STRATTON, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTSCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KC069679) APPEAL from an order of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Affirmed in part and reversed in part. Anglin Flewelling Rasmussen Campbell & Trytten, Robert A. Bailey and Leigh O. Curran for Plaintiffs, Cross-defendants, and Appellants. Kaveh Keshmiri; Law Offices of Henry N. Jannol and Rebecca D. Wester for Defendants, Cross-complainants, and Respondents.
____________________INTRODUCTION
Tenants filed a civil complaint against their landlord and owner of the rental property for breach of the lease agreement, among other claims. The landlord/owner filed a cross-complaint, alleging three causes of action that are based, in part, on the following allegation: that the tenants filed their civil complaint to harass and intimidate them. The tenants filed a special "anti-SLAPP" motion to strike the allegation, claiming it is based on their protected activity of petitioning courts. The trial court denied the anti-SLAPP motion, finding that the allegation of protected activity is merely incidental, and not integral, to the landlord's three causes of action. We reverse as it pertains to the cause of action for intentional infliction of emotional distress and affirm as to the other two causes of action set forth in the landlord's cross-complaint.
FACTUAL AND PROCEDURAL BACKGROUNDA. Relevant Factual Background
On January 27, 2016, husband and wife Leo and Jean Wang (collectively, the Wangs) executed a written residential lease agreement with Stella Yeh (Yeh) for the real property located at 2817 Muir Woods Court in West Covina (Property). The Wangs moved into the Property on February 6, 2016.
We glean the following from the terms of their lease agreement:
• Yeh identified herself as the landlord of the Property.
• It was a 12-month lease extending from February 6, 2016 until February 5, 2017.
• The Wangs agreed to pay $4,700 rent per month, in addition to a payment of $9,400 as a security deposit.
• All or any portion of the security deposit could be used by the landlord, as reasonably necessary, to cure a default in payment of rent, to repair damage caused by tenants (excluding ordinary wear and tear), to replace appurtenances, and to clean the premises upon termination of the lease. Within 21 days after the tenants vacate the Property, the landlord was obligated to return the security deposit (or what remained of it) with an itemized statement of deductions supported by documentation.
• The Wangs acknowledged the entire property was "in excellent condition" and everything was "in working order."
• The Wangs were not permitted to make any repair or alteration to the premises without the landlord's prior written consent, unless otherwise specified by law.
• The Wangs were obligated to make the property available to the landlord to enter and make necessary or agreed-upon repairs; 24-hours written notice was generally deemed "reasonable and sufficient notice."
• If the Wangs terminated the lease before completion of the agreed-upon 12-month term, they were also responsible for lost rent, rental commissions, advertising expenses, and painting costs necessary to ready the property for re-rental by the landlord.
• Lastly, no smoking was allowed on or about the premises; a tenant who did not follow this rule was deemed to be "in breach of the lease agreement.
Although Yeh held herself out to the Wangs as the landlord, the actual owner of the Property was Rambod Sotoodeh (Sotoodeh). In January 2016, Sotoodeh had suffered a heart attack and had temporary relinquished his affairs to Yeh in connection with leasing the Property to the Wangs.
Issues arose between Yeh/Sotoodeh and the Wangs, which we summarize below. As a result, on August 19, 2016, the Wangs moved out of the Property and initiated the underlying civil action against Yeh and Sotoodeh. B. Civil Complaint
On May 31, 2018, the Wangs filed the operative Second Amended Complaint (SAC) against Yeh and Sotoodeh. They sought damages and payment of attorney fees and costs in connection with their causes of actions for breach of residential lease, breach of covenant of quiet enjoyment, violations of Civil Code sections 1950.5(g)(1) and 1950.5(l), and intentional interference with contractual relations.
In the SAC, the Wangs alleged that in late May or early June 2016, the air conditioning (A/C) at the Property stopped working. Leo Wang asked Sotoodeh to repair the broken A/C units, but Sotoodeh "refused, first telling [the Wangs] falsely that the breakdown was caused by Southern California Edison, and then repeatedly refus[ed] to repair or replace the units, writing eventually to [the Wangs]: 'As landlord [I] will NOT pay ANY cost associated with the repair and would like a copy of the repairs once completed.' " The Wangs were "forced to temporarily leave the Property when summer temperatures soared."
