Filed 2/24/22 Anabi Oil Corp. v. iFuel CA2/4

Opinion following supplemental briefing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

SECOND APPELLATE DISTRICT

DIVISION FOUR

ANABI OIL CORPORATION,

Plaintiff and Appellant,

v.

IFUEL, INC., et al.,

Defendants and Appellants;

EVON HALAKA,

 Defendant and Respondent.

 B301899

 (Los Angeles County

 Super. Ct. No. 19NWCV00160)

Motion for sanctions. Granted.

K.P. Roberts & Associates, Kenneth P. Roberts, Ryan 

P. Tish and Kevin Y. Kanooni for Plaintiff and Appellant.

Kashfian & Kashfian, Ryan D. Kashfian and Robert A. 

Kashfian for Defendants and Appellants.

No appearance for Defendant and Respondent.
2

INTRODUCTION

In this post-remittitur opinion, we impose $11,562.50 

in monetary sanctions against attorney Kenneth P. Roberts 

and law firm K.P. Roberts & Associates (collectively 

Roberts), counsel for plaintiff and appellant Anabi Oil 

Corporation (Anabi), for filing a frivolous motion to recall the 

remittitur. In our initial opinion, we affirmed an order 

granting in part and denying in part an anti-SLAPP motion 

filed by defendants and appellants iFuel, Inc., and Artashes 

Yepremyan. We did not address the issue of iFuel and 

Yepremyan’s entitlement to appellate attorney fees, which 

the parties had not raised. In our disposition, we ordered 

that “Anabi, iFuel, and Yepremyan shall bear their own 

costs on appeal.” (Anabi Oil Corp. v. iFuel, Inc. (July 6, 

2021, No. B301899) 2021 Cal.App.Unpub. LEXIS 4407, at 

*42 (Anabi I).) Following issuance of the remittitur, which 

restated our order regarding costs, iFuel and Yepremyan 

filed in the trial court a motion to recover appellate attorney 

fees under the anti-SLAPP statute. They argued our costs 

order did not preclude their recovery of appellate attorney 

fees, citing, inter alia, our analogous opinion in Stratton v. 

Beck (2018) 30 Cal.App.5th 901 (Stratton). 

Without citing Stratton, which he admittedly had 

reviewed, Roberts filed in this court, on Anabi’s behalf, a 

motion to recall the remittitur. Arguing “it would not make 

sense” to allow iFuel and Yepremyan to recover appellate 

attorney fees while denying them appellate costs, Roberts 

speculated that we intended in our costs order to implicitly 
3

resolve against iFuel and Yepremyan the unbriefed issue of

their entitlement to fees. Roberts asked us to recall the 

remittitur in order to clarify that this was our intent, so that 

Anabi would not “have to address” iFuel and Yepremyan’s

motion for fees. iFuel and Yepremyan argued the motion to 

recall the remittitur was frivolous, and moved for the 

imposition of monetary sanctions against Roberts for filing 

the motion, in the amount of $11,562.50 in attorney fees 

incurred in post-remittitur proceedings. We denied the 

motion to recall the remittitur, and ordered Roberts to show 

cause in writing why sanctions should not be imposed.

Roberts contends sanctions are not warranted because 

the motion to recall the remittitur was not frivolous. In the 

alternative, he requests that we impose sanctions only in an 

amount less than $1,000. We conclude the motion to recall 

the remittitur was frivolous, warranting the imposition of 

monetary sanctions against Roberts. We further conclude

iFuel and Yepremyan’s requested sum of $11,562.50 is 

appropriate, as the imposition of sanctions in this amount

will compensate iFuel and Yepremyan for their attorney fees

and discourage Roberts and others from pursuing frivolous 

claims on appeal.

