Filed 8/27/21 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANDY KIM,

Plaintiff and Appellant,

v.

R CONSULTING & SALES, INC. et al.,

Defendants and Respondents.

 D076923

 (Super. Ct. No. 37-2019-

00023850-CU-MC-CTL)

 ORDER MODIFYING OPINION

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed on July 30, 2021, be modified as 

follows:

On page 16, second sentence of the first full paragraph after part II.B, 

change “against” to “in favor of” so the sentence reads:

Were we to do so, we would nonetheless affirm the judgment in favor of

R Consulting and Michel because Kim failed to provide a complete record for 

us to review.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is 

certified for publication with the exception of part II.B.
2

There is no change in the judgment.

HUFFMAN, Acting P. J.

Copies to: All parties
Filed 7/30/21 (unmodified version)

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANDY KIM,

Plaintiff and Appellant,

v.

R CONSULTING & SALES, INC., et 

al.,

Defendants and Respondents.

 D076923

 (Super. Ct. No. 37-2019-

00023850-CU-MC-CTL)

APPEAL from judgments of the Superior Court of San Diego County, 

Richard E. L. Strauss, Judge. Affirmed.

Paul N. Tauger; ONE and Peter R. Afrasiabi for Plaintiff and 

Appellant.

Neil, Dymott, Frank, McCabe & Hudson and Matthew R. Souther for 

Defendants and Respondents R Consulting & Sales, Inc., Raquel Michel, and 

Lance Ricotta.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is 

certified for publication with the exception of part II.B.
2

Klinedinst, Daniel S. Agle and Robert M. Shaughnessy for Defendants 

and Respondents Michael J. Mason, Paul S. Metsch, and Metsch & 

Mason, LLP.

INTRODUCTION

In May 2019, Andy Kim filed a lawsuit against law firm Metsch & 

Mason, LLP, its partners Paul S. Metsch and Michael J. Mason (collectively, 

the law firm defendants), and their clients R Consulting & Sales, Inc.

(R Consulting), Raquel Michel, and Lance Ricotta for malicious prosecution, 

abuse of process, and intentional infliction of emotional distress. In his suit, 

Kim alleged the defendants wrongfully initiated contempt charges in 

connection with their enforcement of a civil judgment against him in 

R Consulting v. Info Tech et al. (Super. Ct. San Diego County, 2015, No. 37-

2015-00002561-CU-BC-CTL.) The defendants filed motions to strike the 

complaint under Code of Civil Procedure1 section 425.16, the anti-SLAPP 

statute, and the court granted the motions and entered judgments against 

Kim. Kim appeals the court’s grant of the anti-SLAPP motions, contending:

(1) an order to show cause regarding contempt can form the basis of a 

malicious prosecution action; (2) the trial court erred in concluding that Kim 

could not show a probability of success on his malicious prosecution claim 

because it applied an incorrect standard to determine whether the 

defendants had probable cause to seek contempt; and (3) the defendants 

acted maliciously by continuing to prosecute the contempt action following 

1 Further unspecified statutory references are to the Code of Civil 

Procedure.
3

our decision in R Consulting & Sales, Inc. v. Info Tech Corporation et al. (Jan. 

18, 2019, D072492) [nonpub. opn.].

We conclude that the defendants’ motion for an order to show cause

(OSC) re contempt does not form a basis for a malicious prosecution action 

here, preventing Kim from demonstrating a probability of success on the 

merits, and we will affirm the judgments in favor of the law firm defendants, 

R Consulting, and Michel on that basis. Because we conclude an OSC re 

contempt does not form a basis for a malicious prosecution action, we do not 

reach Kim’s arguments that the court applied an incorrect standard in 

reaching its decision or that defendants acted maliciously in pursuing 

contempt. Further, because Kim failed to provide a complete record on 

appeal, even were we to reach the second and third issues, we would be

unable to fully evaluate the judgment in favor of R Consulting and Michel, 

and we would affirm that order and judgment on that basis. Kim did not file 

a notice of appeal regarding the order or judgment in favor of Ricotta, so we 

lack jurisdiction to entertain any challenge regarding Ricotta. (Cal. Rules of 

Court, rule 8.104(b); Van Beurden Ins. Servs. v. Customized Worldwide 

Weather Ins. Agency (1997) 15 Cal.4th 51, 56.)

I.

