongful termination in violation of public 

policy; and intentional infliction of emotional distress.2

On December 9, 2019 Limitless, represented by DeClercq, 

filed a cross-complaint against Lopez, Padilla and a third 

individual, Javier De la Rosa,

3 for civil extortion and against 

Padilla for engaging in the unauthorized practice of law in 

violation of Business and Professions Code section 6126, 

constituting an unlawful business practice in violation of 

Business and Professions Code section 17200 et seq. The cross2 We grant the Limitless parties’ request for judicial notice of 

the complaint in Lopez v. Limitless Trading Co., LLC (Super. Ct. 

L.A. County, 2019, No. 19STCV33425) and Limitless’s crosscomplaint in that action, as well as the complaint in De la Rosa v. 

Limitless Trading Co., LLC (Super. Ct. L.A. County, 2019,

No. 19STCV43972). We deny as irrelevant the remaining 

portions of their request for judicial notice.

3 The cross-complaint alleged De la Rosa had threatened to 

file a lawsuit against Limitless unless Limitless met a settlement 

demand. On December 9, 2019 De la Rosa filed a complaint 

against Limitless alleging causes of action for sexual orientation 

discrimination, harassment and retaliation in violation of FEHA;

wrongful discharge in violation of public policy; and intentional 

infliction of emotional distress.
4

complaint alleged, in part, that Padilla, who is not an attorney, 

was in the business of assisting self-represented litigants; Lopez 

and De la Rosa were Padilla’s clients; and Padilla’s actions, which 

included meeting and conferring regarding a contemplated 

demurrer and discovery responses, constituted the unauthorized 

practice of law. It further alleged that Lopez or Padilla 

purporting to be Lopez had threatened to increase fees and costs 

in Lopez’s lawsuit against Limitless unless Limitless paid a 

settlement to Lopez, Padilla and De la Rosa; that Lopez and 

Padilla solicited and received from De la Rosa a false declaration 

that Limitless personnel had engaged in acts of violence against 

Lopez; and that Lopez and Padilla had “repeatedly threatened 

Cross-Complainant with acts of violence, meritless litigation, and 

improper actions that would be for the sole purpose of increasing 

attorney’s fees and costs of defense.”

On December 12, 2019—three days after Limitless filed its 

cross-complaint in the Lopez action—Padilla, representing 

himself, filed the complaint for defamation at issue in this 

appeal, naming as defendants Limitless, Wadhwania, Samiar, 

DeClercq and DLG.4 Padilla’s complaint described Limitless as 

4 On February 20, 2020, four weeks after the Limitless 

parties filed their special motion to strike and before filing his 

opposition memorandum, Padilla filed a first amended complaint 

for defamation, alleging that, beginning in January 2020, the 

Limitless parties and Samiar made defamatory comments about 

Padilla “to law firms and others in the Los Angeles area.” The 

amended complaint, which omitted any reference to Limitless’s 

cross-complaint in the Lopez action, is not an issue in this appeal. 

(Cf. former § 472, subd. (b) (Stats. 2017, ch. 273, § 3), in effect 

until January 1, 2021, providing that the right to file an amended

pleading once without leave of court before the date for filing an 
5

“a dispensary, including Cali Kulture on Wall St.”; Wadhwania 

(misnamed “Wadhwani”) as the owner of Limitless; Samiar as the 

general manager of Limitless; and DeClercq as the owner of DLG.

Paragraph 10 of the complaint, under the heading Factual 

Allegations, alleges, “In November 2019, Defendants . . . viciously 

began making meritless and false allegations against Padilla. 

The false allegations include, but are not limited to, the 

unauthorized practice of law, making verbal threats, threatening 

acts [of] violence against them, attempting to extort money from 

them.”5 The identical language is repeated as paragraph 28 

under the heading for the defamation cause of action.

Paragraph 11 alleges, “These false allegations involving 

Padilla were put [in] writing by Defendants by filing an action 

against Padilla. These false allegations were very detrimental to 

Padilla’s life because it portrays Padilla as a scam artist and 

fraud who threatens verbal and physical violence if he doesn’t get 

what he wants.” The identical language was repeated as

paragraph 29. 

After alleging that he had explained to the defendants he 

was not engaging in the unauthorized practice of law, Padilla 

alleged in paragraphs 13 and 31, “[I]nstead of accepting that 

Defendants were making false and baseless accusations, 

Defendants not only repeated these false accusations to others 

but put it in writing. On December 9, 2019, Defendants filed an 

action against Padilla accusing him of all of these wrongdoings.” 

