Filed 4/28/23 Ryckman v. Drexler CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GERALD OWEN RYCKMAN et al.,

Plaintiffs and Appellants,

v.

DAVID DREXLER et al.,

Defendants and Respondents.

 B319664

 (Los Angeles County

 Super. Ct. No. 21STCV22674)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Malcolm Mackey, Judge. Affirmed.

Gerald Owen Ryckman and Judith Lorraine Ryckman, in 

pro. per., for Plaintiffs and Appellants.

Schwimer Weinstein, Mitchell E. Rosensweig and Michael 

E. Schwimer for Defendants and Respondents.

____________________
2

This appeal arises out of a series of legal disputes that 

began with a disagreement concerning the ownership of an office 

building. In November 2015, respondents David Drexler and 

Laura Drexler (as trustees of the Drexler Trust dated June 24, 

1994) sued appellants Gerald Owen Ryckman and Judith 

Lorraine Ryckman (as trustees of the Ryckman Trust dated 

October 10, 1990) for partition of the real estate in Los Angeles 

County Superior Court case No. LC103510 (the partition action). 

During the partition action, the court imposed evidentiary 

sanctions on the Ryckmans for non-compliance with discovery 

obligations.

On June 17, 2021, the Ryckmans (individually and as 

trustees of the Ryckman Trust) filed a complaint against the 

Drexlers (individually and as trustees of the Drexler Trust), the 

Law Offices of David Drexler, and Michael Schwimer, who was

the attorney representing the Drexlers in the partition action

(collectively, Defendants).

1 The sole relief the Ryckmans sought 

in this new action (the secondary action) was that the trial court 

“not consider or enforce” the evidentiary sanctions orders entered 

in the pending partition action because the orders were allegedly 

obtained through fraud and void.

Defendants filed special motions to strike the complaint in 

the secondary action pursuant to the anti-SLAPP provisions of

1 The Ryckmans filed other litigation as well, including four 

appeals and four writ petitions. As those other matters are not 

pertinent to the resolution of this appeal, we do not summarize 

them and confine our recitation of facts only to what is necessary

for this appeal.
3

Code of Civil Procedure section 425.16.2 Within days of filing 

their oppositions to the special motions to strike, the Ryckmans 

voluntarily dismissed the secondary action. Defendants 

thereafter moved for attorney fees and costs as prevailing 

defendants under section 425.16, subdivision (c). The Ryckmans 

did not oppose the fee motions, nor did they appear at the 

hearing on the motions. The trial court granted fees and costs to 

the Drexlers and Schwimer in the amounts of $29,727.55 and 

$21,601.30, respectively. It thereafter entered judgment stating 

Defendants’ special motions to strike were meritorious, awarding 

$29,727.55 to the Drexlers and $21,601.30 to Schwimer, and 

concluding that the Ryckmans were to take nothing on their 

complaint against Defendants.

The Ryckmans now appeal, contending their voluntary 

dismissal of the secondary action deprived the trial court of 

jurisdiction to enter a judgment awarding attorney fees and costs. 

They further argue the trial court erred in awarding fees and 

costs to Defendants because it failed to first rule on the special 

motions to strike.

We affirm. A trial court retains jurisdiction following a 

dismissal to rule on motions for attorney fees and costs, and the 

Ryckmans have demonstrated no error in the trial court’s ruling

awarding fees. It is well established that we presume the 

correctness of the trial court’s orders, including that the trial 

2 All unspecified statutory references are to the Code of 

Civil Procedure. SLAPP is an acronym for “strategic lawsuit 

against public participation.” (Equilon Enterprises v. Consumer 

Cause, Inc. (2002) 29 Cal.4th 53, 57.) We also refer to a “SLAPP” 

or “anti-SLAPP” motion as “a special motion to strike”—the 

language used in the statute (§ 425.16, subd. (b)(1)).
4

court knew and applied the correct standard, and that it is 

appellants’ burden to overcome this presumption on appeal. The 

Ryckmans have not done so on the record before us, and did not 

adduce below any evidence demonstrating the sanctions orders 

were obtained through fraud or were void or demonstrating any

reversible error in the award of fees and costs.

