Filed 6/1/23 Mink v. Moda CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

LYLE R. MINK et al.,

Cross-complainants and 

Respondents,

v.

KEVIN MODA,

Cross-defendant and 

Appellant. 

B313022

Los Angeles County

Super. Ct. No. 

19SMCV01498

APPEAL from an order of the Superior Court of Los 

Angeles County, H. Jay Ford III, Judge. Affirmed.

Bhola and Associates and Vip Bhola for Cross-Defendant

and Appellant.

Weiss & Zaman, Thomas J. Weiss and Shawn Zaman for 

Cross-Complainants and Respondents.
2

INTRODUCTION

Kevin Moda sued his former lawyer, and the lawyer’s law 

firm. The lawyer and his firm cross-complained for, among other 

things, unpaid fees. Moda now appeals from the trial court’s

order granting in part and denying in part Moda’s special motion 

to strike the cross-complaint under Code of Civil Procedure1

section 425.16 (i.e., an anti-SLAPP motion). For the reasons 

discussed below, we affirm. 

BACKGROUND

In October 2018, Moda signed an attorney-client fee 

contract with Lyle R. Mink and Lyle R. Mink, a Law Corporation 

(collectively, “Mink”), by which Moda retained Mink to represent

him and his two LLCs in Mazgani v. Moda, Case No. BC607465 

(the Mazgani action). The record reflects Mink represented Moda 

and his LLCs from October 2018 to August 2019.

In August 2019, Moda sued Mink for damages allegedly 

sustained as a result of Mink’s malfeasance and deficient 

representation in the Mazgani action and a related case.

2 Moda’s

operative complaint asserts Mink is liable for legal malpractice 

and breach of fiduciary duty.

In December 2020, Mink filed a cross-complaint against 

Moda, asserting claims for breach of contract (first cause of 

action) and quantum meruit (second cause of action). With 

respect to his breach of contract claim, Mink alleged “Moda 

1 All undesignated statutory references are to the Code of 

Civil Procedure. 

2 Moda also sued Kasey Diba and Finnigan and Diba, a Law 

Corporation. Neither defendant is a party this appeal. 
3

engaged in conduct that constituted a material breach of [the 

parties’ attorney-client fee] contract, a material failure of 

consideration (both current and prospective), and frustration of 

purpose . . . .” Specifically, in paragraph 14 of the cross-complaint 

(Paragraph 14),3 Mink alleged Moda failed to provide Mink with

necessary information; failed to be truthful with Mink; failed to 

keep Mink informed of important developments; hired another 

attorney to try the Mazgani action without Mink’s prior

knowledge or consent; substantially expanded the amount of 

work Moda wanted Mink to perform; failed to provide Mink with

evidence required for trial preparation; and presented Mink with 

“conflicting, impossible, [and] unethical” instructions and 

requests. Consequently, Mink alleged, Moda “caused Mink . . . to 

terminate his representation of Moda and the LLCs[,]” and 

“required Mink to make a motion to be relieved [as counsel] for 

the LLCs[,]” but “then opposed the motion for no legally 

cognizable reason.” Based on Moda’s alleged conduct, Mink’s first 

cause of action sought “at least $124,625” in damages.

In support of his quantum meruit claim, Mink realleged the 

allegations underlying his breach of contract claim. He then 

alleged: “Within the past two years, in Los Angeles California, 

Mink furnished work, labor[,] and professional services to Moda 

at his . . . special request. The reasonable value of the services 

that have not been paid for is at least $124,625. [¶] . . . This sum 

has not been paid notwithstanding that demand has been made 

therefor. There is now due and owing, and unpaid from Moda[,] 

the sum of $124,625 together with interest at the rate of 10% per 

annum thereon.”

3 Paragraph 14 consists of one primary paragraph followed 

by nine sub-paragraphs, labeled (a) through (i). 
4

Moda then filed his anti-SLAPP motion. He sought to strike

the cross-complaint in its entirety, and to recover attorneys’ fees 

and costs relating to his motion. 

The trial court heard Moda’s anti-SLAPP motion on April 

20, 2021, and took it under submission. Six days later, the court 

granted in part and denied in part Moda’s motion.

The trial court began its analysis by determining the 

allegations in Paragraph 14 demonstrated Mink’s breach of 

contract claim largely arises out of protected activity within the 

purview of section 425.16, subdivision (e). In so doing, it first

concluded “Moda’s filing of an opposition to Mink’s motion to be 

relieved as the LLC’s counsel qualifies as protected conduct 

under [section 425.16, subdivision] (e)(1).”