Padilla alleged the statements made concerning him were “false 

opposition to a demurrer or motion to strike “shall not apply to a 

special motion brought pursuant to Section 425.16.”) 

5 Unnecessary capital letters are omitted when quoting from 

Padilla’s complaint.
6

and slander” and constituted “slander on their face” because they 

accused him of a crime and “expose[d] him to hatred, contempt, 

ridicule, and obloquy.”

2. The Limitless Parties’ Special Motion To Strike

On January 27, 2020 the Limitless parties moved pursuant 

to section 425.16 to strike Padilla’s complaint, arguing the cause 

of action for defamation arose out of the cross-complaint filed by 

Limitless in the Lopez action, protected speech and petitioning 

activity, and Padilla could not carry his burden of demonstrating 

a probability of prevailing on the claim because he had not 

alleged, and could not prove, any damages or that he was not, in 

fact, engaged in the unauthorized practice of law. The Limitless 

parties also argued the statements made in the cross-complaint 

were protected by Civil Code section 47, subdivision (b)’s absolute 

litigation privilege.

The Limitless parties included as exhibits to their motion 

Padilla’s deposition, taken in December 2019, as well as copies of 

email exchanges between Padilla and DeClercq regarding the 

Lopez lawsuit. Asked at his deposition whether Limitless made 

defamatory statements about him in any publication other than 

the cross-complaint, Padilla answered, “Not to my knowledge, but 

I wouldn’t be surprised if they did.” Asked whether, to his 

knowledge, Limitless had spoken to anyone, he answered, “To 

you [DeClercq] for sure, and they probably spoke to other—other 

friends of theirs. Probably. . . . To my knowledge? No, my best 

guess.” 

In his opposition to the motion Padilla insisted his 

complaint was not based on the cross-complaint in the Lopez

action. Rather, as he alleged, the Limitless parties and Samiar 

had “orally defamed” him in statements accusing him of the 
7

unauthorized practice of law and civil extortion that were made 

prior to the filing of the cross-complaint. Accordingly, he argued, 

the Limitless parties had failed to establish his complaint arose 

from protected speech or petitioning activity or their statements 

were protected by the litigation privilege. Padilla presented no 

evidence to support the merits of his defamation claim.

In their reply memorandum, addressing Padilla’s argument 

his complaint was predicated on oral statements to unnamed 

third parties, the Limitless parties pointed out that the complaint 

“does not allege what the purportedly defamatory 

communications were, who communicated, to whom, when, why 

the alleged communications were false, or how Plaintiff was 

harmed by those communications.” In addition, because the 

complaint alleged “these false allegations were put in writing” in 

the Lopez cross-complaint, the Limitless parties argued the oral 

statements “were made, if ever, to ‘achieve the objects of the 

litigation.’” 

The trial court granted the Limitless parties’ motion after 

hearing oral argument on August 5, 2020. While acknowledging 

in its order that “there may be some generic allegations of 

defamation outside the defamatory complaint,” the court rejected 

Padilla’s argument his lawsuit was based on oral statements 

made in November 2019 prior to the filing of the cross-complaint, 

finding that “[t]he only factual allegations in the Complaint 

pertain to the defamatory lawsuit” and “[t]hus, Moving 

Defendants have identified a protected activity that forms the 

basis for relief of the sole cause of action for defamation.” 

Elaborating, the court stated, “Certainly, the allegations 

concerning the complaint and the statements therein are the only 

factual allegations regarding defamatory statements. They are 
8

not ‘incidental’ or ‘contextual’ to the cause of action. [Citation.] 

They appear to be the only substantive basis of the Complaint 

and the principal claim at issue. [Citation [to a 2017 Second 

District case “endorsing the principal thrust/gravamen 

analysis”].] These allegations form the basis of recovery for 

defamation.” 

Turning to the second step of the required analysis, the 

court noted Padilla had provided no evidence to support the 

merits of his claim, thereby failing to make the necessary prima 

facie showing. In addition, the court ruled, the litigation 

privilege barred the defamation claim as to any allegations 

concerning the defamatory cross-complaint. 

The court ordered attorney fees, requested by the Limitless 

parties in their motion, to be determined pursuant to a 

separately filed noticed motion.