BACKGROUND

A. Our Initial Opinion and Remittitur

In 2014, Anabi and iFuel executed contracts requiring 

iFuel to make monthly purchases of gasoline from Anabi, for 

resale at a gas station iFuel had leased. (Anabi I, supra, 

2021 Cal.App.Unpub. LEXIS 4407, at *5.) The contracts 
4

granted Anabi a right of first refusal with respect to iFuel’s 

leasehold interest in the gas station. (Id. at *5-*6.) The 

contracts also imposed payment obligations on iFuel, which 

Yepremyan guaranteed, in the event of a breach of the 

gasoline sale provisions. (Id. at *5.) In 2019, iFuel and 

Yepremyan entered into a settlement agreement with iFuel’s 

landlord in a separate action, agreeing to vacate the 

property. (Id. at *7-*8.) After Anabi received notice of the 

settlement agreement and the impending transfer of 

possession of the gas station, Anabi brought the instant

action against iFuel and Yepremyan, alleging they had 

breached Anabi’s right of first refusal and anticipatorily 

breached their payment obligations. (Id. at *9-*12.) iFuel 

and Yepremyan filed an anti-SLAPP motion, asking the trial

court to strike Anabi’s complaint or specified portions 

thereof. (Anabi I, supra, supra, at *12.) The court granted 

iFuel and Yepremyan’s anti-SLAPP motion with respect to 

Anabi’s claims based on the right of first refusal, but denied 

the motion with respect to Anabi’s claims based on iFuel and 

Yepremyan’s payment obligations. (Anabi I, at *21-*24.)

The parties cross-appealed; Anabi contended iFuel and 

Yepremyan’s anti-SLAPP motion should have been wholly 

denied, while iFuel and Yepremyan contended it should have

been wholly granted. (Anabi I, supra, 2021 Cal.App.Unpub. 

LEXIS 4407, at *4.) Rejecting both cross-appeals, we 

affirmed the order partially granting and partially denying 

iFuel and Yepremyan’s anti-SLAPP motion. (Anabi I, supra,

at *4, *42.) We did not address the issue of iFuel and 
5

Yepremyan’s entitlement to appellate attorney fees, which 

the parties had not raised. In our disposition, we ordered 

that “Anabi, iFuel, and Yepremyan shall bear their own 

costs on appeal.” (Id. at *42.) On October 18, 2021, the clerk 

of this court issued a remittitur, which restated our order 

regarding costs.

B. Post-Remittitur Proceedings

In November 2021, iFuel and Yepremyan filed in the 

trial court a motion to recover appellate attorney fees under 

the anti-SLAPP statute, as prevailing defendants on a 

portion of their anti-SLAPP motion. (See Code Civ. Proc., 

§ 425.16, subd. (c)(1).) They argued our costs order did not 

preclude their recovery of appellate attorney fees, citing, 

inter alia, our opinion in Stratton, supra, 30 Cal.App.5th 

901. Anabi’s counsel, Roberts, reviewed the motion and the 

authorities cited therein, including Stratton. 

In December 2021, on Anabi’s behalf, Roberts filed in 

this court a motion to recall the remittitur. Roberts argued, 

“[G]iven that neither Anabi Oil nor iFuel prevailed on their 

appeals, Anabi Oil believes it implicit [in the order for the 

parties to bear their own costs] that the Court of Appeal 

intended that neither party recover . . . fees against the

other. It is submitted that it would not make sense to deny 

an award of costs and impliedly or otherwise intend that 

iFuel would be allowed its fees upon application after 

remittitur. If Anabi Oil is correct, it is respectfully 

submitted that this Court of Appeal should recall its 
6

Remittitur to make this clarification so that Anabi Oil will 

not have to address the claim of attorney’s fees . . . .” (Fn. 

omitted.) Roberts did not cite Stratton, or any other

authority cited by iFuel and Yepremyan in the trial court.

In addition to opposing the motion to recall the 

remittitur, iFuel and Yepremyan moved for the imposition of 

monetary sanctions against Roberts under California Rules 

of Court, rule 8.276(a)(3), for filing a frivolous motion. They 

requested that sanctions be imposed in the amount of

$11,562.50 in attorney fees incurred in these post-remittitur 

proceedings, as supported by the attached declaration of 

their counsel Ryan D. Kashfian. 

On December 15, 2021, we issued an order denying the 

motion to recall the remittitur, observing, “The remittitur 

unambiguously did not determine whether iFuel and 

Yepremyan are entitled to appellate attorney fees under 

Code of Civil Procedure section 425.16, or deprive the trial 

court of jurisdiction to make that determination. (See 

Stratton v. Beck (2018) 30 Cal.App.5th 901, 904, 909-914.)” 

Contemporaneously, we ordered Roberts to show cause in 

writing why sanctions should not be assessed for the reasons 

asserted in iFuel and Yepremyan’s motion for sanctions.