BACKGROUND

A. Factual Summary

On November 2, 2015, the Drexlers, as trustees of the 

Drexler Trust, filed a verified complaint against the Ryckmans, 

as trustees of the Ryckman Trust, for partition and recovery of 

monies relating to an office building for which each of the two 

trusts were on title.3 On March 14, 2016, the Ryckmans crosscomplained.

On April 28, 2017, the trial court, Judge Frank J. Johnson 

presiding, granted the Drexlers evidentiary sanctions against the 

Ryckmans for the Ryckmans’ failure to provide satisfactory, 

court-ordered discovery responses to certain interrogatories. The 

trial court’s minute order provided, “The [c]ourt notes that [the 

Ryckmans] were previously . . . ordered to provide further 

responses to [s]pecial [i]nterrogatories 5, 8, 9, 10, 11, 14, 15, 20, 

21, 23 and 24. It appears that the response[s] produced pursuant 

to the order were the same as previously produced but without 

objections. The interrogatories ask for facts. [The Ryckmans] 

maintain[ ] that they have no[ ] supporting facts and all 

supporting material is with the [Drexlers]. [¶] The [o]pposition 

3 On December 3, 2015, the Drexlers amended their 

complaint to delete the phrase “notified defendants of the 

appraisal and.”
5

is odd in that [the Ryckmans’] assertion that all facts are with 

the [Drexlers] implies that [the Ryckmans] have no facts or 

evidence to support their position. [¶] The [c]ourt hears further 

argument. The [c]ourt tries to impress upon the [Ryckmans] that 

the [Drexlers] will not prove their case for them. [The Ryckmans] 

still insist that they have no recollection or records to support 

their position. However, if there are no facts the proper response 

is to document efforts to comply and why compliance is not 

possible. [The Ryckmans] did not do this and are technically in 

violation of the discovery order. [The Ryckmans] must provide 

facts to support their position, not allegations. [¶] The [c]ourt 

will not award terminating sanctions, but will grant what 

amount to evidentiary sanctions. As to the 11 special 

interrogatories, [the Ryckmans] are bound by the responses 

provided. Practically, this means that, at least as to the 11 

special interrogatories above, that [the Ryckmans] are bound by 

the position that they have no evidence or supporting facts. [The 

Ryckmans] will not be permitted to ‘find’ evidence for trial at a 

later date. [¶] Counsel for the moving party is to prepare and 

submit an[ ] order for the [c]ourt’s signature.” The record does 

not include a transcript of the April 28, 2017 hearing.

On May 25 and 26, 2017, the trial court executed and 

entered the sanctions orders prepared by the Drexlers. The 

orders prohibited the Ryckmans from introducing evidence at 

trial beyond what was stated in their deficient discovery 

responses, including evidence that the Ryckmans were “owed or 

entitled to any rents or profits produced by the [p]roperty” (the 

rents and profits provision).

Nearly two years later, on March 22, 2019, the Ryckmans 

filed a motion in the partition action to strike the rents and 
6

profits provision of the sanctions orders. The Ryckmans claimed 

the trial court’s minute order following the April 28, 2017 hearing 

did not state they could not present evidence of rents or profits 

due to them, that none of the 11 interrogatories related to the 

Ryckmans’ entitlement to rents and profits, and that Schwimer 

improperly “slipped in” reference to such rents or profits into the 

sanctions orders.

On April 16, 2019, Judge Johnson issued a minute order 

observing the trial court “fully considered the arguments of all 

parties, both written and oral, as well as the evidence presented,” 

and denied the Ryckmans’ motion to strike. A transcript of this 

hearing is not included in the record.

On or about September 24, 2019, the Ryckmans filed a 

motion in the partition action to “vacate” the sanctions orders. 

The Ryckmans argued the sanctions orders were “forged,” 

obtained by extrinsic fraud, and void. They argued, “A simple 

side by side comparison of the [c]ourt’s [m]inute [o]rder (Exhibit[ 

]A) and the [o]rder forged by Schwimer (Exhibit[ ]B) is all that is 

required to determine the invalidity of Schwimer’s forged order.” 

They concluded, “Schwimer committed[ ] multiple felonies, by 

forging into the [sanctions o]rders, at the very, very end, the 

following 14 words[,] ‘or is owed or entitled to any rents or profits 

produced by the [p]roperty[.’] ” (Italics and bold omitted.)