The Property had an upstairs A/C unit and another A/C unit downstairs.
The SAC alleged the Wangs repaired the upstairs A/C unit for $350 and obtained estimates of $1,800 to repair or $3,500 to replace the downstairs unit. Upon furnishing the invoice for repairing the upstairs unit and the estimates for the downstairs A/C unit, Sotoodeh and Yeh again refused to pay for the repair. Sotoodeh also "repeatedly entered or attempted to enter the Property without notice to [the Wangs] . . . [and] without obtaining [their] permission."
On August 9, 2016, the Wangs served Yeh with a "Notice of Landlord Breach of Lease," providing notice of their intent to vacate the Property on August 19, 2016, due to Sotoodeh's "threatening and hostile behavior and his repeated trespass on the Property [which] caused [the Wangs] to fear for their safety. That, coupled with [Yeh and Sotoodeh's] refusal to repair the air conditioning, particularly during the heat of the summer months . . . ."
On August 11, 2016, Yeh sent a letter to the Wangs' counsel stating, in relevant part: "Please be advised that I am not moving forward with a judicial action at this time . . . . Consequently, I am not waiving my right to move forward with a judicial action and if for any reason your clients refuse to give us access again I will move forward with judicial action on Friday immediately." (Italics added.)
On October 4, 2016, 46 days after the Wangs vacated the Property, Yeh provided them with "what purported to be a final itemized statement deducting charges from the security deposit," as follows: $1,850 for A/C repair, $350 for unspecified electrical repair, $600 for marketing, $4,700 commission fee, $5,013.34 in rent, and $1,472.71 for damage to the alarm. Thus, the entire $9,400 security deposit was depleted, and Yeh and Sotoodeh demanded an additional $2,079.33 for the balance owed.
Based on the foregoing, the Wangs alleged Yeh breached the lease by refusing to repair the A/C units, failing to reimburse them for abated rent when they were forced to temporarily leave the "uninhabitable" Property, and deducting various amounts from the security deposit contrary to the lease terms. The Wangs further contend Sotoodeh engaged in intentional acts designed to interfere with and/or induce a breach of the contractual lease agreement between Yeh and the Wangs. C. Cross-Complaint
On August 17, 2018, Yeh and Sotoodeh filed a cross-complaint, asserting causes of action for breach of lease agreement and intentional infliction of emotional distress (IIED) against both Leo and Jean Wang; they asserted an additional claim against Leo Wang only for violation of Penal Code sections 632 and 632.7 (prohibiting the recording of confidential communications).
According to the cross-complaint, by July 2016, "the surrounding residential neighbors had complained about Leo's smoking," especially as the Property is located on a hillside and is at risk of wildfire. Yeh requested that Leo Wang cease smoking at or near the Property, as it constituted a violation of the terms of the lease agreement. As a result, Leo became "extremely agitated and began a campaign to intimidate and harass Yeh," telling her "as long as he was paying rent, he 'could do whatever [he] wanted.' "
The cross-complaint alleged Leo Wang contacted Yeh regarding the downstairs A/C unit "for the first-time" on August 2, 2016; although Leo Wang "aggressively demanded" the downstairs unit be repaired, he failed to present any repair estimate/invoice. Further, there had been "no discussion or complaints regarding the upstairs unit at any time."
On August 3, 2016, Yeh and Sotoodeh observed Leo Wang smoking on the driveway of the Property, "in spite of explicit requests that he not do so." When Sotoodeh approached Leo to inquire about the status of the A/C repairs, Leo allegedly "threatened Sotoodeh with an open hand and caused [him] to reasonably believe that he was about to be struck." Because of this incident, Sotoodeh was "fearful for his safety" and was "so shaken by this interaction that he immediately retreated to his own home to take his heart medication."
On August 4, 2016, Yeh issued a "Notice of Entry" and left it on the front door of the Property, notifying the Wangs that she would enter the property at 4:30 p.m. the next day to "check maintenance & use of the premises as stated on the lease agreement." The Wangs "refused to grant access." Yeh then issued a "Notice to Perform Covenant (Cure) or Quit," and affixed it to a conspicuous place on the premises.