1

1 We have satisfied the requirements of due process by giving 

fair warning of the imposition of sanctions, allowing Roberts to 

file opening and reply briefs on the sanctions issue, holding a 

hearing at which Roberts presented oral argument, and issuing 

this written statement of reasons. (See In re Marriage of 

Flaherty (1982) 31 Cal.3d 637, 654.)
7

In his responsive briefing, supporting declaration, and 

oral argument, Roberts misrepresented the motion to recall 

the remittitur as a neutral request for clarification. He 

maintained that the motion did not: (1) argue “one way or 

the other” whether we had intended to deny iFuel and 

Yepremyan their appellate attorney fees alongside their 

appellate costs; (2) advocate the denial of fees; or (3) make 

any request concerning the scheduled hearing in the trial 

court on iFuel and Yepremyan’s fee motion. In fact, as 

noted, the motion: (1) unequivocally stated Roberts’s belief 

that we “intended that neither party recover . . . fees against 

the other”; (2) asserted “it would not make sense” to have 

intended otherwise; and (3) asked us to recall and clarify the 

remittitur so that Anabi would not “have to address” iFuel 

and Yepremyan’s motion for fees, implicitly asking us to 

intervene so that the scheduled hearing on the motion would 

not take place.

DISCUSSION

A. Principles

1. Sanctions

“On motion of a party or its own motion, a Court of 

Appeal may impose sanctions . . . on a party or an attorney 

for: [¶] . . . [¶] Filing a frivolous motion.” (Cal. Rules of 

Court, rule 8.276(a)(3).) A motion is frivolous if any 

reasonable attorney would agree the motion is totally devoid 

of merit. (See Workman v. Colichman (2019) 33 Cal.App.5th 

1039, 1062 (Workman) [frivolous appeal]; L.A. Taxi 
8

Cooperative, Inc. v. The Independent Taxi Owners Assn. of 

Los Angeles (2015) 239 Cal.App.4th 918, 932 (L.A. Taxi)

[frivolous anti-SLAPP motion].) A motion’s failure to cite 

controlling adverse authority supports a finding of 

frivolousness. (See L.A. Taxi, supra, at 933 [defendants’ 

second anti-SLAPP motion was frivolous, in part because it 

failed to address controlling adverse authority that had been 

cited by plaintiffs in opposition to first anti-SLAPP motion]; 

Personal Court Reporters, Inc. v. Rand (2012) 205 

Cal.App.4th 182, 193 [“Where, as here, a party appeals and 

merely repeats an argument that was soundly rejected by 

another appellate panel, we have little difficulty concluding 

that the party lacked good faith in pursuing the appeal. 

Defendants’ conduct is especially egregious because they 

failed to bring the prior case to our attention”].) 

“‘Among the specific factors we may consider in 

determining the appropriate amount of sanctions are the 

amount of respondent’s attorney fees on appeal; . . . the 

degree of objective frivolousness and delay; and the need for 

discouragement of like conduct in the future.’” (Workman, 

supra, 33 Cal.App.5th at 1064.) The final factor is important 

because the pursuit of a frivolous motion squanders limited 

judicial resources, depriving litigants with genuine issues of 

the court’s time and energy. (See Kleveland v. Siegel & 

Wolensky, LLP (2013) 215 Cal.App.4th 534, 559 

[“‘Respondent[s] . . . are not the only parties damaged when 

an appellant pursues a frivolous claim. Other appellate 

parties, many of whom wait years for a resolution of bona 
9

fide disputes, are prejudiced by the useless diversion of this 

court’s attention. [Citation.] In the same vein, the appellate 

system and the taxpayers of this state are damaged by what 

amounts to a waste of this court’s time and resources’”]; In re 

Marriage of Flaherty, supra, 31 Cal.3d at 650 [“an appeal 

taken despite the fact that no reasonable attorney could 

have thought it meritorious ties up judicial resources and 

diverts attention from the already burdensome volume of 

work at the appellate courts”].)