3. Dismissal of Samiar for Failure To Timely Serve the 

Complaint

At the case management conference held the same day as 

the hearing on the Limitless parties’ special motion to strike, 

after inquiring as to the status of service on Samiar, the court

ordered Yazan Naal, the individual who had purportedly served 

the summons and complaint on behalf of Padilla, and defendants’ 

counsel DeClercq to submit declarations regarding service. The 

court continued the case management conference to September 3, 

2020. 

Naal, who is not a registered process server, filed a 

declaration explaining he had served the summons and complaint 

for each defendant named in Padilla’s lawsuit on December 12, 

2019 “upon counsel of record for Defendants, William DeClercq,” 

at DeClercq’s business address. Naal declared he asked the 
9

receptionist at the office if he could see DeClercq to give him 

copies of the lawsuit. After speaking by telephone to DeClercq, 

the receptionist told Naal that DeClercq said he could leave all 

documents with the receptionist, which Naal did. Naal added 

that at no time did DeClercq try to contact Naal to say he was not 

the correct agent for service for any of the defendants. Naal 

attached as an exhibit the proof of service of summons on 

“William DeClerq [sic] on behalf of Shabir Samiar.” 

In his declaration DeClercq stated he had agreed via email 

exchange on December 10 and 11, 2019 to accept service of 

Padilla’s complaint on behalf of Limitless and himself (but not 

electronically) and attached a copy of the summons left at the 

reception desk at his offices, which identified the defendants as 

Limitless, DeClercq and Does 1-100. DeClercq also declared the 

receptionist was not authorized to accept service of process. A 

declaration from Wadhwania stated Limitless had no employee 

named Shabir Samiar. 

In a memorandum of points and authorities filed with the

DeClercq and Wadhwania declarations, counsel quoted California 

Rules of Court, rule 3.110(b),

6 which provides a complaint must 

be served on all named defendants and proofs of service on those 

defendants filed with the court within 60 days after filing of the 

complaint. Counsel argued the court should dismiss the 

complaint as to Samiar because Padilla had failed to timely effect 

service and because no such person was employed by Limitless. 

Counsel also argued, “Plaintiff has failed to show why there 

would be any different result [on a special motion to strike] as to 

6 References to rule or rules are to the California Rules of 

Court.
10

the unserved defendant, and accordingly, there can be no 

prejudice from an order of dismissal.” 

At the case management conference on September 3, 2020, 

after noting it had reviewed the declarations regarding service on 

Samiar, the court ordered the entire action dismissed with 

prejudice. 

4. The Motion for Attorney Fees

On September 18, 2020 the Limitless parties moved for 

$21,000 in attorney fees (42 hours at $500/hour) and $75.15 in 

costs for having successfully moved to strike Padilla’s complaint 

pursuant to section 425.16. Padilla opposed the motion, arguing 

there was inadequate evidentiary support for the fees requested 

and DeClercq and DLG, as self-represented attorneys, were not 

entitled to fees. In a reply memorandum counsel asserted the 

fees requested were incurred by Limitless and Wadhwania and 

did not include fees attributable to the defense of DeClercq or 

DLG, his professional corporation. DeClercq and DLG withdrew 

their joinder in the motion. In a supplemental declaration 

DeClercq stated Limitless was not billed for any work that 

benefitted DeClercq. In a further supplemental declaration, filed 

after the original hearing on the fees motion had been continued, 

counsel requested an additional $1,500 in fees for work in 

connection with the request for fees. 

On November 3, 2020 the court granted Limitless and 

Wadhwania’s motion, awarding $22,575.15 in fees and costs. 

Padilla filed a timely notice of appeal from the order 

dismissing his lawsuit and a second timely notice of appeal from

the subsequently entered judgment, which included the award of 

attorney fees. We consolidated the two appeals.
11

DISCUSSION

1. The Special Motion To Strike: Governing Law and 

Standard of Review

Section 425.16, commonly known as the anti-SLAPP 

statute, makes available a special motion to strike certain 

meritless claims early in the litigation: “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); see Rand Resources, LLC. v. City of Carson 

(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of 

action only if the cause of action (1) arises from an act in 

furtherance of the right of petition or free speech ‘in connection 

with a public issue,’ and (2) the plaintiff has not established ‘a 

probability’ of prevailing on the claim”].)

Pursuant to section 425.16, subdivision (e), an “‘act in 

furtherance of a person’s right of petition or free speech under the 

United States or California Constitution in connection with a 

public issue’ 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.”

