Filed 5/20/21 Weischadle v. Charboneau CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GLORIA WEISCHADLE, B304032
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 18VECV00264)
ROBERT CHARBONEAU et al.,
Defendants and
Respondents,
APPEAL from an order of the Superior Court of
Los Angeles County, Michael Harwin, Judge. Affirmed.
Gloria Weischadle, in pro. per., for Plaintiff and Appellant.
Kaufman Dolowich Voluck, Andrew J. Waxler and John T.
Lupton for Defendants and Respondents Robert Charboneau and
Law Offices of Robert Charboneau.
Gloria Weischadle appeals from the order granting the
motion of Robert Charboneau and the Law Offices of Robert
Charboneau (the Charboneau defendants) for attorney fees and
costs pursuant to Code of Civil Procedure section 425.16,
1
subdivision (c), after the court determined their special motion to
strike each cause of action in Weischadle’s complaint would have
been successful had she not dismissed her lawsuit while the
motion was pending. In her opening brief Weischadle contends
attorney fees were improper because the Charboneau defendants
had not prevailed on their special motion to strike when she
dismissed her complaint. In her reply brief Weischadle adds
other arguments, including that the special motion to strike
lacked merit because her lawsuit did not involve a public issue.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Weischadle’s Personal Injury Lawsuit
Weischadle fell backward on an escalator at Los Angeles
International Airport on September 2, 2015 and injured herself.
She sued Los Angeles World Airports (LAWA) in September 2016
for personal injuries (Super. Ct. L.A. County, 2018,
No. BC634298). Apart from a brief period early in the lawsuit,
Weischadle represented herself in the personal injury action; the
Charboneau defendants represented LAWA. The court granted
LAWA’s motion for nonsuit at trial after Weischadle failed to
provide evidence to support her claim of dangerous condition of
public property. Our Division Four colleagues affirmed the
1
Statutory references are to this code unless otherwise
stated.
2
judgment on appeal. (Weischadle v. Los Angeles World Airports
(Oct. 28, 2019, B294949) [nonpub. opn.].)
2. Weischadle’s Lawsuit Against the Charboneau
Defendants
While her appeal from the judgment in the personal injury
action was pending, Weischadle filed the complaint in the case at
bar for fraud, conspiracy, willful suppression of evidence and
legal malpractice, among other causes of action, alleging the
Charboneau defendants, while representing LAWA in the
personal injury action, had purposefully withheld material
2
evidence during discovery.
3. The Charboneau Defendants’ Special Motion To Strike
The Charboneau defendants filed a special motion to strike
Weischadle’s complaint pursuant to section 425.16, alleging each
cause of action arose from protected litigation activity and
Weischadle could not demonstrate any of her claims had even
minimal merit. Weischadle opposed the motion, arguing the
complaint, rooted in fraudulent concealment and willful
suppression of evidence, did not arise from protected activity.
She also argued, in conclusory fashion, that she had
demonstrated a probability of prevailing on her claims.
At the outset of the July 12, 2019 hearing on the special
motion to strike, the court issued a tentative ruling stating its
inclination to grant the motion. Weischadle requested the court
2
In her appeal of the personal injury action, Weischadle
similarly asserted evidence had been wrongfully withheld from
her in discovery. The Charboneau defendants responded their
objections on behalf of LAWA were valid and their substantive
responses were proper. The court of appeal rejected Weischadle’s
arguments.
3
stay the matter until the appeal in the personal injury action was
decided. The Charboneau defendants objected to the stay
request, and the court denied it.
Weischadle told the court that, rather than arguing against
the tentative at the hearing, she wished to dismiss her complaint
without prejudice. The court stated it was her litigation, and
thus her prerogative, to dismiss it, but warned that dismissal
would not necessarily immunize her from the attorney-fee-
shifting provision in section 425.16. Weischadle replied she was
not a lawyer and had no choice but to dismiss to “preserve my
appeal case.” The court responded, “You keep talking about that,
and I appreciate the appeal is very important to you, but it is a
separate matter. This lawsuit is a separate matter from your
appeal matter.” Weischadle again requested a stay of the
hearing or, alternatively, a continuance of 120 days to allow her
to obtain the assistance of counsel.