2. Appellate Fees and Costs

Rule 8.278(d)(2) of the California Rules of Court (rule 

8.278(d)(2)) provides, “Unless the court orders otherwise, an 

award of costs neither includes attorney’s fees on appeal nor 

precludes a party from seeking them . . . .” (Rule 

8.278(d)(2).) “The plain meaning of rule 8.278(d)(2) is that 

an award of costs in the Court of Appeal generally has no 

bearing on a party’s ability to seek appellate attorney fees in 

the trial court. Indeed, a leading treatise instructs, ‘Unless 

an appellate decision expressly awards or denies fees, any 

decision on allocation of appellate costs is irrelevant to a 

later motion for fees in the trial court.’” (Stratton, supra, 30 

Cal.App.5th at 910-911, quoting Pearl, Cal. Attorney Fee 

Awards (Cont.Ed.Bar 2d ed. 2018) Obtaining Fees for 

Appellate Services, § 12.4.) Although rule 8.278(d)(2) refers 

to a costs award, it also applies where the court orders the 

parties to bear their own costs. (Stratton, supra, at 911-912

[trial court properly awarded appellate attorney fees under 
10

Labor Code section 98.2, despite prior order for parties to 

bear their own appellate costs], citing Butler-Rupp v 

Lourdeaux (2007) 154 Cal.App.4th 918, 925-927 [same, with 

respect to award of appellate attorney fees under Civil Code 

section 1717].) Moreover, rule 8.278(d)(2) applies 

“regardless of the basis on which a party may seek fees.” 

(Stratton, at 912 [deeming Butler-Rupp “indistinguishable”

despite “the different underlying basis for the attorney fee 

award”].)

Under rule 8.278(d)(2), an order for the parties to bear 

their own costs on appeal from an anti-SLAPP ruling does 

not preclude recovery of appellate attorney fees in the trial 

court. “[A] prevailing defendant on a special motion to strike 

[under the anti-SLAPP statute] shall be entitled to recover 

his or her attorney’s fees and costs. If the court finds that a 

special motion to strike is frivolous or is solely intended to 

cause unnecessary delay, the court shall award costs and 

reasonable attorney’s fees to a plaintiff prevailing on the 

motion . . . .” (Code Civ. Proc., § 425.16, subd. (c)(1).) 

“[B]ecause [this provision] authorizes an award of attorney 

fees to [the] prevailing party without limitation [to fees 

incurred in the trial court], appellate attorney fees are also 

recoverable.” (L.A. Taxi, supra, 239 Cal.App.4th at 933; 

accord, Stratton, supra, 30 Cal.App.5th at 909 [“‘[a] statute 

authorizing an attorney fee award at the trial court level 
11

includes appellate attorney fees unless the statute 

specifically provides otherwise’”].)2

B. Analysis

We conclude Roberts should be sanctioned for filing a 

frivolous motion to recall the remittitur, as any reasonable 

attorney would know the motion was totally devoid of merit. 

In other words, no reasonable attorney would have perceived 

any merit in Roberts’s argument that “it would not make 

sense” to allow iFuel and Yepremyan to recover appellate 

attorney fees while denying them appellate costs, and that 

we should therefore recall the remittitur and clarify that it 

was intended to preclude iFuel and Yepremyan’s recovery of 

appellate attorney fees. Well before Roberts advanced this 

argument, we explained in Stratton that under rule 

8.278(d)(2), a decision on the allocation of appellate costs

2 Contrary to Roberts’s suggestion, we did not hold in L.A. 

Taxi that the anti-SLAPP statute mandated an award of

appellate costs. Instead, we relied on the statute only in holding 

that the prevailing plaintiffs on a frivolous anti-SLAPP motion 

had been entitled to trial-court fees and costs, and that they also

could recover appellate attorney fees on remand. (L.A. Taxi, 

supra, 239 Cal.App.4th at 932-933.) Separately, without 

reference to the anti-SLAPP statute, we awarded the plaintiffs 

their appellate costs. (See L.A. Taxi, supra, at 934.) In any 

event, Roberts’s interpretation of L.A. Taxi does not assist him. 

Even had the anti-SLAPP statute mandated an award of 

appellate costs to iFuel and Yepremyan, any error in denying 

them costs would not have warranted recalling the remittitur in 

order to compound the error by denying them fees as well.
12

alone is “‘irrelevant’” to a later motion for fees. (Stratton, 

supra, 30 Cal.App.5th at 911.) Applying that rule in 

circumstances analogous to those here, we held that our 

order directing the parties to bear their own appellate costs 

did not preclude the trial court from awarding appellate 

attorney fees under Labor Code section 98.2, and we 

affirmed the award of such fees. (Stratton, supra, at 909-

914.) We thus did in Stratton precisely what Roberts argued 

would be senseless to do here, viz., allow a party to recover 

appellate attorney fees while denying the party appellate 

costs.

