Filed 2/16/16 Roth v. Finestone CA2/7

Received for posting 2/17/16

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 SEVEN

STEVEN ROTH,

Plaintiff and Respondent,

v.

NEIL R. FINESTONE,

Defendant and Appellant.

 B258822

 (Los Angeles County

 Super. Ct. No. BC539135)

APPEAL from an order of the Superior Court of Los Angeles County, Rafael A. 

Ongkeko, Judge. Affirmed. 

Law Offices of Robert Epstein and Robert Epstein for Defendant and Appellant. 

Benedon & Serlin, Gerald M. Serlin and Wendy S. Albers for Plaintiff and 

Respondent. 

_______________________
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Code of Civil Procedure section 425.16, subdivision (f),

1

provides a special 

motion to strike a complaint pursuant to section 425.16, subdivision (b) (an anti-SLAPP 

motion) “may be filed within 60 days of the service of the complaint or, in the court’s 

discretion, at any later time upon terms it deems proper.” Neil R. Finestone contends the 

trial court abused its discretion in denying as untimely his special motion to strike Steven 

Roth’s complaint for tortious interference with contract, filed 103 days after service of 

the complaint. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Roth’s Complaint

On March 11, 2014 Roth, representing himself, filed an unverified complaint 

against Finestone, an insurance agent, and several Doe defendants alleging a single cause 

of action for tortious interference with contract. Roth’s complaint alleged he had been 

retained in October 2011 by Dr. Zein Obagi and his wife, Samar Obagi, to act as a 

consultant with their personal attorney regarding possible litigation relating to pension 

programs adopted by the Obagis’ corporations including insurance products sold by 

American General Life (AIG). The lawsuit, if pursued, would be predicated on claims 

that, through false and misleading representations, AIG, its agents and various promoters 

had sold the Obagis indexed universal life insurance policies with excessive and unduly 

expensive death benefits. Roth subsequently introduced the Obagis to litigation counsel, 

which they retained (the law firm of Engstrom, Lipscomb & Lack). Roth agreed to 

continue his consulting services with new counsel on a contingency fee basis and to 

forego unpaid hourly fees earned under the previous agreement (approximately $17,000).

Prior to retaining litigation counsel, the Obagis also hired Finestone to act as their 

insurance agent and to assist with the lawsuit, including mitigating their damages by 

reducing death benefits in the existing AIG policies as Roth had recommended. Roth 

alleged Finestone had been instructed to “run all ideas, intended actions and 

 

1

Statutory references are to this code unless otherwise indicated.
3

communications” relating to the Obagis, the pension plans, the AIG insurance policies 

and the contemplated lawsuit by Roth and the attorneys before doing anything. Rather 

than comply with these instructions, Finestone held private meetings with Samar Obagi

and would not disclose what was discussed. In addition, not only did Finestone fail to

reduce the death benefits in the Obagis’ AIG policies, as Roth had directed, but also he 

contacted AIG and proposed the purchase of additional products, thereby severely 

compromising the Obagis’ potential lawsuit. In December 2013, as a result of 

Finestone’s activities, the litigation firm terminated its representation of the Obagis. No 

lawsuit was thereafter filed against AIG.

The complaint alleged, as a direct result of Finestone’s actions, Roth had been

prevented from performing the consulting work he otherwise would have performed and 

from receiving at least $200,000 in compensation under the contingency fee agreement. 

(The agreement is not attached to the complaint.) He further alleged Finestone was 

aware of that contract and intentionally caused its breach. In addition, Roth alleged 

Finestone had acted for his own monetary gain and in conscious disregard of Roth’s 

rights with the intent to cause injury and harm to Roth, thereby entitling Roth to an award 

of punitive damages.

2. Finestone’s Answer and Roth’s Discovery Demands

A summons and complaint were personally served on Finestone on March 26, 

2014. Finestone, through counsel, filed an answer to the complaint containing a general 

denial and 12 affirmative defenses on April 24, 2014. On that same date Roth, still selfrepresented, began his discovery, propounding form interrogatories, document demands

and requests for admission. Roth also served deposition subpoenas and requests for 

production of documents on third parties. 

Finestone responded to discovery on May 28 and 29, 2014, asserting objections 

based on attorney-client privilege and the work-product doctrine to many of the requests. 

Roth disputed the applicability of the privilege (noting that he and Finestone had been 

working together with the lawyers), sent meet-and-confer letters and ultimately indicated 
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that, absent an agreement to provide what Roth considered to be proper responses and to 

extend the time to file discovery motions, he would formally move to compel discovery. 