On October 18, 2019, the trial court, Judge Shirley K. 

Watkins presiding, issued a written ruling denying the 

Ryckmans’ motion. The trial court found, inter alia, that the 

Ryckmans “failed to establish that the [sanctions o]rders are void 

on [their] face.” The trial court also observed, “While it is true 

that those specific words do not appear in the minutes, the 

purpose of having the court sign an order is to state with 
7

specificity what the court orders. It is common that not every 

single statement made by the court does not appear in the 

minutes of the court.” The trial court further observed that

Judge Johnson had an opportunity to strike the offending 

language if it did not accurately reflect his intent when the 

Ryckmans brought their March 22, 2019 motion to strike, and 

Judge Johnson declined to do so.

On August 14, 2019, the Drexlers filed a motion in limine 

in the partition action to exclude evidence at trial pursuant to the 

sanctions orders, which the parties referred to as amended 

motion in limine No. 8.

On June 18, 2021, the trial court granted the Drexlers’

amended motion in limine No. 8. It found “the May 25, 2017 and 

May 26, 2017 orders are valid and will be enforced. This [c]ourt 

has looked at the court records and the orders were signed and 

entered properly and they remain in effect. They are valid court 

orders and there does not appear to be any impropriety by 

counsel.”

On September 17, 2021, the trial court entered judgment 

on the Drexlers’ cause of action for partition in their favor. It 

also entered judgment against the Ryckmans on their cross claim 

for partition. At the time the Ryckmans filed the record in the 

instant appeal, the parties were scheduled to begin a jury trial on 

the remaining causes of action on March 14, 2023.

B. Procedural History of the Instant Matter

On June 17, 2021, one day prior to the hearing scheduled 

for amended motion in limine No. 8, the Ryckmans initiated the 

secondary action by filing a complaint against Defendants. The 

Ryckmans purported to bring an “independent action in equity” 

by which they sought to “preclude enforcement of the void 
8

portion” of the sanctions orders and requested the trial court “not 

consider or enforce” the sanctions orders.

4

On July 20, 2021, the Drexlers and Schwimer filed a 

motion to declare the Ryckmans vexatious litigants.

On July 23, 2021, the Drexlers and Schwimer filed special 

motions to strike the complaint in the secondary action pursuant 

to section 425.16.

On August 2, 2021, the Ryckmans filed an ex parte 

application requesting, inter alia, that the trial court strike the 

Drexlers’ and Schwimer’s anti-SLAPP and vexatious litigant 

motions. The Ryckmans argued the Drexlers and Schwimer filed 

their motions to avoid depositions and a finding that the 

sanctions orders were void because they were “forged.” They 

further argued they could bring an independent action in equity 

to attack a void order.

On August 3, 2021, Defendants filed their opposition to the 

Ryckmans’ ex parte application, and the Ryckmans filed their 

oppositions to the special motions to strike. The Ryckmans

argued Defendants could not use a special motion to strike to 

attack an “independent action in equity” brought to challenge a 

void order.

4 According to the register of actions for the secondary 

action, on June 17, 2021, the Ryckmans also filed a notice of 

related case. On June 21, 2021, the register of actions stated, 

“Updated—Notice of Related Case . . . [a]s [t]o [p]arties: 

removed.” On September 21, 2021, in the partition action, the 

Drexlers filed a notice of related case. On September 22, 2021, 

the trial courts in the partition and secondary actions issued 

orders denying a notice of related case, but it is not clear to which 

notice these denials applied.
9

On August 5, 2021, the trial court denied the Ryckmans’ ex 

parte application.

On August 6, 2021, the Ryckmans requested and were 

granted dismissal of the entire secondary action without 

prejudice.5

On August 9, 2021, Defendants filed their reply briefs in 

support of their special motions to strike. They argued, 

“Although the Ryckmans’ voluntary dismissal of this action has 

deprived the [c]ourt of jurisdiction to rule on this motion, the 

[c]ourt nonetheless retains jurisdiction to award . . . attorney[ ] 

fees and costs incurred in bringing this motion. . . . By virtue of 

the Ryckmans[’] dismissal of this action, [Defendants] are 

presumed to have prevailed on this motion for the purpose of 

determining their entitlement to fees and costs under the antiSLAPP statute.”