On August 12, 2016, Sotoodeh and Yeh arrived at the Property to conduct an inspection; the Wangs' attorney was present. Yeh and Sotoodeh alleged having been notified that Leo Wang would not be present at the inspection, as Sotoodeh "wished to avoid further confrontation." Shortly after the inspection began, however, Leo appeared at the Property, started "walking closely behind them, and without notice[,] had begun recording [Sotoodeh's and Yeh's] private conversation." This "terrified and intimidated" Yeh and Sotoodeh, who terminated the inspection and filed a report with the West Covina Police.
On September 7, 2016 (19 days after the Wangs moved out of the Property), Yeh provided a preliminary disposition of the security deposit. On October 4, 2016, having received no written or oral objection to the preliminary disposition of the security deposit, a final disposition was issued.
Based on the foregoing, the first cause of action in the cross-complaint alleged Yeh and Sotoodeh suffered damages because the Wangs breached their lease agreement by smoking on the premises, making alterations to the Property without first obtaining Yeh's written consent, altering the Property's alarm system, intentionally refusing Yeh and Sotoodeh access to the Property to inspect and repair, and failing to pay the balance owed after depleting the security deposit.
The second cause of action alleged Yeh and Sotoodeh "sustain[ed] overwhelming emotional and physiological damage" and suffered embarrassment, anxiety, depression, and humiliation because of Leo Wang's intentional recording of "confidential communications" between Yeh and Sotoodeh, violation of Penal Code sections 632 and 632.7.
The third cause of action alleged the Wangs' "menacing gestures, surprise appearances, and illegal recording o[f] private conversations" amounted to "extreme, outrageous" conduct that was intentionally done to cause Yeh and Sotoodeh "severe emotional distress" and "physical and psychological trauma and injuries"—in addition to "special and general damages in an amount according to proof . . . ."
Finally and significantly, all of the causes of action in the cross-complaint are premised, in part, on the allegation that the Wangs "have taken advantage of [Yeh/Sotoodeh's] weakened health and have filed this action to further harass and intimidate [Yeh and Sotoodeh]." This allegation—namely, paragraph 37 of the cross-complaint—was incorporated by reference into all three causes of action.
In addition to the damages specified in each cause of action, Yeh and Sotoodeh also sought actual damages, statutory damages, punitive and exemplary damages, attorney fees and costs. D. Special Motion to Strike Portions of the Cross-Complaint
On September 11, 2018, the Wangs filed a special motion to strike Yeh and Sotoodeh's cross-complaint as a strategic lawsuit against public participation under the anti-SLAPP statute, Code of Civil Procedure section 425.16. They argued all three causes of action are "premised, in part, on [the] allegation that the Wangs filed their complaint for the purpose of harassing and intimidating Yeh and Sotoodeh." (Italics added.) The Wangs argued because the cross-complaint's causes of action arise, at least in part, out of the Wangs' act in furtherance of their right of petition (i.e., the filing of their civil complaint), the claims should be stricken under section 425.16. They also contend Yeh and Sotoodeh cannot demonstrate a probability of prevailing on any claim arising out of the Wangs' filing of their civil complaint. The anti-SLAPP motion included a request for attorney fees and costs pursuant to section 425.16, subdivision (c).
All further undesignated statutory references are to the Code of Civil Procedure, unless otherwise indicated. --------
In opposition, Yeh and Sotoodeh argued that paragraph 37 describing why the Wangs filed their complaint is "incidental" to their claims and merely provides context for the causes of action. They contend the gravamen of their cross-complaint is the Wangs' "various lease violations and frightening conduct" and that their causes of action do not arise from any protected activity. They also argued their cross-complaint was compulsory and so is "excluded from qualification as a SLAPP suit." Yeh and Sotoodeh sought attorney fees and costs, too, arguing the Wangs' anti-SLAPP motion was frivolous, brought in bad faith, and filed solely to cause delay. E. Trial Court's Ruling
On November 28, 2018, the trial court issued an order denying the Wangs' special motion to strike in its entirety. As to the first prong, the court ruled the allegation set forth in paragraph 37 of the cross-complaint is "incidental, not integral, to [Yeh/Sotoodeh's] three causes of action." The trial court found that none of Yeh and Sotoodeh's claims are based on the Wangs' filing of the lawsuit. The court found the Wangs had not met their burden to establish prong 1 of the anti-SLAPP test; accordingly, the trial court did not address prong 2.