In ruling on a special motion to strike under section 425.16, 

the trial court engages in a now-familiar two-step process. “First, 
12

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 a 

probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 

384 (Baral); accord, Bonni v. St. Joseph Health System (2021) 

11 Cal.5th 995, 1009 (Bonni); Park v. Board of Trustees of 

California State University (2017) 2 Cal.5th 1057, 1061 (Park).) 

To make its determination the court must consider the parties’ 

pleadings and affidavits or declarations describing the facts on 

which liability or defenses are predicated. (§ 425.16, subd. (b)(2).) 

As to the first step of the analysis, “[a] claim arises from 

protected activity when that activity underlies or forms the basis 

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

“[t]he defendant’s first-step burden is to identify the activity each 

challenged claim rests on and demonstrate that that activity is

protected by the anti-SLAPP statute. A ‘claim may be struck 

only if the speech or petitioning activity itself is the wrong 

complained of, and not just evidence of liability or a step leading 

to some different act for which liability is asserted.’” (Wilson v. 

Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson); 

see Bonni, supra, 11 Cal.5th at p. 1009 [“[t]he defendant’s burden 

is to identify what acts each challenged claim rests on and to 

show how those acts are protected under a statutorily defined 

category of protected activity”]; Park, at p. 1060.) 

A motion pursuant to section 425.16 need not challenge an

entire cause of action as pleaded in the complaint. (Bonni, supra, 

11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather, 

“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 
13

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, at 

p. 1010; accord, Baral, at p. 395.)

“As to the second step inquiry, a plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its 

complaint, even if verified; instead, its proof must be made upon 

competent admissible evidence.’” (Sweetwater Union High School 

Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940;

7 accord, 

Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) 

“‘We have described this second step as a “summary-judgmentlike procedure.” [Citation.] The court does not weigh evidence or 

resolve conflicting factual claims. Its inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. It accepts the plaintiff’s evidence as true, 

and evaluates the defendant’s showing only to determine if it 

defeats the plaintiff’s claim as a matter of law.’” (Monster 

Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714.) 

We review de novo an order granting or denying a special 

motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th 

at p. 884; Park, supra, 2 Cal.5th at p. 1067.)

7 Although the Supreme Court in Sweetwater Union High 

School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931 

referred generally to “competent admissible evidence,” the Court 

held evidence that is potentially admissible at trial, but not 

presented in admissible form, could be considered in determining 

whether the plaintiff had demonstrated a probability of success 

on the merits. (Id. at p. 949.)
14

2. The Trial Court Erred in Granting the Special Motion To

Strike in Its Entirety Rather Than Striking Only Those 

Allegations of Protected Activity Serving as a Basis for 

Relief

“Defamation constitutes an injury to reputation; the injury 

may occur by means of libel or slander. [Citation.] In general,

. . . a written communication that is false, that is not protected by 

any privilege, and that exposes a person to contempt or ridicule 

or certain other reputational injuries, constitutes libel. 

[Citations.] A false and unprivileged oral communication 

attributing to a person specific misdeeds or certain unfavorable 

characteristics or qualities, or uttering certain other derogatory 

statements regarding a person, constitutes slander. [Citations.]

. . . [¶] One of the elements of the tort of defamation is 

‘publication.’ In general, each time the defamatory statement is

communicated to a third person who understands its defamatory

meaning as applied to the plaintiff, the statement is said to have

been ‘published,’ although a written dissemination, as suggested

by the common meaning of that term, is not required. Each

publication ordinarily gives rise to a new cause of action for

defamation.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.) 

“The rule that each publication of a defamatory statement gives 

rise to a new cause of action for defamation applies when the 

original defamer repeats or recirculates his or her original 

remarks to a new audience.” (Id. at p. 1243.)

Although Padilla purported to plead a single cause of action 

for defamation, as the Supreme Court observed in Bonni, supra, 

11 Cal.5th at page 1010 and Baral, supra, 1 Cal.5th at page 382, 

there may be more than one act or set of acts supplying a basis 

for relief in a single pleaded cause of action; and it is the 

responsibility of a court considering the first step of a special 
15

motion to strike to analyze each claim for relief to determine 

whether those acts are protected speech or petitioning activity.