On October 5, 2021, the Drexlers and Schwimer6 filed 

motions for “entry of judgment and award of prevailing party 

anti-SLAPP attorney[ ] fees” in the amounts of $29,727.55 and 

$21,601.30, respectively, under section 425.16, subdivision (c). In 

their motions, Defendants recounted the Ryckmans multiple 

unsuccessful attempts to undo the sanctions orders. Relying on a 

standard articulated in Coltrain v. Shewalter (1998) 66 

Cal.App.4th 94, Defendants argued they prevailed because, “The 

goal of [Defendants’] anti-SLAPP [m]otion[s] was to obtain the 

5 The Ryckmans filed another request for dismissal on 

August 9, 2021.

6 The Drexlers’ motion does not appear to be brought on 

behalf of the Law Offices of David Drexler, which is also not 

included in the judgment entered thereafter.
10

dismissal of this action. That end has now been achieved. 

Conversely, the Ryckmans’ goal in bringing this action was to 

collaterally attack the [s]anctions [o]rders so that they could not 

be used against them at trial. To that end, the Ryckmans have 

failed not only because they dismissed this action, but because 

trial of the partition claims in the [partition a]ction has been 

held, and judgment entered against them therein.”7

The Ryckmans did not file an opposition to Defendants’ 

attorney fees motions. On January 24, 2022, Defendants filed 

replies in support of their motions for attorney fees and entry of 

judgment.

On January 31, 2022, Defendants appeared for the hearing 

on their motions for fees. The Ryckmans did not appear. The 

trial court granted the Drexlers’ and Schwimer’s motions. In its 

minute order, the trial court acknowledged, “ ‘ “[A] defendant who 

is voluntarily dismissed . . . after filing an [anti-SLAPP motion],

is nevertheless entitled to have the merits of such motion heard 

as a predicate to a determination of the defendant’s motion for 

attorney’s fees and costs.” ’ [Citation.]” It also observed a 

prevailing defendant is entitled to mandatory, reasonable fees 

and costs and that the trial court had no obligation to advance 

arguments on behalf of a party after the party fails to file a 

proper and timely opposition.

On February 4, 2022, Defendants lodged a proposed 

judgment with the trial court. It stated, inter alia, “The court 

finds that defendants David Drexler[ ] and Laura Drexler’s 

7 On October 14, 2021, the trial court denied Defendants’ 

motion to have the Ryckmans declared vexatious litigants. The 

Ryckmans did not appear at the hearing.
11

[s]pecial [m]otion to [s]trike is meritorious and that defendants 

David Drexler and Laura Drexler are ‘prevailing parties’ and 

entitled to attorneys’ fees pursuant to [section] 425.16[, 

subdivision ](c). The court likewise finds that defendant Michael 

Schwimer’s [s]pecial [m]otion to [s]trike is meritorious and that 

defendant Michael Schwimer is a ‘prevailing party’ and entitled 

to attorneys’ fees pursuant to [section] 425.16[, subdivision ](c).” 

The proposed judgment also decreed that judgment on the 

Ryckmans’ complaint in the secondary action was granted in 

favor of Defendants; that the Ryckmans and their trust shall take 

nothing on their complaint against Defendants; that the 

Ryckmans were ordered to pay $29,727.55 (plus interest) to the 

Drexlers as prevailing party attorney fees under section 425.16, 

subdivision (c); and that the Ryckmans and their trust were 

ordered to pay $21,601.30 (plus interest) to Schwimer as 

prevailing party attorney fees under section 425.16, subdivision 

(c).

On February 14, 2022, the Ryckmans objected to the 

proposed judgment. They contended the trial court was without 

jurisdiction to grant Defendants’ fee motions because, inter alia,

Defendants “abandoned” their special motions to strike and the 

trial court did not hold a hearing on the motions. On 

February 22, 2022, the trial court issued a minute order stating it 

reviewed the Ryckmans’ objections and entered the judgment 

over those objections.

The Ryckmans timely appealed.