No agreement was reached, and Roth moved to compel further discovery responses and 

documents from Finestone on July 9, 2014. Roth also moved to compel third-party 

discovery when meet-and-confer efforts proved unsuccessful with those individuals and 

their counsel. 

3. Finestone’s Special Motion To Strike and Request for Leave To File an 

Untimely Motion

On July 9, 2014 Finestone moved pursuant to section 425.16 to strike Roth’s 

complaint. The moving papers asserted Roth’s interference cause of action arose from 

protected activity within the meaning of section 425.15, subdivision (e)(2): “Finestone’s 

acts and communications were made in the context of the lawsuit Roth wanted the Obagis 

to bring against the [p]romoters and AIG.” Finestone also argued Roth could not meet 

his burden of showing a probability of success on the merits because the complaint was 

barred by Civil Code section 47, subdivision (b)’s litigation privilege; the contract with 

which Finestone had allegedly interfered was void because Roth did not have the type of 

insurance license required to perform the services specified; and claims alleging 

interference with civil litigation are not actionable. 

Recognizing that the motion was made more than 60 days after service of the 

complaint, Finestone requested the court exercise its discretion under section 425.16, 

subdivision (f), to permit the late filing. In the memorandum in support of the motion, 

Finestone’s counsel, Robert Epstein, stated the motion had been filed “as quickly as 

Finestone’s counsel could react given his availability and resources.” In his declaration, 

after describing Roth’s discovery demands and his meet-and-confer requests following 

responses from Finestone and the third parties served with deposition subpoenas

(including the Obagis), Epstein explained the timing of the motion: “[W]ell after

Mr. Finestone answered the Complaint, Mr. Roth’s abusive litigation tactics and rhetoric 

became habitual. I was inundated with numerous improper and burdensome discovery 

demands, including those directed to various third parties, all requiring my review. In my 
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entire career, I have never had occasion to file an anti-SLAPP motion. But I have never 

before been accosted by such spurious conduct as Mr. Roth’s in this matter. Although 

this motion could have been brought earlier, it is timely and necessary now. I wrestled 

with the concept of even engaging in such a protective action, but I can no longer provide 

sufficient counsel to my client in the face of a bombardment of violative discovery and 

threats of constant meritless motions, all contrived by Mr. Roth to intimidate and harass 

Mr. Finestone into paying money, regardless of Mr. Roth’s total lack of entitlement. 

Mr. Finestone and I are justifiably troubled that Mr. Roth will only continue to escalate 

the pace of his unsupportable demands, initiate more abusive discovery and bring more 

time wasting, meritless motions. Accordingly, Mr. Finestone respectfully requests that 

the Court allow the motion to be heard on the merits.” 

4. Roth’s Opposition and the Trial Court’s Ruling

Roth opposed Finestone’s motion, arguing the obligation to respond to properly 

served discovery does not justify the failure to timely file a special motion to strike. Roth 

further asserted, even if considered on the merits, Finestone’s motion should be denied 

because Roth’s claim for interference with contract did not arise from any protected 

speech or petitioning activity by Finestone and the declarations submitted by Roth and 

Steven Shuman, a member of the litigation firm that had been retained by the Obagis to 

pursue their claims against AIG, established a probability of prevailing on the merits of 

Roth’s interference claim. 

After hearing oral argument on August 21, 2014 the court, without reaching the 

merits, denied the motion as untimely, declining to permit the late-filed motion 

notwithstanding its discretion to do so under section 425.16, subdivision (f). In its order, 

which adopted its earlier posted tentative ruling, the court explained, “Where there is no 

compelling reason for a late-filed motion, the court, in its discretion may deny such a 

request. [Citation.] Giving due weight to the reasons given in the Epstein declaration for 

the late filing, moving party presents no such compelling reason for his failure to file an 

earlier motion . . . . Instead, this motion seems to have been brought within the context of 
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a flurry of discovery brought by plaintiff against third parties and the numerous motions 

to compel, improper reasons to bring an anti-SLAPP motion.”

Finestone filed a timely notice of appeal pursuant to sections 425.16, 

subdivision (i), and 904.1, subdivision (a)(13). (But see Hewlett-Packard Co. v. Oracle 

Corp. (2015) 239 Cal.App.4th 1174, 1186-1187 (Hewlett-Packard) [suggesting trial court 

should frame its order declining to hear a late-filed motion under section 425.16 as a 

denial of leave to file the motion or an order striking the motion as untimely and 

unsupported by sufficient cause to permit late filing, neither of which would be 

immediately appealable].)