BACKGROUND AND PROCEDURAL HISTORY

A. The Underlying Lawsuit

In January 2015, R Consulting sued Kim and his company Info Tech 

Corporation (Info Tech) for breach of contract, alleging they failed to pay 

airplane lease payments.2 Kim and Info Tech cross-complained, alleging 

2 The facts in this section are taken from R Consulting & Sales, Inc. v. 

Info Tech Corporation et al., supra, D072482, an appeal regarding an earlier

lawsuit between the same parties.
4

among other things that R Consulting and certain individuals defrauded 

them by making false representations about the aircraft. In April 2016, 

R Consulting moved to compel compliance with inspection demands, seeking 

access to e-mail stored on some of the Info Tech servers. In connection with 

this motion, the court ordered Kim to produce the documents and issued 

monetary sanctions. By November 2016, Kim had not provided the 

documents or access to the servers. Once R Consulting finally accessed the 

server, it discovered the server was inoperable. It sought issue, evidentiary, 

or terminating sanctions against defendants, asserting that defendants had 

intentionally sabotaged the servers to prevent the collection of the 

information necessary to prosecute the complaint and defend against the 

cross-complaint. The court granted terminating sanctions. 

Kim and Info Tech timely appealed that decision.

B. Postjudgment Collection Litigation

Following that judgment, R Consulting and its law firm, Metsch & 

Mason LLP, began collection proceedings. The postjudgment litigation 

continued throughout 2017 and 2018, and as part of it, Kim was required to 

participate in judgment debtor examinations. In January 2018, the trial 

court imposed a turnover order, requiring Kim to supply copies of his 

paychecks, and it also ordered Kim to pay 25 percent of his disposable income 

from his employers. 

R Consulting accused Kim of failing to cooperate, and the law firm, on 

behalf of R Consulting, filed a motion for an OSC regarding contempt against 

Kim under section 1209, arguing Kim willfully failed to appear at four

judgment debtor examinations, violated a salary turnover order, and 

committed perjury. Attorney Michael Mason’s supplemental declaration 

alleged five charges: (1) Kim failed to appear at judgment debtor exams on 
5

November 7, 2017, January 5, 2018, July 13, 2018, and October 12, 2018; 

(2) Kim delayed in providing payment records and failed to provide 

information about the receipt of a $25,000 payment issued by an employer; 

(3) Kim failed to provide payment records from two employers, IT Source and 

Emajee, then turned over funds which accounted for only 25 percent of Kim’s 

earnings from one of the employers; (4) Kim failed to supply dated and legible 

payment records from employer IT Source; and (5) Kim failed to provide any 

payment records from employer Emajee.

The trial court granted R Consulting’s motion and set an OSC for 

contempt, at which time the court planned to arraign Kim on the charges and 

set a date for trial on contempt. It instructed R Consulting to prepare an 

OSC setting forth charges of contempt. The court subsequently issued an 

order granting the motion for an OSC at which Kim would need to show 

cause as to why he should not be held in civil contempt. 

C. The Earlier Appeal

R Consulting used the same allegations as a basis for its motion to 

dismiss Kim’s appeal of the terminating sanctions, arguing the 

disentitlement doctrine should have prevented him from seeking the appeal. 

Specifically, R Consulting contended in its motion to dismiss that Kim 

materially failed to comply with his obligations during the judgment 

enforcement process by failing to appear at four court-ordered judgment 

debtor exams, violated a salary turnover order, committed perjury at the 

judgment debtor examinations, and failed to file individual tax returns since 

2008. R Consulting also separately argued there was substantial evidence to 

support the trial court’s finding of spoliation of evidence and terminating 

sanctions.
6

On January 18, 2019, a panel of this court issued its unpublished 

opinion in R Consulting & Sales, Inc. v. Info Tech Corporation et al., supra,

D072492. We declined to exercise our discretionary power to dismiss the 

appeal and addressed the issues on which R Consulting based its request for 

dismissal. We concluded that “[a]s frustrating as Kim’s behavior and 

testimony have been during the judgment debtor process, dismissal of 

defendants’ appeal [was] not the appropriate remedy.” 

We also concluded there was substantial evidence to support the court’s 

imposition of a termination sanction due to its determination that Kim had 

engaged in spoliation, and we affirmed the judgment.