Roberts’s failure to cite Stratton in the motion 

underscored its frivolousness.3 (See L.A. Taxi, supra, 239 

3 Roberts’s failure to cite Stratton, which he admittedly had 

reviewed, also violated the Rules of Professional Conduct. (See 

Rules Prof. Conduct, rule 3.3(a)(2) (rule 3.3) [lawyer shall not 

“fail to disclose to the tribunal legal authority in the controlling 

jurisdiction known to the lawyer to be directly adverse to the 

position of the client and not disclosed by opposing counsel”]; 

Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 665, 

671, 676-678 [counsel violated rule 3.3 by failing to inform court 

of adverse controlling authority newly issued, after briefing was 

completed, in separate case litigated by same firm; court 

published opinion to “affirm -- and remind the profession of -- the 

importance of candor toward the court”]; cf. Batt v. City and 

County of San Francisco (2007) 155 Cal.App.4th 65, 82, fn. 9 

(Batt) [before adoption of rule 3.3 in California, counsel violated 

former rule 5-200, prohibiting advocacy by means inconsistent 

with truth, by failing to cite known cases “clearly . . . pertinent to 

any meaningful discussion” of issue presented], disapproved on 

another ground by McWilliams v. City of Long Beach (2013) 56 

Cal.4th 613.)
13

Cal.App.4th at 933; Personal Court Reporters, Inc. v. Rand, 

supra, 205 Cal.App.4th 182, 193.) Roberts admits he 

reviewed Stratton before filing the motion, but claims he 

reasonably believed Stratton was distinguishable because it

involved fees under Labor Code section 98.2, rather than the 

anti-SLAPP statute. But in Stratton, we emphasized that 

rule 8.278(d)(2) applies “regardless of the basis on which a 

party may seek fees,” and deemed a case involving fees 

awarded under a different statute “indistinguishable.” 

(Stratton, supra, 30 Cal.App.5th at 912.) Any reasonable 

attorney would have expected us to follow our opinion in 

Stratton despite “the different underlying basis for the 

attorney fee award . . . .”4 (Ibid.) 

We conclude Roberts’s filing of the frivolous motion to 

recall the remittitur warrants the requested imposition of 

4 Even crediting Roberts’s declaration that he believed in 

good faith -- unreasonably -- that Stratton was distinguishable, 

he violated his duty of candor to the court by failing to articulate 

that belief in the motion to recall the remittitur, instead choosing 

to ignore Stratton altogether. (See Batt, supra, 155 Cal.App.4th 

at 82, fn. 9 [“‘The obligation to disclose adverse legal authority is 

an aspect of the lawyer’s role as “officer of the court.” . . . lawyers 

should reveal cases and statutes of the controlling jurisdiction 

that the court needs to be aware of in order to intelligently rule 

on the matter. It is good ethics and good tactics to identify the 

adverse authorities, even though not directly adverse, and then 

argue why they are distinguishable or unsound’”].) As noted, 

Roberts continued to exhibit a lack of candor after we issued our 

order to show cause, by misrepresenting the motion to recall the 

remittitur as a neutral request for clarification.
14

$11,562.50 in monetary sanctions, reflecting the attorney 

fees incurred by iFuel and Yepremyan in these postremittitur proceedings. (See Workman, supra, 33 

Cal.App.5th at 1064.) Roberts neither challenges iFuel and 

Yepremyan’s evidence in support of the requested sum, nor 

articulates any reason to reduce the sum to less than $1,000, 

as he requests. It is not our duty to develop an argument for 

him. Moreover, reducing the sanctions to a paltry sum 

would defeat our principal purpose in imposing them, viz., 

“‘discouragement of like conduct in the future.’” (Id. at 

1064.) We intend that the sanctions we impose will 

discourage Roberts and others from pursuing frivolous 

claims on appeal, sparing the appellate system the “useless 

diversion of this court’s attention,” and conserving for bona 

fide disputes “this court’s time and resources.” (Kleveland v. 

Siegel & Wolensky, LLP, supra, 215 Cal.App.4th 534, 559; 

see also In re Marriage of Flaherty, supra, 31 Cal.3d at 650.)
15

DISPOSITION

iFuel and Yepremyan’s motion for sanctions is granted. 

Sanctions are imposed against Kenneth P. Roberts and K.P. 

Roberts & Associates, jointly and severally, in the amount of 

$11,562.50, payable to iFuel and Yepremyan. It is ordered 

that within 30 days of this opinion’s becoming final: 

(1)Kenneth P. Roberts and K.P. Roberts & Associates shall 

pay the sanctions imposed herein; and (2) the clerk of this 

court shall send a copy of this opinion to the State Bar of 

California (see Bus. & Prof. Code, § 6086.7, subd. (a)(3)).

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.