DISCUSSION

1. The Record on Appeal Is Adequate

Finestone contends the order denying his special motion to strike as untimely 

demonstrates the court misunderstood the scope of its discretion under section 425.16, 

subdivision (f), requiring him to establish a “compelling reason” for not having filed the 

motion within 60 days of service of the complaint, and erroneously concluded that 

seeking protection from Roth’s abusive discovery tactics was not a proper purpose for 

filing the motion. Before addressing the merits of these arguments, Roth asserts the order 

should be affirmed because Finestone failed to provide as part of the record on appeal 

either a reporter’s transcript or an agreed or settled statement of the oral proceedings in 

the trial court, stating, with double emphasis, “Where, as here, the appellant is 

challenging a trial court order based on abuse of discretion, the appellant must provide a 

hearing transcript or suitable substitute to obtain a reversal.” 

Roth’s argument the order should be affirmed based on an inadequate appellate 

record wholly ignores California Rules of Court, rule 8.120(b), which requires a 

reporter’s transcript or agreed or settled statement on appeal only if “an appellant intends 

to raise any issue that requires consideration of the oral proceedings in the superior 

court . . . .” (See also Cal. Rules of Court, rule 8.130(a)(4) [appellant may “elect[] to 

proceed without a reporter’s transcript”].) Finestone does not contend anything said by 
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the court or the parties during the hearing on his special motion to strike, as opposed to 

the court’s actual ruling, is material to his argument the court abused its discretion in 

denying his motion as untimely. 

In addition, the meager authority cited by Roth for this somewhat startling 

proposition, not surprisingly, fails to support his argument. This court’s decision in 

Wagner v. Wagner (2008) 162 Cal.App.4th 249, explained we could not assess whether 

the trial court had abused its discretion in denying a motion under section 473, 

subdivision (b), to set aside an order settling a trust based on mistake or excusable neglect 

because the appellant had failed to provide either a copy of the court’s minute order 

denying the motion or a transcript of the hearing. (Wagner, at p. 259.) The notice of 

ruling that was part of the record on appeal did not disclose the court’s analysis of the 

motion or reason for denying it. (Ibid.) Similarly, the Eisenberg, Horvitz & Wiener 

practice guide cites our decision in Wagner for the unremarkable principle that an 

appellant “cannot obtain reversal of a trial court order on the basis of abuse of discretion 

when there is no record explaining what occurred at the underlying hearing or the trial 

court’s reasoning.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The 

Rutter Group 2015) ¶ 4.3.1, p. 4-2.) Neither our opinion nor the practice guide suggests a 

reporter’s transcript is an essential component of the record on appeal when, as here, the 

court’s reasoning is set forth in its minute order and none of the parties relies upon the 

oral argument before the trial court. 

To be sure, Presiding Justice Turner’s dissenting opinion in Chodos v. Cole (2012) 

210 Cal.App.4th 692, 707-709, the only other authority cited by Roth for this point, 

argued the section 425.16 orders then before Division Five of this court should be 

affirmed on the ground of an inadequate appellate record because no reporter’s transcript 

or settled statement had been provided. But the majority in the Chodos case expressly 

rejected that position, citing the governing rules of court and distinguishing cases where a 

transcript of the proceedings was truly necessary to review the trial court’s decision such 

as Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, which 
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challenged the trial court’s determination of the reasonableness of attorney fees incurred 

during trial. (Chodos, at pp. 699-700.)

Roth implicitly acknowledges the minute order indicates the grounds upon which 

the court declined to hear Finestone’s untimely motion but speculates the trial court also 

“may have based its decision on other factors or arguments which took place during the 

hearing on the motion.” That suggestion is belied by the court’s express adoption in its 

entirety of its earlier posted tentative ruling as its final order. In any event, Finestone 

limits his argument on appeal to the reasoning set forth in the minute order. The record 

on appeal is adequate for us to review that decision for abuse of discretion.