Padilla’s protestation to the contrary notwithstanding, his 

complaint for defamation rests in substantial part on the 

allegation that Limitless published in its cross-complaint in the 

Lopez action false statements that he had participated in a 

scheme of civil extortion and engaged in the unauthorized 

practice of law (a claim for libel). As discussed, paragraphs 11 

and 29 alleged the defendants put their false charges portraying 

Padilla as a violent scam artist in writing “by filing an action 

against Padilla”—allegations he averred were “very detrimental 

to [his] life.” Paragraphs 14 and 32, in identical language, 

alleged, “Even worse for Padilla, Defendants put in writing in 

their complaint, which is public record for anyone to see, that 

Padilla is a violent person who verbally and physically threatens 

others. Defendants put this in writing even though they knew 

these were false allegation[s] for the sole purpose of damaging 

Padilla’s reputation in the legal world.” 

Section 425.16, subdivision (e)(1), identifies as protected 

petitioning activity “any written or oral statement or writing 

made before a . . . judicial proceeding,” which unquestionably 

includes statements made in a pleading. (See ValueRock TN

Properties, LLC v. PK II Larwin Square SC LP (2019) 

36 Cal.App.5th 1037, 1046 [section 425.16 protection for 

petitioning activities “includes the filing of lawsuits, and 

statements and pleadings made in or in preparation for civil 

litigation”]; Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965 

[“pleadings in connection with civil litigation are covered by the 

anti-SLAPP statute”]; see also Briggs v. Eden Council for Hope & 

Opportunity (1999) 19 Cal.4th 1106, 1115 [“‘“[t]he constitutional 
16

right to petition . . . includes the basic act of filing litigation”’”].) 

To the extent the allegations in Limitless’s cross-complaint 

supply a basis for relief, therefore, the trial court correctly ruled 

the claim arises from activity protected by section 425.16. 

Because the Limitless parties carried their first-step burden and 

Padilla presented no evidence to demonstrate that aspect of his 

cause of action had even minimal merit, those allegations were 

properly struck from the complaint.

Although Padilla’s contention his defamation cause of 

action concerned only the oral dissemination of false statements

before the filing of the cross-complaint cannot be squared with

the complaint itself, it is equally flawed to simply disregard, as 

the Limitless parties argue and the trial court ruled, Padilla’s 

allegations of false statements accusing him of a crime, made to 

unspecified “others” beginning in November 2019, without 

reference to impending litigation or other official proceedings—

that is, his assertion of what essentially constitutes a claim for 

slander per se.8 Those allegations, which supply a basis for relief 

that falls outside the ambit of section 425.16, are not properly 

subject to a special motion to strike. 

To be sure, Padilla’s allegations the defendants began 

making false charges concerning his unauthorized practice of law 

8 Civil Code section 46 defines six categories of slander, the 

first of which is a false and unprivileged statement that 

“[c]harges any person with crime, or having been indicted, 

convicted, or punished for crime.” “A slander that falls within the

first four subdivisions of Civil Code section 46 is slander per se

and requires no proof of actual damages.” (Regalia v. The 

Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.)
17

and threats of violence weeks prior to the filing of the crosscomplaint lack specificity. As such, his complaint may be subject 

to demurrer or a traditional motion to strike. (Cf. Medical 

Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 

893 [“[c]ase law requires that statements alleged to constitute 

libel must be specifically identified, if not pleaded verbatim, in 

the complaint [citations]; less specificity is required in the 

pleading of slander, given that slander may be charged 

by alleging the substance of the defamatory statement”; internal

quotation marks and italics omitted]; Gilbert v. Sykes (2007)

147 Cal.App.4th 13, 32 [an allegation “of a ‘provably false factual

assertion’ . . . is indispensable to any claim for defamation”].) But

that type of challenge to the adequacy of a pleading is not the

function of the first step of the anti-SLAPP analysis. And a

successful demurrer or motion to strike, unlike a motion under

section 425.16, would normally be accompanied by permission to

file an amended pleading to correct the deficiencies identified.