Lastly, the trial court ordered the Wangs to pay the sum of $2,000 as reasonable attorney fees and costs to Yeh/Sotoodeh.
The Wangs timely appealed.
DISCUSSIONA. Applicable Law
Section 425.16 provides, inter alia, 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).) An " 'act in furtherance of a person's right of petition or free speech . . . in connection with a public issue' " is defined in section 425.16 to include, in relevant part: "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law," and "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." (Id., subd. (e).)
The Legislature enacted section 425.16 to prevent and deter "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) Thus, the purpose of the anti-SLAPP law is "not [to] insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
Further, an anti-SLAPP motion may be used "to attack parts of a count as pleaded" when the cause of action is "mixed"—meaning, it contains allegations regarding "both protected and unprotected activity." (Baral, supra, 1 Cal.5th at pp. 393-394.) When relief is sought based on allegations of both protected and unprotected activity, "the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached." (Id. at p. 396.)
When a party moves to strike a cause of action (or portion thereof) under the anti-SLAPP law, a trial court evaluates the special motion to strike using a two-prong test: (1) has the moving party "made a threshold showing that the challenged cause of action arises from protected activity" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056); and if it has, (2) has the non-moving party demonstrated that the challenged cause of action has "minimal merit" by making "a prima facie factual showing sufficient to sustain" a judgment in its favor? (Baral, supra, 1 Cal.5th at pp. 384-385; Navellier v. Sletten (2002) 29 Cal.4th 82, 93-94; see also § 425.16, subd. (b)(1)). After the first prong is satisfied by the moving party, "the burden [then] shifts to the [non-moving party] to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated." (Baral, at p. 396.) B. Standard of Review
We review a trial court's ruling on a special motion to strike pursuant to section 425.16 under the de novo standard. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) "In other words, we employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted." (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1652.)
We consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) In considering the pleadings and declarations, we do not make credibility determinations or compare the weight of the evidence; instead, we accept the opposing party's evidence as true and evaluate the moving party's evidence only to determine if it has defeated the opposing party's evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) C. Absence of a Reporter's Transcript
The Wangs challenge an order made after a hearing on November 14, 2018 that was not reported. The record on appeal does not include a settled statement or agreed statement as authorized by California Rules of Court, rules 8.163 and 8.137. The trial court's tentative ruling, adopted and incorporated into the November 28, 2018 minute order, does specify that the court "will hear argument as to why [Yeh and Sotoodeh] are not entitled to attorney's fees in the amount of $2,000." Further, it is mentioned in the appellate briefing before us that the "trial court heard oral argument on the issue of attorney's fees."
Affirmance of the order appealed from may be warranted in the absence of a reporter's transcript when such a transcript is necessary for meaningful review. (See, e.g., Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 [appeal requiring consideration of testimony could not proceed in the absence of a reporter's transcript or a settled statement].) As a result, the Wangs cannot rely on errors at the November 14, 2018 hearing unless the claimed error appears on the face of the record before us. (Cal. Rules of Court, rule 8.163; see, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [declining to review the adequacy of an award of damages absent a reporter's transcript or settled statement of the damages portion]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447-448 ["The absence of a record concerning what actually occurred at the trial precludes a determination that the trial court abused its discretion"].)
Because we review the denial of an anti-SLAPP motion de novo and must conduct an independent analysis of our own, we can resolve the appeal from the ruling on the Wang's special motion to strike in the absence of a reporter's transcript. "While a record of the hearing would have been helpful to understand the trial court's reasoning, it is not necessary here where our review is de novo and the appellate record includes the trial court's written orders and all . . . materials germane to Appellant['s] motion." (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 933-934; Chodos v. Cole (2012) 210 Cal.App.4th 692, 696.) The absence of a reporter's transcript is not fatal to the Wangs' appeal of the court's denial of their anti-SLAPP motion. We will address the effect, if any, of the lack of a reporter's transcript on the issue of attorney fees in the corresponding section below. D. Prong 1: Arising from Protected Activity
Leo and Jean Wang's initial burden at step one is to show that the causes of action in Yeh/Sotoodeh's cross-complaint arise from protected activity. (Park, supra, 2 Cal.5th at p. 1061.) They argue that the incorporation of paragraph 37 into each of Yeh and Sotoodeh's three causes of action imposed liability on the Wangs for filing their civil complaint.