DISCUSSION

The Ryckmans argue the trial court lacked jurisdiction to 

enter a judgment awarding attorney fees to Defendants because 

the Ryckmans voluntarily dismissed the secondary action prior to 
12

the hearing on the special motions to strike and motions for 

attorney fees. They also argue the trial court erred in granting 

Defendants’ motions for attorney fees without first ruling on the 

merits of the special motions to strike.

A. The Trial Court Did Not Lack Jurisdiction to Rule on 

the Anti-SLAPP or Attorney Fees Motions and Enter 

Judgment

It is well established that “[u]pon the proper filing of a 

request to voluntarily dismiss a matter, the trial court loses 

jurisdiction to act in the case, ‘except for the limited purpose of 

awarding costs and statutory attorney fees.’ ” (Law Offices of 

Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876; see 

Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 

1456 [observing “[n]umerous courts have agreed . . . that a trial 

court retains jurisdiction to award attorney fees pursuant to 

[§] 425.16, [subd.] (c)(1) after a plaintiff voluntarily dismisses its 

complaint while a special motion to strike is pending” and listing 

cases].) A majority of appellate courts have held that 

notwithstanding a voluntary dismissal, a trial court must 

determine the merits of a special motion to strike as a predicate 

to awarding fees and costs under section 425.16. subdivision (c). 

(Liu v. Moore (1999) 69 Cal.App.4th 745, 751-752 [remanding, in 

a matter where the plaintiff voluntarily dismissed the defendant,

for a determination of the defendant’s § 425.16 special motion to 

strike as a predicate to awarding fees and costs]; accord, Catlin 

Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 

Cal.App.5th 764, 775, fn. 5 [“agree[ing] . . . that a ruling on the 

merits of an anti-SLAPP motion is required as a predicate to an 

award of fees under [§] 425.16, [subd.] (c), provided that, as we 

hold in this case, a timely fees motion is filed”]; Tourgeman v. 
13

Nelson & Kennard, supra, 222 Cal.App.4th at pp. 1457-1458 

[remanding for a determination on the merits of the defendant’s 

special motion to strike, notwithstanding the plaintiff’s voluntary 

dismissal, as a predicate to awarding fees]; Pfeiffer Venice 

Properties v. Bernard (2002) 101 Cal.App.4th 211, 218

[concluding the trial court erred in finding it lacked jurisdiction 

to hear a § 425.16, subd. (c) motion for attorney fees following 

dismissal and remanding for a hearing on the special motion to 

strike]; but see Coltrain v. Shewalter, supra, 66 Cal.App.4th at 

p. 107 [stating that in determining whether a defendant is a 

prevailing party under § 425.16, subd. (c), “the critical issue is 

which party realized its objectives in the litigation”].)

As the above cases demonstrate, because a finding on the 

merits of a special motion to strike is a necessary predicate to 

awarding section 425.16, subdivision (c) fees, the trial court 

retained jurisdiction not only to determine Defendants’ motions 

for attorney fees, but also to determine the merits of the antiSLAPP motions as a prerequisite to awarding fees. The 

Ryckmans have not presented any authority or argument why a 

trial court cannot then enter judgment reflecting its rulings on 

these issues for which it retained limited jurisdiction.

B. The Ryckmans Have Not Demonstrated Prejudicial 

Error

“ ‘A judgment or order of the lower court is presumed 

correct. All intendments and presumptions are indulged to 

support it on matters as to which the record is silent, and error 

must be affirmatively shown.’ ” (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564, italics omitted.) This includes “the 

‘basic presumption indulged in by reviewing courts that the trial 

court . . . kn[ew] and applied the correct statutory and case law in 
14

the exercise of its official duties.’ ” (People v. Bankers Ins. Co.

(2020) 57 Cal.App.5th 418, 425, quoting People v. Mack (1986) 

178 Cal.App.3d 1026, 1032.) Further, in general, trial court error 

does not automatically require reversal of an appealed judgment. 

We reverse only for prejudicial errors. (F.P. v. Monier (2017) 3 

Cal.5th 1099, 1107-1108.)