D. The Contempt Trial

The civil contempt trial proceeded in R Consulting’s case against Kim 

on April 15, 2019. At the outset of the proceeding, the trial court dismissed 

counts two through five, all of which related to the turnover order, for failure 

to include language required by section 699.040, subdivision (c). Following 

R Consulting’s presentation of evidence, Kim requested dismissal of the 

remaining count, which related to his alleged failures to appear at the four 

debtor examinations. The trial court found Kim not guilty of contempt and 

dismissed all charges. 

E. Kim’s Suit for Malicious Prosecution

In May 2019, Kim filed the present suit against R Consulting, Michel,

Ricotta, Mason & Metsch LLP, and Mason and Metsch individually, alleging 

malicious prosecution, abuse of process, and intentional infliction of 

emotional distress. The causes of action were all based on the contempt 

charges in the earlier lawsuit. 

The law firm defendants filed a motion to strike the complaint under 

section 425.16, the anti-SLAPP statute. The remaining defendants answered 
7

the complaint, and R Consulting and Michel filed a separate anti-SLAPP 

motion to strike from the one Ricotta filed.3 

In their motion to strike, the law firm defendants argued that contempt 

proceedings could not form the basis of a malicious prosecution charge 

because contempt is a subsidiary procedural action. The trial court declined 

to determine whether an OSC regarding contempt could provide a basis for 

malicious prosecution, but it granted the law firm defendants’ motion, 

dismissed the complaint, and entered judgment in their favor because it

concluded that Kim could not show a probability of prevailing on his claim, as 

he failed to show a lack of probable cause to initiate the contempt 

proceedings. Echoing its analysis in the judgment and order in favor of the 

law firm defendants, a couple months later, the court granted R Consulting 

and Michel’s anti-SLAPP motion. Judgment was entered in those 

defendants’ favor. Kim timely appealed these judgments. 

3 Kim’s first notice of appeal addressed the order and judgment in favor 

of the law firm defendants. Kim’s second notice of appeal addressed the order 

and judgment in favor of R Consulting and Michel. Neither of the notices of

appeal addresses the order or judgment in favor of Ricotta, and no judgment 

in favor Ricotta appears in the record. Further, Kim did not include in the 

record the briefing, affidavits, or other evidence regarding the motions 

brought by R Consulting and Michel, or by Ricotta. 
8

II.

DISCUSSION

A. Malicious Prosecution Based on Contempt Charges

Kim appeals from judgments granting anti-SLAPP motions and 

dismissing his lawsuit.4 We review anti-SLAPP motions de novo. (Freeman 

v. Schack (2007) 154 Cal.App.4th 719, 727 (Freeman).) 

The anti-SLAPP statute provides that “[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).) A court conducts a two-step analysis when 

ruling on a special motion to strike under the anti-SLAPP statutory 

framework. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th

53, 67 (Equilon).) “First, 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 the probability of success.” 

(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) The second step is a 

“ ‘summary-judgment-like procedure.’ ” (Ibid.) “[T]he trial court in making 

these determinations considers ‘the pleadings, and supporting and opposing 

affidavits stating the facts upon which the liability or defense is based.’ ” 

(Equilon, at p. 67, quoting § 425.16, subd. (b)(2).)

4 Kim only challenges the judgments on the malicious prosecution cause 

of action.
9

There is no dispute here that defendants’ allegedly wrongful conduct of 

moving for an OSC re contempt is protected activity. A malicious prosecution 

action, by its terms, arises from an underlying lawsuit and alleges defendants 

committed a tort by engaging in the underlying action. (See Jarrow 

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, 740-741 (Jarrow 

Formulas) [concluding that malicious prosecution is not exempt from antiSLAPP scrutiny and explaining that “every Court of Appeal that has 

addressed the question has concluded that malicious prosecution causes of 

action fall within the purview of the anti-SLAPP statute”].) 

Although a malicious prosecution claim meets the requirement of the 

first prong because it constitutes activity protected by section 425.16 (see 

Baral, supra, 1 Cal.5th at p. 384; Jarrow Formulas, supra, 31 Cal.4th at 

pp. 734-735, 740-741), Kim does not meet the second prong of the test 

because he cannot demonstrate a probability of success on the merits, as an 

OSC for contempt does not properly form the basis of the malicious 

prosecution action here, as we next explain. 