2. The Trial Court Acted Within Its Discretion in Denying Finestone’s Motion as 

Untimely 

a. Governing law

As discussed, section 425.16, subdivision (f), requires the filing of a special 

motion to strike a complaint pursuant to section 425.16, subdivision (b), within 60 days 

of the service of the complaint “or, in the court’s discretion, at any later time upon terms 

it deems proper.” “‘Discretion’ refers to a zone of latitude within which a trial court’s 

actions must be upheld on appeal.” (Hewlett-Packard, supra, 239 Cal.App.4th at 

p. 1187.) “‘“The appropriate test for abuse of discretion is whether the trial court 

exceeded the bounds of reason.”’” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339.)

“In determining whether to permit a late motion, the most important consideration 

is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits 

of covered lawsuits in the early stages of the proceedings. [Citations.] Other relevant 

factors include the length of the delay, the reasons for the late filing and any undue 

prejudice to the plaintiff.” (San Diegans for Open Government v. Har Construction, Inc.

(2015) 240 Cal.App.4th 611, 624.) “[A] claim that a trial court abused its discretion by 

failing to entertain a late anti-SLAPP motion requires the appellant to demonstrate that 

the trial court applied the statute in a manner that is incompatible either with the statute’s 

actual mandate, or with its ‘purposes and policy.’” (Hewlett-Packard, supra, 
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239 Cal.App.4th at p. 1188; accord, Olsen v. Harbison (2005) 134 Cal.App.4th 278, 

285.)

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Given the well-established purpose of section 425.16—to provide defendants with 

a special procedural device to allow the prompt evaluation and dismissal of meritless 

lawsuits that may chill speech and petition rights (Varian Medical Systems, Inc. v. 

Delfino (2005) 35 Cal.4th 180, 192; see Hewlett-Packard, supra, 239 Cal.App.4th at

p. 1188)—it is to be expected both that the trial court will frequently deny as untimely a 

late-filed motion and that such an exercise of its broad discretion will be upheld on 

appeal. (See, e.g., Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679, 681 [affirming 

trial court’s decision to deny as untimely motion filed “approximately six weeks after the 

60-day period expired”].)

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Indeed, in exercising its discretion the trial court “must be 

mindful that the 60-day deadline is the general rule. [Citation.] ‘[T]he Legislature’s act 

in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied 

to the fact that the statute contemplates that most such motions will be filed within 

60 days of the filing of the complaint.’ [Citation.] Thus, a ‘trial court must be wary 

about freely granting a party the right to file an anti-SLAPP motion past the 60-day 

deadline.’” (San Diegans for Open Government v. Har Construction, Inc., supra, 

240 Cal.App.4th at p. 624 [reversing trial court’s decision to permit late-filed motion]; 

see Hewlett-Packard, at p. 1189 [affirming trial court’s decision not to permit late-filed 

motion; by failing to act within the 60-day time limit, “a defendant incurs costs—and 

 

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 The trial court need not consider whether the motion has any merit in determining 

whether to permit it to be filed and heard after the 60-day time limit. (Chitsazzadeh v. 

Kramer & Kaslow (2011) 199 Cal.App.4th 676, 682; Morin v. Rosenthal (2004) 

122 Cal.App.4th 673, 681.) 

3

Finestone has cited no case, and we have found none, in which the appellate court 

reversed as an abuse of discretion the trial court’s decision to refuse to hear or to deny as 

untimely a special motion to strike filed after the 60-day time limit. (See HewlettPackard, supra, 239 Cal.App.4th at p. 1190 [“we are aware of no case holding that a trial 

court abused its discretion by denying an anti-SLAPP motion, or refusing to hear it, after 

the 60 days had passed”].)
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permits the plaintiff to incur costs—that a timely motion might be able to avert. As these 

costs accumulate in the course of conventional discovery and motion practice, the 

capacity of an anti-SLAPP motion to satisfy the statutory purpose diminishes”].) 

b. The trial court properly applied its broad discretion to deny Finestone’s 

late-filed motion 

Finestone’s primary argument on appeal is that the trial court misunderstood the 

scope of its discretion to permit a late-filed special motion to strike, requiring him to 

demonstrate a “compelling reason” for his delay. Finestone misconstrues the trial court’s 

order. Relying on language in Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 

772, 776, which held the trial court had abused its discretion in granting defendant’s 

application to file a late anti-SLAPP motion approximately two years after the statutory 

deadline,

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the trial court here ruled, “Where there is no compelling reason for a late-filed 

motion, the court, in its discretion may deny such a request.” That is, if a compelling 

justification has been presented, permission to file the motion late should normally be 

granted. In the absence of such a showing, however, the court has discretion to deny the 

motion as untimely if it believes its consideration of the motion on its merits will not

further the purposes of section 425.16. 