The Charboneau defendants urged the court to deny
Weischadle’s request for a continuance and rule on the merits of
their motion, asserting the appeal had no bearing on the special
motion to strike. The court denied the continuance. After
holding a brief recess and confirming with Weischadle that it was
her intention to dismiss her complaint, the court accepted
Weischadle’s signed request for dismissal without prejudice and
entered it the same day without ruling on the merits of the
special motion to strike.
4. The Charboneau Defendants’ Motion for Costs and
Attorney Fees
The Charboneau defendants offered to forego attorney fees
and costs if Weischadle would sign a release of claims, which
Charboneau later explained in his declaration was intended to
4
preclude Weischadle from refiling her “frivolous” complaint.
When Weischadle refused the offer, the Charboneau defendants
moved for attorney fees and costs pursuant to section 425.16,
subdivision (c), arguing they would have prevailed on their
special motion to strike had Weischadle not dismissed her case.
Weischadle, still representing herself, opposed the motion,
arguing the Charboneau defendants were not the prevailing
parties because the court never ruled on the merits of the special
motion to strike. Weischadle did not challenge the amount
sought for attorney fees or costs.
Finding the Charboneau defendants would have prevailed
on the merits of their special motion to strike had Weischadle not
dismissed her complaint, the court granted the Charboneau
defendants’ motion in part, awarding them attorney fees of
$38,550 and costs of $2,498.55.
Weischadle filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
3
Section 425.16 (the anti-SLAPP statute) provides, “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).)
3
SLAPP is an acronym for “strategic lawsuit against public
participation.” (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 413, fn. 2.)
5
In ruling on a motion under section 425.16, the trial court
engages in a two-step process. (Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 884.) “‘Initially, the moving defendant
bears the burden of establishing that the challenged allegations
or claims “aris[e] from” protected activity in which the defendant
has engaged. [Citations.] If the defendant carries its burden, the
plaintiff must then demonstrate its claims have at least “minimal
merit.”’ [Citation.] If the plaintiff fails to meet that burden, the
court will strike the claim.” (Wilson, at p. 884; accord, Monster
Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)
Subject to certain exceptions not pertinent to the case at
bar, “a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney’s fees and costs.” (§ 425.16,
subd. (c)(1).) This fee-shifting provision is “intended to
discourage such strategic lawsuits against public participation by
imposing the litigation costs on the party seeking to ‘chill the
valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances.’” (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1131.)
The trial court retains jurisdiction to award attorney fees
pursuant to section 425.16, subdivision (c)(1), even when a
plaintiff voluntarily dismisses the complaint while a special
motion to strike is pending. (Tourgeman v. Nelson & Kennard
(2014) 222 Cal.App.4th 1447, 1456-1457.) In that circumstance,
to award fees the court must adjudicate the merits of the special
motion to strike as if the complaint had not been dismissed and
find the party seeking fees would have been the prevailing party
on the motion. (Ibid.; see Law Offices of Andrew L. Ellis v. Yang
(2009) 178 Cal.App.4th 869, 879 [“the anti-SLAPP statute . . .
anticipates circumstances in which parties dismiss their cases
6
while motions to strike are pending[;] [i]n such circumstances,
the trial court is given the limited jurisdiction to rule on the
merits of the motion in order to decide if it should award attorney
fees and costs to the defendant”]; Pfeiffer Venice Properties v.
Bernard (2002) 101 Cal.App.4th 211, 217 [“because a defendant
who has been sued in violation of his or her free speech rights is
entitled to an award of attorney fees, the trial court must, upon
defendant’s motion for a fee award, rule on the merits of the
SLAPP motion even if the matter has been dismissed prior to the
hearing on that motion”]; Liu v. Moore (1999) 69 Cal.App.4th 745,
752 [same].)
When the challenge to the court’s ruling is directed to the
statutory entitlement to attorney fees, our review of that legal
issue is de novo. (Monster Energy Co. v. Schechter, supra,
7 Cal.5th at p. 788; Ellis Law Group, LLP v. Nevada City Sugar
Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 252-253.) The
amount of attorney fees and costs awarded is reviewed for abuse
of discretion. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1130.)