To establish a malicious prosecution claim, a plaintiff must show (1) the 

defendants commenced the prior action or directed it, and the defendants 

pursued the action to legal termination in the plaintiff’s favor; (2) the 

defendants brought the action without probable cause; and (3) the defendants 

initiated the action with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 

47 Cal.3d 863, 871-872; Silver v. Gold (1989) 211 Cal.App.3d 17, 22.) 

Additionally, a malicious prosecution action cannot be based on a 

subsidiary procedural action or an action that is purely defensive. (Merlet v. 

Rizzo (1998) 64 Cal.App.4th 53, 59 (Merlet).) This is because permitting a 

malicious prosecution action based on actions taken in pending litigation 

“would disrupt the ongoing lawsuit by injecting tort claims against the 
10

parties’ lawyers and because the appropriate remedy for actions taken within 

a lawsuit lies in the invocation of the court’s broad powers to control judicial 

proceedings. [Citation.]” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 

528 (Adams).) 

Kim acknowledges there is split of authority regarding whether an 

OSC for contempt can be the basis of a malicious prosecution action. He 

implies that he can validly raise a complaint for malicious prosecution based 

on R Consulting’s and the law firm’s conduct of filing an OSC for why 

contempt should not have been issued. We start by considering whether 

malicious prosecution based on the filing of contempt charges is proper. 

In Chauncey v. Niems (1986) 182 Cal.App.3d 967 (Chauncey), the 

Second Appellate District, Division One, considered whether a cause of action 

for malicious prosecution could be based on an OSC regarding contempt 

during a marriage dissolution dispute. (Id. at pp. 971-973.) Chauncey 

argued that his ex-wife had made several legal requests in an effort to harass 

him before his impending remarriage. (Id. at p. 972.) In dicta, the court 

reasoned that the OSC re contempt exposed Chauncey to sanctions, so it bore 

the earmarks of an adversarial proceeding: it required him to retain counsel, 

appear in court, and respond to lengthy interrogatories. (Id. at p. 975.) The 

court further explained that although the OSC did not exist independently 

from the rest of the lawsuit, “it incurred expenses, provoked psychological 

trauma and required expenditure of time and effort to defend,” so it was “the 

sort of proceeding upon which plaintiff could base a malicious prosecution 

action.” (Id. at pp. 975-976.) However, it also sought to keep the scope of 

such claims narrow, commenting that “[t]o hear malicious prosecution claims 

in any but the most egregious cases would unduly encourage litigation of this 

sort. Unlimited access to a forum in which to litigate malicious prosecution 
11

claims based on marital dissolutions would clog the courts, and exacerbate 

and prolong what is ordinarily an acutely unhappy state of affairs.” (Id. at 

p. 979.)

Division Five of the First Appellate District reached a different 

conclusion outside the family law context in Lossing v. Superior Court (1989) 

207 Cal.App.3d 635 (Lossing). There, the appellate court held that an OSC

regarding contempt, even one brought in bad faith or for harassment, is most 

appropriately addressed with an award of sanctions against the attorney 

because permitting such a cause of action would “frustrate the intent of the 

Legislature to vest the courts with broad power to control proceedings.” (Id.

at pp. 636, 639.) In reaching this conclusion, the court considered contempt 

proceedings in the context of the discovery statutes and determined that 

contempt was a sanction for misuse of the discovery process, which meant it 

was part of an ongoing action, not a separate proceeding. (Id. at pp. 636, 

638.) Because a motion for an OSC regarding contempt was ancillary, and 

not independent, it could not provide the basis for a malicious prosecution 

action. (Ibid; see also Merlet, supra, 64 Cal.App.4th at p. 59; Adams, supra, 2 

Cal.App.4th at p. 528.) 

Like the court in Lossing, our Supreme Court has emphasized the role 

of an action’s independence in determining whether a malicious prosecution 

claim can arise. In Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782, 

the Supreme Court distinguished cross-complaints from appeals because 

cross-pleadings are treated as “distinct and independent actions,” while an 

appeal “ ‘is not a separate proceeding and has no independent existence.’ ”

(Id. at p. 793, quoting Twyford v. Twyford (1976) 63 Cal.App.3d 96, 922.) 

Thus, we look to the issue of independence of action in reaching our 

conclusion here. 
12

Kim argues that the contempt charge here was an independent action 

because it required an arraignment and a criminal plea, as well as proof of 

guilt beyond a reasonable doubt, and it could have resulted in a criminal 

record for Kim. Kim also maintains that malicious prosecution claims have 

been routinely permitted when the accused has secured a favorable 

termination of a criminal trial imposed by an improper charge. However, the 

cases he cites are distinguishable; they address criminal charges brought 

outside the parameters of existing civil actions, not civil contempt charges 

raised in the context of a discovery dispute. 