The trial court then determined Moda’s other alleged acts, 

described in Paragraph 14, constituted protected activity under 

section 425.16, subdivision (e)(2). On this point, the court

explained: “Mink alleges Moda breached the attorney-client fee 

agreement by engaging in certain conduct in connection with 

Mink’s defense of Moda in the Mazgani litigation. All of Moda’s 

alleged conduct (1) related to substantive issues under 

consideration or review by a judicial body, the Mazgani litigation 

(2) was directed to an interested person, i.e., Mink, who was 

counsel of record, and (3) arose out of the litigation, e.g.[,] failing 

to respond to demands for information from Mink for purposes of 

representing Moda in the Mazgani litigation, demanding that 

Mink file a motion for terminating sanctions in that litigation, 

demanding that Mink perform additional work on the litigation, 

giving instructions and making requests that were conflicting, 

impossible[,] or unethical in connection with that litigation[,] and 

hiring additional counsel without consulting Mink.”
5

Subsequently, the trial court determined that, in addition 

to the conduct described in Paragraph 14, Mink’s cross-complaint 

and his opposition to Moda’s motion reflected his breach of 

contract claim “is [also] based in part on Moda’s failure to pay 

Mink’s fees.” It held that “Moda’s failure to pay Mink’s fees

[owed] under the attorney-client fee agreement does not qualify 

as protected conduct under either [section 425.16, subdivision] 

(e)(1) or (e)(2)[,]” because: “Failure to pay fees is not a statement 

before a judicial body, nor [is] it conduct in connection with an 

issue under consideration by a judicial body. The Mazgani 

litigation had nothing to do with whether Mink was entitled to 

payment for his services therein.” 

Accordingly, in applying the second prong of the antiSLAPP statute to Mink’s first cause of action, the trial court

considered whether Mink made a prima facie showing of facts to 

sustain a favorable judgment for breach of contract based on the 

conduct alleged in Paragraph 14 that the court had found to be 

protected activity. It concluded Mink failed to meet his burden

and granted the anti-SLAPP motion with respect to those aspects 

of the claim. The court denied the motion, however, to the extent 

Mink’s first cause of action was based on Moda’s failure to pay 

Mink’s fees.

Turning to the second cause of action, the trial court 

determined “Moda fail[ed] to establish that [Mink’s claim] for 

quantum meruit arises from protected conduct.” In so doing, the 

trial court concluded Mink’s incorporation of Paragraph 14 into 

the second cause of action did not establish the claim arose from 

the acts alleged therein. In support of this conclusion, the court 

explained: “None of the acts alleged in [Paragraph] 14 supply an 

element of the quantum meruit claim, which is based on 
6

nonpayment of fees in contravention of Moda’s allege[d] promise 

to pay Mink for legal services rendered.” Therefore, the trial court 

denied the anti-SLAPP motion with respect to Mink’s second

cause of action.

Finally, “[i]n light of Moda’s substantial, but not complete 

success [on his anti-SLAPP motion],” the trial court awarded 

Moda $10,594 in attorneys’ fees and costs. 

DISCUSSION

I. Governing Principles and Standard of Review 

“We review de novo a trial court’s decision on an antiSLAPP motion. [Citation.] The anti-SLAPP statute requires a 

two-step process: ‘At the first step, the moving defendant bears 

the burden of identifying all allegations of protected activity, and 

the claims for relief supported by them. . . . If the court 

determines that relief is sought based on allegations arising from 

activity protected by the statute, the second step is reached. 

There, the burden shifts to the plaintiff to demonstrate that each 

challenged claim based on protected activity is legally sufficient 

and factually substantiated. The court, without resolving 

evidentiary conflicts, must determine whether the plaintiff’s 

showing, if accepted by the trier of fact, would be sufficient to 

sustain a favorable judgment. If not, the claim is stricken.’

[Citation.] In making these determinations the court considers 

‘the pleadings, and supporting and opposing affidavits stating the 

facts upon which the liability or defense is based.’” (Briganti v. 

Chow (2019) 42 Cal.App.5th 504, 508.)

A moving defendant satisfies his or her burden under the 

first prong of the anti-SLAPP statute by “‘demonstrating that the 

act underlying the plaintiff’s cause fits one of the categories 
7

spelled out in section 425.16, subdivision (e)[.]’” (Navellier v. 

Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) That statute defines 

protected activities as: “(1) any written or oral statement or 

writing made before a legislative, executive, or judicial 

proceeding, or any other official proceeding authorized by law, (2) 

any written or oral statement or writing made in connection with 

an issue under consideration or review by a legislative, executive, 

or judicial body, or any other official proceeding authorized by 

law, (3) any written or oral statement or writing made in a place 

open to the public or a public forum in connection with an issue of 

public interest, (4) any other conduct in furtherance of the 

exercise of the constitutional right of petition or the 

constitutional right of free speech in connection with a public 

issue or an issue of public interest.” (§ 425.16, subd. (e).)

For purposes of the anti-SLAPP statute’s first prong, “the 

critical consideration is whether the cause of action is based on 

the defendant’s protected free speech or petition activity.” 

(Navellier, supra, 29 Cal.4th at p. 89, original italics.) “To 

determine whether a claim arises from protected activity, courts 

must ‘consider the elements of the challenged claim and what 

actions by the defendant supply those elements and consequently 

form the basis for liability.’” (Wilson v. Cable News Network, Inc. 