In this case, far from presenting a compelling explanation for not filing his motion 

in a timely manner, Finestone’s counsel readily conceded he could have met the statutory 

deadline. The record required that concession: Finestone answered the complaint within 

30 days of its service and responded to Roth’s initial discovery demands within the 60-

day time limit for filing a special motion to strike under section 425.16, subdivision (f). 

Although Finestone’s counsel explained why he elected to file the motion when he did—

a desire to put an end to what he viewed as abusive discovery—nothing prevented him 

 

4

In Platypus Wear, Inc. v. Goldberg, supra, 166 Cal.App.4th 772, the appellate 

court explained defendant Goldberg had not only failed to provide a compelling 

explanation for his two-year delay in filing an application for leave to file a late antiSLAPP motion, but also “did not articulate any extenuating circumstances justifying a 

late filing.” (Id. at p. 776.) 
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from filing his motion and triggering the automatic discovery stay under section 425.16, 

subdivision (g), as soon as Roth first served his purportedly burdensome interrogatories, 

document demands, requests for admission and third-party discovery. By delaying his 

motion and the concomitant discovery stay for an additional six weeks, Finestone 

unfairly permitted Roth to continue with the steps necessary to prepare the case for a 

more conventional disposition, attempting to resolve discovery disputes through the 

meet-and-confer process and, when that was unsuccessful, preparing and filing motions 

to compel. Although seeking to stay discovery while permitting the court to examine the 

merits of a lawsuit covered by section 425.16, subdivision (b), is not, in and of itself, an 

improper purpose for filing a special motion to strike, the trial court acted well within its 

discretion in concluding Finestone’s delay in doing so meant his late-filed motion could

not fulfill the statutory purpose. (See Hewlett-Packard, supra, 239 Cal.App.4th at

p. 1190 [“an anti-SLAPP motion cannot fulfill the statutory purpose, and may indeed 

subvert that purpose, if the parties have already incurred substantial expense preparing 

the case for a more conventional disposition”]; Platypus Wear, Inc. v. Goldberg, supra, 

166 Cal.App.4th at p. 783 [one purpose of the 60-day limitation is “‘to require 

presentation and resolution of the anti-SLAPP claim at the outset of the litigation before 

the parties have undertaken the expenses of litigation that begin to accrue after the 

pleading stage of the lawsuit’”]; see also San Diegans for Open Government v. Har 

Construction, Inc., supra, 240 Cal.App.4th at p. 624 [“[t]he statutory deadline also seeks 

‘“to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings”’”].)

3. Roth’s Motion for Sanctions Is Denied

Asserting Finestone’s appeal unquestionably lacks any merit and was taken solely 

for the improper purpose of harassment and delay, Roth has moved for an award of 

sanctions jointly against Finestone and his counsel Epstein, requesting $69,106.07 for his

attorney fees and costs in connection with the appeal. Pursuant to California Rules of 

Court, rule 8.276(d), we requested that Finestone and his counsel respond to the motion.
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Section 907 provides, “When it appears to the reviewing court that the appeal was 

frivolous or taken solely for delay, it may add to the costs on appeal such damages as 

may be just.” (See Cal. Rules of Court, rule 8.276(a)(1) [Court of Appeal may impose 

sanctions on a party or an attorney for taking a frivolous appeal or appealing solely to 

cause delay].) The Supreme Court in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 

650, set forth the applicable standard, “[A]n appeal should be held to be frivolous only 

when it is prosecuted for an improper motive—to harass the respondent or delay the 

effect of an adverse judgment—or when it indisputably has no merit—when any 

reasonable attorney would agree that the appeal is totally and completely without merit.”

Although we have affirmed the order denying Finestone’s special motion to strike 

as untimely, we cannot say, in light of the arguments presented, that the appeal was 

“totally and completely devoid of merit.” (In re Marriage of Flaherty, supra, 31 Cal.3d 

at pp. 650-651.) Nor does evidence exist that the appeal was brought for an improper 

motive to harass Roth or simply to delay proceedings in the trial court. The motion for 

sanctions is denied.

DISPOSITION

The order denying the special motion to strike is affirmed. Roth’s motion for 

sanctions for frivolous appeal is denied. Roth is to recover his costs on appeal.

PERLUSS, P. J.

We concur: 

SEGAL, J. BLUMENFELD, J.*

 

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.