For example, in Tushinsky v. Arnold (1987) 195 Cal.App.3d 666, 670-

671, the malicious prosecution claim was based on a charge brought by the 

district attorney after a wife filed a Domestic Violence Prevention Act (DVPA) 

petition. There, the wife directed her attorney to do nothing that would 

result in her child’s father being criminally prosecuted for the sexual abuse 

she believed her husband was imposing on her daughter, instead asking that 

the matter be handled in the civil courts only in connection with their marital 

dissolution. The attorney allegedly advised the mother to file a DVPA 

petition, knowing the district attorney would be required to investigate 

allegations, potentially giving rise to a criminal accusation. The wife filed the 

DVPA petition, and the district attorney filed a criminal complaint against 

the husband, which it later dismissed. After the dismissal, the husband sued 

the wife for malicious prosecution based on her filing the DVPA petition

without “ ‘honestly, reasonably and in good faith’ ” believing her husband was 

guilty of the crimes charged, and judgment was entered against the wife. 

The wife filed an action against the attorney for infliction of emotional 

distress and negligence, and for breach of confidence and trust and for the 

establishment of a constructive trust. The trial court dismissed those causes 
13

of action, and the wife appealed, contending she had met her pleading 

burden. The appellate court did not discuss the propriety of the husband’s 

earlier malicious prosecution case. It simply identified that the husband had 

been successful in his malicious prosecution case, which established collateral 

estoppel as to some of the elements of the causes of action in the wife’s case. 

In other words, Tushinsky had nothing to do with whether a party can sue for 

malicious prosecution following a favorable outcome in a contempt trial.

In Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 919-920, the 

plaintiff had been arrested without a warrant, and the court concluded that a 

warrantless arrest was not a “proceeding” giving rise to a malicious 

prosecution action. The arrest occurred outside the context of any other civil 

or criminal case.

In contrast here, the OSC re contempt was issued in the context of 

ongoing, contentious litigation and regarded repeated efforts at engaging Kim 

in postjudgment debtor examinations, as well as discovery related to 

collection of the judgment; it was not raised as a separate proceeding with an 

independent existence. Without the underlying postjudgment discovery 

disputes, there would be no contempt motion. While the motion undoubtedly 

“incurred expenses . . . and required expenditure of time and effort to defend” 

(Chauncey, supra, 182 Cal.App.3d at p. 975), those expenses and efforts were 

the result of ongoing litigation, not new or different obligations resulting from 

a course of conduct independent from the existing litigation (see Lossing,

supra, 207 Cal.App.3d at pp. 636, 638). Because the OSC regarding contempt 

was not a valid basis for a malicious prosecution claim here, the malicious 

prosecution complaint was properly struck. 

In his reply brief, Kim emphasizes that contempt of court is a criminal 

offense and not a civil matter. And during oral argument, counsel for Kim 
14

likewise asserted that this matter should be handled differently than Lossing

because of its criminal nature. But the order at issue here was not one for 

criminal contempt; the court granted a request for an OSC for why it should 

not issue civil contempt, and the minutes of the contempt trial identified it as 

a civil trial, not a criminal one. 

Civil contempt is quasi-criminal in nature, but it is governed by 

sections 1209 through 1222, whereas criminal contempt is prosecuted and 

punished as a violation of Penal Code section 166 and it results in a 

misdemeanor conviction. (Pacific Tel. & Tel. Co. v. Superior Court of Los 

Angeles County (1968) 265 Cal.App.2d 370, 371-372; Mitchell v. Superior 

Court (1989) 49 Cal.3d 1230, 1240 (Mitchell).) The Code of Civil Procedure 

authorizes the court to impose fines or imprisonment (§§ 1218, subd. (a) 

[fine], 1219, subd. (a) [imprisonment]) in order to exercise “the inherent 

power of the court to conduct the business of the court and enforce the lawful 

orders of the court” (Pacific Tel., at p. 372), but those powers do not 

transform a civil contempt proceeding into a criminal one.5 

“[W]here the object of the proceedings is to vindicate the dignity or 

authority of the court, they are regarded as criminal in character even though 

they arise from, or are ancillary to, a civil action.” (Morelli v. Superior Court

of Los Angeles County (1969) 1 Cal.3d 328, 333.) But where the purpose is “to 

protect and enforce the rights of private parties by compelling obedience to 

court orders and decrees, then the proceeding is said to be civil. [Citations.] 

