Chodos v. Cole

• Decision Date: 25 October 2012
• Docket Number: No. B236361.,B236361.
• Citation: 210 Cal.App.4th 692,148 Cal.Rptr.3d 451
• Parties: Hillel CHODOS, Plaintiff and Appellant, v. Dana M. COLE et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

210 Cal.App.4th 692

148 Cal.Rptr.3d 451

12 Cal. Daily Op. Serv. 12,569

2012 Daily Journal D.A.R. 14,885

Hillel CHODOS, Plaintiff and Appellant,

v.Dana M. COLE et al., Defendants and Respondents.

No. B236361.

Court of Appeal, Second District, Division 5, California.

Oct. 25, 2012.

See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1025 et seq.

Hillel Chodos, Plaintiff and Appellant, in pro per.

The Law Offices of Ronald Richards & Associates, Ronald Richards and Nicholas Bravo, Beverly Hills, for Appellant Dana Cole.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven J. Joffe, Robert Cooper and Craig C. Hunter, Los Angeles, for Defendants and Respondents Michael D. Dempsey, Stephen C. Johnson and Dempsey & Johnson.

MOSK, J.

INTRODUCTION

A cross-complaint was filed against attorney Hillel Chodos (Chodos) and another attorney for malpractice in connection with their representation in, and settlement of, a marital dissolution and related proceedings. Chodos cross-complained against other attorneys for indemnification for any malpractice award against him because, he alleged, those other attorneys had rendered advice concerning, reviewed, and approved the settlement of the dissolution and related proceedings. The attorneys successfully moved to strike Chodos's cross-complaint under Code of Civil Procedure section 425.16—the anti-SLAPP (strategic lawsuit against public participation) statute.¹ Chodos appeals from those orders and from the orders awarding attorney fees against him. We reverse the orders striking the cross-complaint. We hold that the claim does not involve activity protected by the anti-SLAPP statute. We also hold that Chodos did not have to supply a reporter's transcript of the argumentbefore the trial court because we review the matter de novo, the trial court said it relied only on the papers submitted, and none of the parties relies on anything that occurred during that argument.

BACKGROUND

Chodos, a lawyer, and his former co-counsel, Hugh John Gibson, sued a former client, Navabeh P. Borman, for fees owing for their representation of her in a marital dissolution proceedings and a related “Marvin ” action.² Chodos and Gibson alleged in their complaint that despite the fact that Ms. Borman became mistrustful of them and their advice, and actually engaged three separate and independent lawyers to review their handling of her cases and to give her independent advice, Chodos and Gibson procured a settlement for Ms. Borman that she accepted. Chodos and Gibson claimed that Ms. Borman's verbal agreement to pay their hourly rate was modified to provide for a contingency fee. Chodos and Gibson alleged Ms. Borman never paid them any attorney fees or costs advanced and refused to pay any attorney fees. They alleged that they did receive $215,000 from Mr. Borman as a result of a court order and credited that amount against attorney fees and costs owed by Ms. Borman. Chodos and Gibson sought unpaid attorney fees in the amount of $3,500,000 or according to proof.

Ms. Borman, represented by Michael D. Dempsey and Dempsey & Johnson (sometimes collectively Dempsey), cross-complained against Chodos and Gibson for attorney malpractice in the handling of the underlying marital dissolution action and the “Marvin ” action, including claims that, inter alia, Chodos and Gibson failed to prepare, misrepresented the terms of the proposed settlement prior to the execution, failed to enforce interim court orders, and failed to advise Ms. Borman on various issues. She also alleged conversion of property.

Chodos answered, denying liability, and filed a cross-complaint against Dana M. Cole, Stephen H. Johnson, Michael D. Dempsey, and Dempsey & Johnson for equitable indemnity. Chodos alleged that they acted as Ms. Borman's concurrent, independent advisers and independent counsel while Chodos and Gibson represented her of record in the underlying marital dissolution proceedings and the “Marvin ” action. He further alleged that Cole and Dempsey independently reviewed the proposed settlement; recommended to Ms. Borman that she accept it; and that she did so, not in reliance on the advice of Chodos or Gibson, whom she did not trust, but rather in reliance on the advice and recommendation of Cole and Dempsey. Thus, Chodos sought equitable indemnification for any amounts found to be due Ms. Borman on account of his alleged malpractice.