There is no question that filing documents in court is petitioning activity protected by section 425.16, subdivision (e). (See Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 [" '[t]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action' "]; City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 766 [same].) Yeh and Sotoodeh argue, however, that paragraph 37 is merely incidental (and not integral) to their causes of action for breach of the lease agreement, intentional infliction of emotional distress, and violation of Penal Code sections 632 and 632.7. They contend the anti-SLAPP protections do not apply because the overall thrust of each of their causes of action was not based on the Wangs' filing of the complaint; they argue paragraph 37 "was included merely to provide context, and . . . does not transform this landlord-tenant dispute over the security deposit and other pre-filing conflict into a SLAPP suit."
In determining whether a mixed cause of action (meaning, one containing allegations of both protected and non-protected activity) is subject to the anti-SLAPP statute, we examine whether the principal thrust or gravamen of the cause of action targets protected activity. (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 586-587 (Okorie); City of Colton v. Singletary, supra, 206 Cal.App.4th at p. 767.) " ' "We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.] If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute." ' " (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1520.) In making this inquiry, courts "look to see whether the essence or 'bulk' of the cause of action is based on protected activity." (Okorie, at p. 587.)
For example, in Park, a professor who was denied tenure sued his university employer for discrimination. (Park, supra, 2 Cal.5th at p. 1061.) The university filed an anti-SLAPP motion to strike Park's complaint, asserting his discrimination claim was based on protected communications that led up to the university's decision to deny tenure. (Ibid.) The Court of Appeal agreed with the university and ordered Park's claim stricken. (Id. at pp. 1061-1062.) Nevertheless, our Supreme Court reversed. It found the "elements of Park's claim . . . depend[ed] not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible" (id. at p. 1068). Thus, a claim may be struck "only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." (Id. at p. 1060).
Our independent review of the pleadings and the supporting declarations discloses Yeh and Sotoodeh's three causes of action appear to be based in part on conduct that is protected activity, i.e., the allegation included in paragraph 37 that the Wangs filed their civil complaint "to further harass and intimidate" Yeh and Sotoodeh. We must thus determine whether the Wangs' petitioning activity is merely an incidental part of each cause of action in the cross-complaint filed by Yeh and Sotoodeh.
1. Breach of Lease Agreement
The first cause of action alleges Leo and Jean Wang breached the lease agreement by smoking on the premises, making alterations to the Property without first obtaining Yeh's written consent, altering the alarm, refusing Yeh and Sotoodeh access to the Property, and failing to pay the balance owed on the security deposit. Although this cause of action incorporated paragraph 37, the Wang's alleged breach of the lease agreement is in no way based on the protected activity in question, i.e., the Wangs' filing of their civil complaint. The gravamen and principal thrust of the cause of action for breach of the lease is based on actions that occurred before the Wangs filed their civil complaint.
In fact, the liability pertaining to this cause of action is not even based on the Wangs' protected activity of filing a complaint. We agree with Yeh and Sotoodeh that the protected activity is merely incidental to the cause of action, and is therefore not subject to the SLAPP statute.
2. Violation of Penal Code Sections 632 and 632.7
Similarly, the second cause of action against Leo Wang only has no causal connection to the filing of the civil complaint. Yeh and Sotoodeh alleged having suffered humiliation and depression as a result of Leo Wang's intentional recording of their confidential communications during the Property inspection. Despite the incorporation of paragraph 37 into this cause of action, their claim is in no way based on the Wangs' filing of the complaint. It is based only on the incident of August 12, 2016—when Leo appeared at the Property during the inspection and allegedly recorded Yeh's and Sotoodeh's conversation without their consent.
3. Intentional Infliction of Emotional Distress
The same cannot be said for the third cause of action for IIED. Yeh and Sotoodeh allege suffering emotional and physical distress as a result of "outrageous conduct" by both Leo and Jean Wang, including: "menacing gestures, surprise appearances, and illegal recording o[f] private conversations." They further claim Leo and Jean Wang's conduct was "extreme, outrageous, intentional, malicious, and done with the purpose of causing [them] to suffer humiliation . . . ."
The incorporation of paragraph 37 here does more than merely provide "evidentiary support" for their IIED claim (Okorie, supra, 14 Cal.App.5th at p. 591); we find that it provides yet another basis for their cause of action. One may reasonably determine the allegation that the Wangs "filed this action to further harass and intimidate [Yeh/Sotoodeh]" to be yet another ground on which they suffered emotional distress.