The Ryckmans argue the trial court erred because it did not 

rule on the merits of the anti-SLAPP motions before awarding 

fees. Defendants argue the Ryckmans failed to timely make this 

argument before the trial court and have therefore waived the 

issue on appeal. “Failure to register a proper and timely 

objection to a ruling or proceeding in the trial court waives the 

issue on appeal.” (Bell v. American Title Ins. Co. (1991) 226 

Cal.App.3d 1589, 1602.) The Ryckmans did not file an opposition 

to the motions for fees and did not appear at the hearing on those 

motions. Instead, they filed an objection to the draft judgment in 

which they belatedly argued the trial court could not grant 

attorney fees and costs to Defendants because, inter alia, it did 

not rule on the merits of the anti-SLAPP motions. Thus, the 

Ryckmans did not timely object to the proceedings and have 

forfeited their argument on appeal.

Even if we overlooked this forfeiture and considered the 

merits of the Ryckmans’ arguments, we would conclude the 

Ryckmans have not affirmatively demonstrated prejudicial error. 

The Ryckmans appear to argue that because the trial court 

vacated the hearings on the special motions to strike after their 

dismissal was filed, the trial court never reached the merits of 

the motions, even at the hearing on the motion for attorney fees. 

However, the Ryckmans did not attend the hearing for 

Defendants’ motion for fees or provide a transcript of it. Their 
15

argument simply invites us to speculate in their favor. We 

cannot. We must presume the trial court applied the correct 

standard in ruling on the motions before it. (See People v. 

Bankers Ins. Co., supra, 57 Cal.App.5th at p. 425; see also 

Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Indeed, 

the record suggests the trial court did apply the correct standard. 

Although the trial court did not expressly state in its minute 

order that it found the special motions to strike meritorious, it 

acknowledged the standard that required it to make such a 

finding, stating, “ ‘ “[A] defendant who is voluntarily dismissed

. . . after filing an [anti-SLAPP motion], is nevertheless entitled 

to have the merits of such motion heard as a predicate to a 

determination of the defendant’s motion for attorney’s fees and 

costs.” ’ [Citation.]”

8 Further, the trial court’s judgment stated

Defendants’ special motions to strike were “meritorious” and 

Defendants were “ ‘prevailing parties.’ ”

Finally, even if we hypothesize that the trial court did not 

rule on the merits of the anti-SLAPP motions, any failure to do so 

was harmless. The record demonstrates Defendants’ special 

motions to strike were meritorious, and given the merit of those 

motions, section 425.16, subdivision (c) mandated that the court 

award Defendants attorney fees and costs as prevailing parties. 

(§ 425.16, subd. (c) [“a prevailing defendant on a special motion to 

8 The Ryckmans also take issue with Defendants’ reliance 

on the standard articulated in Coltrain v. Shewalter, supra, 66 

Cal.App.4th 94, which does not require a finding on the merits

but asks instead who achieved their objectives in the litigation. 

(See id. at p. 107.) Yet nothing in the record suggests the trial 

court relied on this standard, especially when it articulated the 

correct standard in its minute order.
16

strike shall be entitled to recover that defendant’s attorney’s fees 

and costs”].)

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).) Relevant here, acts 

in furtherance of the right of free speech include: “(1) any written 

or oral statement or writing made before a . . . judicial 

proceeding, or any other official proceeding authorized by law[;

and] (2) any written or oral statement or writing made in 

connection with an issue under consideration or review by a . . . 

judicial body, or any other official proceeding authorized by law.” 

(§ 425.16, subd. (e)(1)-(2).)

When considering whether to strike a claim, courts 

undertake a two-prong analysis. “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 a probability 

of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord, 

Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)

Here, Defendants made the challenged statements—that 

the Ryckmans were precluded from presenting evidence that they 

were “owed or entitled to any rents or profits produced by the 

[p]roperty”—in proposed sanctions orders submitted to the trial 

court in the partition action. These are plainly statements made 
17

in connection with a judicial proceeding and therefore fall within 

the ambit of section 425.16, subdivision (e)(1) and (2). (Ibid.; see 

ValueRock TN Properties, LLC v. PK II Larwin Square SC LP

(2019) 36 Cal.App.5th 1037, 1046 [“Protected activity thus 

includes the filing of lawsuits, and statements and pleadings 

made in or in preparation for civil litigation”]; Singh v. Lipworth

(2014) 227 Cal.App.4th 813, 829 [affirming the trial court’s 

conclusion that the plaintiffs’ complaint arose from the 

defendant’s litigation conduct—alleged fraudulent 

representations made to obtain judgments and orders from the 

trial court—and thus came within the scope of § 425.16, subd. 