5 Additionally, “[i]t has long been established that the Code of Civil 

Procedure contempt statute triggers neither a state constitutional nor 

statutory right to a jury trial.” (Mitchell, supra, 49 Cal.3d at p. 1240.) In 

contrast, “persons prosecuted for contempt under [Penal Code] section 166, 

which by its express terms is a misdemeanor, have a state constitutional and 

statutory right to a jury trial.” (Ibid.)
15

In other words criminal contempt punishes whereas civil contempt coerces.” 

(People v. Derner (1986) 182 Cal.App.3d 588, 592, citing Morelli, at p. 333.) 

Here, the motion for an OSC was brought under section 1209 based on 

allegations of repeated violations of discovery-related orders, and the order

was used to control the proceedings and coerce compliance with court orders. 

Accordingly, we view it as civil in nature and dependent upon the 

postjudgment proceedings. Under these circumstances, the contempt claim 

was not a proper basis for a malicious prosecution cause of action, and Kim 

therefore cannot demonstrate a probability of success.

Kim’s primary focus on appeal is that the court erred by applying an 

incorrect standard in determining that Kim failed to demonstrate a 

probability of success.6 This argument assumes an OSC re contempt 

provides a valid basis for a malicious prosecution action. Because we have 

determined that Kim fails to show a probability of success for a different 

6 We note that our denial of the motion to dismiss his appeal in 

R Consulting & Sales, Inc. v. Info Tech Corporation, et al., supra, D072492

based on the disentitlement doctrine does not operate as law of the case with 

respect to the probability of success of the OSC. The law of the case doctrine 

requires lower courts and subsequent appeals to adhere to a principle or rule 

of law necessary to a decision in an initial appeal. (See Griset v. Fair 

Political Practices Com. (2001) 25 Cal.4th 688, 701 [law of the case applies to 

later proceedings in same case].) The language in our earlier opinion must be 

understood in light of the facts and issues before us; our opinion is not 

authority for a proposition we did not consider. (See Hedwall v. PCMV, LLC 

(2018) 22 Cal.App.5th 564, 577, fn. 7.) Our earlier appellate opinion answers 

only the question of whether to apply the disentitlement doctrine, and we 

concluded that the facts of the case did not persuade us that it should apply. 

We made no findings of fact or determinations regarding whether defendants 

made a sufficient showing of probability of success in its motion for an OSC

regarding contempt in our earlier decision. 
16

reason—the defendants’ motion for an OSC re contempt does not form a basis 

for a malicious prosecution action—we do not reach this argument.

B. The Judgment in Favor of R Consulting and Michel

Having already reached our conclusion based on the legal issue, we do 

not need to reach the question of probability of success regarding any of the 

defendants. Were we to do so, we would nonetheless affirm the judgment 

against R Consulting and Michel because Kim failed to provide a complete 

record for us to review.

A fundamental rule of appellate review is that the trial court’s order or 

judgment is presumed to be correct. (Jameson v. Desta (2018) 5 Cal.5th 594, 

608-609; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 

956.) To overcome this presumption, the appellant bears the burden of 

providing an adequate record to affirmatively demonstrate error. (Foust v. 

San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181; 187; Sutter 

Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498 [incomplete 

record construed against appellant].) The failure to provide an adequate 

record makes it impossible to overcome the presumption of correctness 

necessary for reversal of the court’s order or judgment in favor of 

R Consulting and Michel. 

Although we review decisions regarding anti-SLAPP motions de novo

(Freeman, supra, 154 Cal.App.4th at p. 727), the absence of any underlying 

briefing and evidence including affidavits, means we cannot review the 

parties’ arguments or consider the evidence to determine probability of 

success. (See Equilon, supra, 294 Cal.4th at p. 67 [explaining the court 

considers the pleadings and the evidence in the second step of the antiSLAPP analysis]; see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 

Cal.App.4th 204, 212.) The failure to provide us with an adequate record of 
17

the issues on which review is sought requires us to resolve the issues against 

an appellant. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1296.) 

DISPOSITION

The judgments as to the law firm defendants, R Consulting, and Michel 

are affirmed. Parties to bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.