Filed 6/1/ 23 Mink v. Moda CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION FOUR

LYLE R. MINK et al.,

Cross

- c omplainants and Respondents

,

v.
KEVIN MODA,

Cross

- d efendant and Appellant. B 313022

Los Angeles County Super. Ct. No. 19SMCV01 498

APPEAL from a n 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 Respondent s

.2 INTRODUCTION

Kevin Moda sued his former lawyer, and the lawyer’s law firm. The lawyer and his firm cross

- c omplained 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 Procedure 1 section 425.16 (i.e., an anti

- SLAPP motio n). For the reasons discussed below, w e 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 201 8 to August 20 19

. 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 leg al 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

. N either defendant is a part y 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 ( Paragra ph 14), 3 Mink alleged Moda fail ed to provide Mink with

necessary information; fail ed to be truthful with Mink ; fail ed to keep Mink informed of important developments; hir ed another attorney to try the Mazgani action without Mink’s prior knowledge or conse nt ; substantially exp a n ded the amount of
work Moda wanted Mink to perform ; fail ed to provide Mink with
evidenc e required for trial preparation ; and presented M ink 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 Lo s 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

gran ted in part and den ied in part Moda’s motion.
The tria l court began its analysis by determin ing the allegations in Paragraph 14 demonstrated Mink’s breach of contract claim largely ar ises 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

, constitu ted 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 litig ation. 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 litiga tion, e.g. [,] failing to respond to demands for information from Mink f or 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 o n 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, t he trial court determined that, in addi tion
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 ther ein.” Accordingly, in a pplying the second prong of the anti

SLAPP 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 o n the
cond uct 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, t he court explained: “None of the acts alleged in [Paragraph ] 14 supply an element of the quantum meruit claim, which is based on6

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 anti

SLAPP 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 rel ief supported by them. . . . If the court
determines th at 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 Ca l.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 categories7

spelled out in section 425.16, subdivision (e)[.]’” ( Navellier v.
Sletten (2002) 29 Cal.4th 82, 88 ( Navellier ) .) Th at statut e defines protected activities as: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other officia l 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 o r oral statement o r 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 fre e speech in connection with a public issue or an issue of public interest.” (§ 425.1 6 , 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

Mod a contends the trial court erred by denying his anti

SLAPP motion with respect to Mink’s second cause of action

. Although not entirely clear, h e appears to raise two arguments in support of his position. We address each in turn. First, Moda argue s that by c oncluding Mink’s quantum
meruit claim is not covered by the anti

- SLAPP statute, the trial8

court erroneously “carved out an exception to applying the anti

SLAPP statute [ to] attorneys’ lawsuits against their former
clients for fees.” Mink responds that rath er 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, w e agree with Min k. As an initial matter, we note Mod a’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

— a s Moda suggest s

— conclude the anti

- SLAPP statute never appl ies 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 anti

SLAPP statute , and ultimately concluded : (1) the conduct forming th e 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 d oes not arise out of the

same prot ected activity underlying his breach of contract claim. In support of his argument, Moda emphasizes Mink incorporated

p aragraphs 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

supp ort of Mink’s first cause of actio n , 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 ser vices 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 servic es 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 supp lying 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 faile d to10

show Mink’s second cause of action arises out of protected activity. A ccordingly, 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 satisf y his burden on the second prong of th e 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 anti

SLAPP statute

— i.e., that arises from protected speech or petitioning and lacks even mini mal 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 game smanship

. ” (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [ in general, p oints 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.