(e)(2)].)

Thus, to defeat Defendants’ special motions to strike, the 

Ryckmans needed to demonstrate a probability of prevailing on 

their complaint in the secondary action by which they sought to 

nullify the sanctions orders. The Ryckmans contend the 

sanctions orders were “void” because Defendants “forged” the 

profits and rents provision. They argue a void judgment is 

subject to attack at any time, and can be attacked by way of an 

independent action in equity. (Rochin v. Pat Johnson 

Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238 [holding an 

amended judgment was void and of no effect because the trial 

court “had no jurisdiction to so amend the judgment”].)

Although it is true a void judgment can be collaterally 

attacked,9 based on the record before us the Ryckmans failed to 

demonstrate even minimal merit to their claim that the sanctions 

9 “A judgment or order that is not void but ‘merely’ 

voidable, however, is generally not subject to collateral attack.” 

(Schrage v. Schrage (2021) 69 Cal.App.5th 126, 138.)
18

orders were void (or even voidable) as the product of fraud.

10 (Cf. 

Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 289-290 [holding 

the litigation privilege did not bar causes of action for declaratory 

relief and cancellation of instrument by which the plaintiffs 

sought to have an abstract of judgment declared void for fraud, 

but that the trial court should have denied the defendant’s antiSLAPP motion because the plaintiffs demonstrated minimal 

merit to these claims].) They submitted no evidence in opposition 

to the motions to strike that demonstrated their claims had 

minimal merit. The record for this appeal does not include the 

interrogatories that gave rise to the sanctions orders or a 

transcript of the April 28, 2017 hearing. “It is the appellant’s 

affirmative duty to show error by an adequate record.” (Osgood 

v. Landon (2005) 127 Cal.App.4th 425, 435; see Hotels Nevada, 

LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 

[the appellant’s failure to provide adequate record “ ‘requires that 

the issue be resolved against [the] appellant’ ”].) Further, the 

trial court correctly observed in its October 18, 2019 ruling that 

every statement made by a trial court in ruling on an issue does 

not always appear in the minutes of the court, which is why the 

trial court requested (as is common) that the Drexlers, as 

prevailing movants, prepare a proposed order for the court’s 

signature.11 There is no evidence that the Drexlers or their 

10 The Ryckmans do not claim that, as in Rochin v. Pat

Johnson Manufacturing Co., supra, 67 Cal.App.4th 1228, the 

trial court lacked fundamental jurisdiction to act.

11 “It is a matter of trial court procedure whether the court 

chooses to make its final decision by the entry in the minutes of 

an order without a direction that a written order be prepared, 
19

counsel exceeded the stated order of the trial court when they did 

so. Indeed, the evidence is to the contrary: when the Ryckmans’ 

grievance about the scope of the order was called to the attention 

of the judicial officer who made the ruling, he denied the 

Ryckmans’ request to strike the rents and profits provision from 

the order after briefing and argument.

12 Thus, the Ryckmans

failed to demonstrate a probability of prevailing on their 

“independent action in equity” which sought to undo the 

sanctions orders.13

signed and filed, or elects to enter a direction that a formal order 

be prepared.” (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304.)

12 Although we hold that the Ryckmans failed to 

demonstrate minimal merit to their claim that the sanctions 

orders were obtained through extrinsic fraud for purposes of the 

anti-SLAPP motion, we express no opinion on the propriety of the 

trial court’s evidentiary sanctions orders themselves as that issue 

is not before us in this appeal.

13 Defendants’ appellate brief requests that we impose 

sanctions for what they term a frivolous appeal. The California 

Rules of Court require that any such request instead be made by 

way of a separate motion with a supporting declaration. (Cal. 

Rules of Court, rule 8.276(a)-(b).) We therefore decline to 

consider that request.
20

DISPOSITION

The trial court’s judgment is affirmed. Defendants are 

awarded their costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.