Cole filed a motion under section 425.16 (anti-SLAPP motion) to strike Chodos's cross-complaint for equitable indemnity on the ground the cross-complaint “arose from” protected activity. Dempsey filed a separate but similar anti-SLAPP motion.

The trial court granted both anti-SLAPP motions. Cole then submitted a request for attorney fees and costs totaling $42,622.50, and the trial court awarded Cole $37,935 in attorney fees and costs. Dempsey submitted a separate request for attorney fees and costs totaling $51,069.20, and the trial court awarded to Dempsey $21,500.

Chodos appealed from the orders granting the anti-SLAPP motions and the award of attorney fees. As a result of enforcement proceedings by Cole and Dempsey, Chodos paid the attorney fee awards in full under protest, reserving his claims on appeal.

PROCEDURAL ISSUES

After the court granted the two anti-SLAPP motions and Cole's attorney fees motion, Chodos filed a single notice of appeal. In his notice of appeal, Chodos identified the two anti-SLAPP motion rulings as well as the two rulings on the attorney fees motions. Although the anti-SLAPP motion rulings and the attorney fees award in Cole's favor had been entered before Chodos filed his notice of appeal, the attorney fees award in favor of Dempsey had not been entered as of the time Chodos filed his notice of appeal. As a result, Dempsey filed a motion to dismiss Chodos's appeal as to the attorney fees award because Chodos had failed to file a separate notice of appeal within 60 days after a file-stamped copy of that attorney fees order was served. We denied the motion to dismiss the appeal on this jurisdictional ground.

In addition, Dempsey and Cole argued and also moved that Chodos's entire appeal should be dismissed based on Chodos's failure to present an adequate record on appeal. They argued that Chodos's failure to designate any of the reporter's transcripts for the four motions that are the subject of this appeal precluded this court from examining the record. Although we denied the request to dismiss the appeal, we noted that “the failure to provide an adequate record warrants affirmance.” We sent out a request for further briefing as to the adequacy of the record, taking into account the omitted reporter's transcripts and certain pleadings, and as to whether a timely notice of appeal had been filed with respect to the order for attorney fees in favor of Dempsey.

Chodos takes the position that he is not relying on anything that occurred at the hearings or in the missing documents, and therefore there is an adequate record. He also asserts that the notice of appeal sufficiently covered the later-filed orders on attorney fees.

In this case, Chodos's appeal as to the attorney fees awarded Dempsey was based on the amount of the fees. The determination of the amount of the fees was made after the notice of appeal was filed. Whether the notice of appeal encompassed the post judgment determination of attorney fees (compare Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 118 Cal.Rptr.3d 581 with Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 3 Cal.Rptr.2d 654) is an issue we need not reach because we reverse the orders striking the cross-complaint.

DISCUSSION

A. Appealability and Standard of Review

An order granting a special motion to strike under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) We review de novo the trial court's order granting an anti-SLAPP motion. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326, 46 Cal.Rptr.3d 606, 139 P.3d 2;Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322–1323, 81 Cal.Rptr.3d 866.) We do not weigh the evidence; rather, we accept as true evidence favorable to Chodos, and evaluate evidence favorable to the moving parties, to determine whether as a matter of law, it defeats Chodos's evidence. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, 46 Cal.Rptr.3d 638, 139 P.3d 30;Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279, 55 Cal.Rptr.3d 544.)

B. Adequacy of Record and Brief

The only submissions to the trial court were the papers filed in support and opposition of the anti-SLAPP motions. There is no indication that witnesses testified or evidentiary issues arose at the hearing. The trial court in its order granting the anti-SLAPP motions stated, “After carefully considering the moving papers, the opposition, the declarations in opposition and in support, the exhibits, the Court grants the respective motions to strike pursuant to Code of [Civil Procedure section] 425.16....” The legal issue decided was whether Chodos's cross-complaint is covered by the anti-SLAPP statute and whether the claim has sufficient merit to survive the anti-SLAPP motions. We reach only the first issue—whether the claim is protected by the anti-SLAPP statute. We do not reach the issues regarding attorney fees.

California Rules of Court, rule 8.120(b) requires a reporter's transcript on appeal only if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court.” California Rules of Court, rule 8.130(a)(4) provides that an appellant may “elect to proceed without a reporter's transcript.” ³ None of the parties relies upon the oral argument before the trial court, and we decide a pure legal issue based on the filings before the trial court—as did the trial court. And, as noted, we review that trial court decision de novo. If we did determine that a reporter's transcript was necessary “to prevent a...