We also are unpersuaded by the Limitless parties’ extended

quotation from Padilla’s deposition, which they argue

demonstrates the lack of merit to his claim defamatory

statements were published to third parties prior to the filing of

the cross-complaint. That may well be the basis for a successful

motion for summary judgment. But the special motion to strike

is framed by the pleading, and the moving party’s first-step

burden is to establish the allegations that provide a basis for

relief arise from protected activity. Padilla’s slander per se

allegations do not. The trial court erred in granting the Limitless 

parties’ motion to strike the entire cause of action.
18

3. The Trial Court Erred in Dismissing Samiar

In its order following the case management conference on 

September 3, 2020, after reciting that the Limitless parties’ 

special motion to strike had been granted on August 5, 2020, the 

court stated: “Court reviews the declarations provided by Chad 

Padilla and William DeClercq, Esq. in regards to service to 

Defendant, Shabir Samiar. [¶] After hearing oral argument, the 

Court makes the following orders: [¶] The Court orders the 

Amended Complaint (1st) filed by Chad Padilla on 02/20/2020 

dismissed with prejudice.” The minute order contains no other 

findings, and the appellate record does not include a reporter’s 

transcript or settled or agreed statement describing any oral 

ruling made at the conference. 

Although the basis for the court’s dismissal of the action as 

to Samiar was not expressly stated on September 3, 2020, when

summarizing the history of the case as part of its ruling on 

Limitless and Wadhwania’s motion for attorney fees on 

November 3, 2020, the court explained, “On September 3, 2020, 

the Court dismissed the entire action with prejudice for failure to 

serve the last remaining defendant, Samiar.” 

Padilla argues on appeal the dismissal of Samiar was 

improper. He relies on Naal’s declaration and the attached proof 

of service on DeClercq (as defense counsel) on behalf of Samiar, 

as well as a second proof of service of summons, submitted to the 

trial court on August 6, 2020, purporting to show personal service

by a registered process server on Samiar (or a person authorized 

to receive service of process) for him earlier that day at the office 

address of defense counsel. 

In their respondents’ brief the Limitless parties argue the 

trial court correctly ruled no one by the name of Shabir Samiar 
19

had been validly served (and assert no such person ever worked 

at Limitless) and “properly exercised its discretion in dismissing 

‘Shabir Samiar’ as an unserved defendant whose result would 

have been the same.” 

To the extent there was a conflict in the evidence whether 

DeClercq agreed to accept service on behalf of all named 

individual defendants, either through his direct contact with 

Padilla or by communicating with Naal through the law firm’s 

receptionist, those issues of fact and credibility are the province 

of the trial court. As a reviewing court we do not reweigh the 

evidence or reconsider credibility determinations. (See Katsura 

v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107; 

In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 

28, 34.) Accordingly, on the limited record before us on this point, 

we have no basis for overturning the trial court’s implied finding 

that Samiar was not properly served by Naal. 

The renewed effort to serve Samiar, as reflected by the 

August 6, 2020 proof of service of summons signed by the 

registered process server, presents a somewhat different issue. 

The proof of service may well have created a rebuttable 

presumption that service had properly been made. (See Evid. 

Code, § 647; Floveyor Internat., Ltd. v. Superior Court (1997) 

59 Cal.App.4th 789, 795 [“The filing of a proof of service creates a 

rebuttable presumption that the service was proper. However, 

the presumption arises only if the proof of service complies with 

the applicable statutory requirements”].) However, given the 

sparse discussion of the service issue in the court’s minute orders 

and the absence of a reporter’s transcript or agreed or settled 

statement, we cannot tell whether defense counsel presented 

information at the September 3, 2020 hearing that rebutted the 
20

presumption (see Fernandes v. Singh (2017) 16 Cal.App.5th 932, 

940 [presumption of Evidence Code section 647 may be rebutted

by contrary evidence]) or the court for some reason did not 

actually consider this additional attempt to serve Samiar. As the 

appellant, the burden was on Padilla “to demonstrate, on the 

basis of the record presented to the appellate court, that the trial 

court committed an error that justifies reversal of the judgment.” 

(Jameson v. Desta (2018) 5 Cal.5th 594, 609; see Aguilar v. Avis

Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [“[w]e reject 

defendants’ claim, therefore, because they failed to provide this 

court with a record adequate to evaluate this contention”];

see also Vo v. Las Virgenes Municipal Water Dist. (2000) 

79 Cal.App.4th 440, 448 [“[t]he absence of a record concerning 

what actually occurred [in the trial court] precludes a 

determination that the trial court abused its discretion”].) 

Padilla failed to carry this burden. 

That said, accepting that as of September 3, 2020 the 

individual defendant identified in Padilla’s complaint as 

Shamir Samiar remained unserved, it was error for the trial 

court to dismiss the complaint as to him. Section 583.420, 

subdivision (a)(1), authorizes the trial court to dismiss an action 

if service has not been made within two years after the action 

was commenced. Padilla’s lawsuit had not yet been pending for 

nine months when the court dismissed the action with prejudice. 