Furthermore, we give credence to the following argument presented by the Wangs on appeal. Yeh/Sotoodeh's IIED cause of action is expressly made against both Leo and Jean Wang; however, the conduct described ("menacing gestures, surprise appearances, and illegal recording") applies only to Leo and not his wife Jean. Although Yeh and Sotoodeh use the plural "Wangs" and/or "Cross-Defendants" in their pleadings and declarations in the underlying action, the cited conduct refers only to that of Leo Wang. The only tortious conduct that could reasonably be attributed to Jean Wang to warrant the inclusion of her name as a cross-defendant in their IIED claim is her filing the complaint.
Accordingly, we conclude the Wangs made the threshold showing that Yeh and Sotoodeh's IIED cause of action was based, at least in part, on protected activity and thus subject to section 425.16. E. Remand to Address Prong 2 of Anti-SLAPP Analysis
Because we have concluded Leo and Jean Wang met their burden of showing that the IIED cause of action asserted against them was based on conduct protected under section 425.16, the burden shifts to Yeh and Sotoodeh to show a probability of prevailing on that cause of action as required by the second prong of the anti-SLAPP analysis. Here, the trial court never reached the second prong of the motion. Where a trial court has erroneously failed to address the second prong of the analysis under section 425.16, we have discretion to either reach the second prong ourselves or remand the matter to the trial court to address the second prong in the first instance. (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286; Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1355.)
Because the parties' briefing failed to discuss adequately the second step of the anti-SLAPP analysis, and the trial court did not consider it at all given its ruling on the first prong, we reverse and remand with instructions to the trial court to undertake in the first instance the second step of the statutory analysis. F. Attorney Fees Pursuant to Sections 425.16 and 128.5
A prevailing defendant in an anti-SLAPP motion "shall be entitled to recover his or her attorney's fees and costs." (§ 425.16, subd. (c)(1), italics added.) In addition, "[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." (Ibid., italics added.) Frivolous, in this context, means "totally and completely without merit or for the sole purpose of harassing an opposing party." (§ 128.5, subd. (b)(2).) Finally, an order imposing the payment of attorney fees pursuant to this section "shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order." (Id., subd. (c).)
We review an anti-SLAPP attorney fee award under the "deferential abuse of discretion standard" and the "trial court's fee determination ' " 'will not be disturbed unless the appellate court is convinced that it is clearly wrong.' " ' " (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.)
On appeal, Yeh and Sotoodeh argue we should resolve the issue of attorney fees against the Wangs because of the "lack of an adequate record," i.e. the reporter's transcript of the November 14, 2018 hearing where the court heard argument regarding the issue of attorney fees and costs. We disagree, for two reasons.
First, on the face of the record—specifically, the November 14, 2018 tentative ruling and the November 28, 2018 minute order—we find the trial court abused its discretion in connection with the $2,000 attorney fee award. Namely, it awarded Yeh and Sotoodeh $2,000 in fees but failed to recite in detail the action or tactic or circumstances justifying the order in writing, as required pursuant to sections 425.16, subdivision (c)(1) and 128.5, subdivision (c). On that ground alone we reverse the order.
Second, as a result of our holding reversing part of the trial court's order, the Wangs, as cross-defendants, partially prevailed as it pertains to the cross-complaint's IIED cause of action. We therefore find the Wangs' special motion to strike was not "frivolous or . . . solely intended to cause unnecessary delay" (§ 425.16, subd. (c)(1)), requiring reversal of the trial court's $2,000 attorney fee award to cross-complainants Yeh and Sotoodeh.
DISPOSITIONThe trial court's denial of the anti-SLAPP motion is affirmed as to the first and second causes of actions of the cross-complaint. The trial court's denial of the anti-SLAPP motion as to the third cause of action of the cross-complaint for intentional infliction of emotional distress is reversed and the matter remanded to the trial court with instructions to undertake the second prong of the anti-SLAPP analysis. The trial court's attorney fee award made pursuant to section 425.16, subdivision (c) is also reversed; on remand, the trial court shall reconsider its attorney fee award in accordance with its findings after completing prong 2 of the anti-SLAPP analysis. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
WILEY, J.
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