(2019) 7 Cal.5th 871, 884 (Wilson).)

II. Analysis

Moda contends the trial court erred by denying his antiSLAPP motion with respect to Mink’s second cause of action. 

Although not entirely clear, he appears to raise two arguments in 

support of his position. We address each in turn.

First, Moda argues that by concluding Mink’s quantum 

meruit claim is not covered by the anti-SLAPP statute, the trial 
8

court erroneously “carved out an exception to applying the antiSLAPP statute[ to] attorneys’ lawsuits against their former 

clients for fees.” Mink responds that rather than creating an 

exception to the anti-SLAPP statute, the trial court correctly 

applied the law to conclude his quantum meruit claim “is not one 

arising from protected activity.” As discussed below, we agree 

with Mink. 

As an initial matter, we note Moda’s contention is

unsupported by citations to pertinent legal authority or reasoned 

argument clearly explaining why reversal is required based on 

his cursory assertion of error. Under these circumstances, we 

conclude he has forfeited his argument. (Benach v. County of Los 

Angeles (2007) 149 Cal.App.4th 836, 852 [points of error raised 

but unsupported by reasoned argument and citations to legal 

authority may be treated as forfeited].) 

In any event, the argument is meritless. The trial court did 

not—as Moda suggests—conclude the anti-SLAPP statute never 

applies to lawsuits by attorneys seeking fees from former clients.

Instead, the court denied Moda’s motion with respect to Mink’s 

second cause of action because it determined “Moda fail[ed] to 

establish that [the claim] arises from protected conduct under 

[section 425.16, subdivision (e)].” In so doing, the court applied 

well-settled legal principles governing the first prong of the antiSLAPP statute, and ultimately concluded: (1) the conduct 

forming the basis of Mink’s quantum meruit claim is Moda’s 

failure to pay fees for legal services furnished by Mink at Moda’s 

request; (2) “[n]one of the acts alleged in [Paragraph] 14 supply 

an element of the quantum meruit claim[ ]”; and (3) Moda’s 

failure to pay fees for services rendered is not protected activity

under section 425.16, subdivision (e). 
9

Next, Moda appears to contend the trial court erred by 

concluding Mink’s quantum meruit claim does not arise out of the 

same protected activity underlying his breach of contract claim.

In support of his argument, Moda emphasizes Mink incorporated 

paragraphs 1 through 15 of the cross-complaint into his second 

cause of action.

Moda’s argument is unavailing. Having reviewed the 

record, we agree with the trial court that although the second 

cause action incorporates by reference all the allegations in 

support of Mink’s first cause of action, the cross-complaint 

unambiguously reflects Mink’s quantum meruit claim is based on 

Moda’s alleged failure to compensate Mink for legal services 

performed at Moda’s request. As the trial court observed: 

“Quantum meruit refers to the well-established principle that 

‘the law implies a promise to pay for services performed under 

circumstances disclosing that they were not gratuitously 

rendered. [Citation.] To recover in quantum meruit, a party need 

not prove the existence of a contract [citations], but it must show 

the circumstances were such that ‘the services were rendered 

under some understanding or expectation of both parties that 

compensation therefor was to be made’ [citations].” (Huskinson & 

Brown v. Wolf (2004) 32 Cal.4th 453, 458.) Moda has not 

explained—and we fail to see—how the alleged conduct supplying 

the elements of this claim (i.e., his failure to pay Mink for 

services rendered) is “protected free speech or petitioning 

activity[ ]” (Navellier, supra, 29 Cal.4th at p. 89), which “‘fits one 

of the categories spelled out in section 425.16, subdivision (e)[.]’” 

(Id. at p. 88; see also Wilson, supra, 7 Cal.5th at p. 884.) 

In sum, for the reasons discussed above, Moda has not 

demonstrated the trial court erred by determining he failed to 
10

show Mink’s second cause of action arises out of protected 

activity. Accordingly, we conclude the trial court correctly denied 

Moda’s anti-SLAPP motion with respect to that claim.

4

4 In light of this conclusion, we need not address Moda’s

contentions appearing to assert Mink failed to satisfy his burden 

on the second prong of the anti-SLAPP statute with respect to the 

second cause of action. (Navellier, supra, 29 Cal.4th at p. 89 

[“Only a cause of action that satisfies both prongs of the antiSLAPP statute—i.e., that arises from protected speech or 

petitioning and lacks even minimal merit—is a SLAPP, subject to 

being stricken under the statute” (original italics)].) In addition, 

we decline to address Moda’s argument, raised for the first time 

in his reply brief, that the entire cross-complaint should be 

stricken “as senseless gamesmanship.” (See Reichardt v. Hoffman 

(1997) 52 Cal.App.4th 754, 764 [in general, points raised for the 

first time in a reply brief will not be considered].) 
11

DISPOSITION

The order is affirmed. Respondents shall recover their costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, Acting P. J.

We concur: 

COLLINS, J.

ZUKIN, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to Article VI, section 6, of the California 

Constitution.