As the Limitless parties argued in the trial court—an 

argument not repeated on appeal—rule 3.110(b) requires the

complaint be served on all named defendants and proofs of 

service on those defendants filed with the court within 60 days 

after filing of the complaint. But, pursuant to rule 3.110(f), the 

court must issue an order to show cause before imposing 
21

sanctions for a plaintiff’s failure to serve the complaint as 

required. No order to show cause was issued in this case, let 

alone one that identified dismissal as a possible sanction. Padilla 

was entitled, not only under rule 3.110 but also a matter of due 

process, to proper notice before the court dismissed his claims 

against Samiar. (Cf. Sole Energy Co. v. Hodges (2005) 

128 Cal.App.4th 199, 207-208.)9 In addition, dismissal of the 

lawsuit as the initial sanction for failing to properly serve a 

defendant when the action has not yet been pending for 

two years, absent extraordinary circumstances, would constitute 

an abuse of discretion. (See generally Lopez v. Watchtower Bible

& Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 

604-605 [“[a]lthough in extreme cases a court has the authority to 

order a terminating sanction as a first measure [citations], a 

terminating sanction should generally not be imposed until the 

court has attempted less severe alternatives and found them to 

be unsuccessful and/or the record clearly shows lesser sanctions

would be ineffective”].) In sum, it was error to dismiss the action 

against Samiar even if he had not yet been properly served. 

4. The Trial Court Must Reevaluate the Attorney Fee 

Award

Subject to certain exceptions not pertinent here, “a 

prevailing defendant on a special motion to strike shall be

9 Given our reversal of the judgment in favor of the Limitless 

parties, we need not address their problematic argument, made 

to the trial court and hinted at in their respondents’ brief, that 

the erroneous dismissal of Samiar was harmless or somehow 

within the trial court’s broad discretion to control the proceedings 

because the action against him would have been dismissed in any 

event if he had joined their section 425.16 special motion to 

strike. 
22

entitled to recover his or her attorney’s fees and costs.” (§ 425.16, 

subd. (c)(1).) “[A] party need not succeed in striking every 

challenged claim to be considered a prevailing party within the 

meaning of section 425.16.” (Mann v. Quality Old Time Service,

Inc. (2006) 139 Cal.App.4th 328, 339.) 

Unless the results obtained are so insignificant as to 

provide no practical benefit, partial success by the moving party 

generally “reduces but does not eliminate the entitlement to 

attorney fees.” (ComputerXpress, Inc. v. Jackson (2001) 

93 Cal.App.4th 993, 1020 [defendants are entitled to recover 

attorney fees and costs incurred in moving to strike the claims on 

which they prevailed, but not fees and costs incurred in moving to 

strike the remaining claims]; accord, Area 51 Productions, Inc. v. 

City of Alameda (2018) 20 Cal.App.5th 581, 605.) When counsel’s 

work on successful and unsuccessful portions of the motion 

overlap, the trial court properly looks to the defendant’s relative 

success in achieving his or her objective and may, in its 

discretion, reduce the amount of fees awarded for partial success. 

(See, e.g., Mann v. Quality Old Time Service, Inc., supra,

139 Cal.App.4th at pp. 344-345.) 

Because the trial court erred in granting the Limitless 

parties’ special motion to strike in its entirety, its award of 

attorney fees to Limitless and Wadhwania as the prevailing 

parties failed to consider whether the fees requested should be 

reduced for their limited success (that is, what fees should be 

awarded for their partial success). A remand to allow the court to 

make that assessment is necessary. Padilla can raise in the trial 

court his arguments presented on appeal concerning any 

necessary allocation of total fees incurred to DeClercq and DLG 
23

and, if it remains material, the proper calculation of the fees to be 

awarded.

DISPOSITION

The judgment and orders granting the special motion to 

strike in favor of the Limitless parties, dismissing Samiar and 

awarding Limitless and Wadhwania attorney fees are reversed. 

The cause is remanded with directions to enter a new order 

granting in part the Limitless parties’ special motion to strike 

only to the extent it is based on protected litigation activity as 

indicated in this opinion and to reconsider the award of attorney 

fees to Limitless and Wadhwania in light of our decision. The 

parties are to bear their own costs on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.