2. The Court Did Not Err in Granting the Charboneau
Defendants’ Motion for Attorney Fees and Costs
In her opening brief Weischadle contends reversal is
required because (1) she lost her ability to earn a living after the
accident and is unable to pay the amount ordered; (2) she relies
on social security benefits, which are exempt from enforcement
under the federal Social Security Act; and (3) the Charboneau
defendants did not prevail on a special motion to strike a
complaint that had already been dismissed. None of these
arguments has merit.
As to her inability to pay the amount awarded, Weischadle
cites no evidence to support that statement, let alone any
7
authority that inability to pay, if it were factually supported,
would justify reversal. Likewise, her alleged reliance on Social
Security benefits, which may or may not be exempt in an
enforcement action, is not at issue in this appeal. The question
presented is whether the trial court erred in granting the
Charboneau defendants’ request for attorney fees. To this point
Weischadle offers but a single assertion: The Charboneau
defendants did not prevail on their special motion to strike
because she dismissed her complaint before the court ruled on
her motion. As discussed, if the court determines, as it did in
connection with the attorney fee hearing in the case at bar, that
the motion would have been granted but for the dismissal,
attorney fees and costs are statutorily authorized pursuant to
section 425.16, subdivision (c). (Tourgeman v. Nelson & Kennard,
supra, 222 Cal.App.4th at pp. 1456-1457; Law Offices of
Andrew L. Ellis v. Yang, supra, 178 Cal.App.4th at p. 879;
Pfeiffer Venice Properties v. Bernard, supra, 101 Cal.App.4th at
4
p. 217.)
Although Weischadle did not contend in her opening brief
that the court had erred in finding the special motion to strike
meritorious, in her reply brief she argues the fee award was
improper because her complaint involved a private matter, not a
public issue. And, she continues, her complaint alleged illegal
activity—fraud and suppression of evidence—that is not
4
Weischadle’s insistence the court’s tentative ruling
disclosed during the initial hearing on the motion had no legal
effect, while certainly a correct statement of law, is beside the
point. The court explicitly found the motion meritorious when
ruling on the attorney fee request, a prerequisite to ordering
attorney fees under section 425.16, subdivision (c).
8
protected activity under section 425.16. Because Weischadle did
not raise these arguments in her opening brief, they are forfeited.
(See United Grand Corp. v. Malibu Hillbillies, LLC (2019)
36 Cal.App.5th 142, 158 [“[f]airness militates against allowing an
appellant to raise an issue for the first time in a reply brief
because consideration of the issue deprives the respondent of the
opportunity to counter the appellant by raising opposing
arguments”]; Nolte v. Cedars-Sinai Medical Center (2015)
236 Cal.App.4th 1401, 1409-1410 [“‘[a]rguments presented for the
first time in appellant’s reply brief are considered waived’”]; see
Habitat & Watershed Caretakers v. City of Santa Cruz (2013)
213 Cal.App.4th 1277, 1292, fn. 6.) They are also without merit.
Weischadle’s contention her lawsuit involved a private
matter and not a public issue is misplaced. When the allegations
arise from statements, writings or pleadings in connection with
civil litigation, there is no requirement that the litigation concern
a matter of public interest. (§ 425.16, subd. (e)(1) & (2); Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1123; see Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408-409
[the anti-SLAPP statute protects not only litigants, but their
attorneys’ litigation-related statements; “‘[u]nder the plain
language of section 425.16, subdivision (e)(1) and (2), as well as
the case law interpreting those provisions, all communicative
acts performed by attorneys as part of their representation of a
client in a judicial proceeding or other petitioning context are
per se protected as petitioning activity by the anti-SLAPP
statute’”].)
Similarly, to the extent her description of the Charboneau
defendants’ conduct, alleged in her complaint as “illegal and
criminal,” is intended to suggest section 416.25 does not apply
9
under Flatley v. Mauro (2006) 39 Cal.4th 299, 320, she is
mistaken. If the speech or protected activity is conceded or
shown to be illegal as a matter of law, such speech or petition
activity will not support the special motion to strike. (Ibid. [if
“the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was
illegal as a matter of law, the defendant is precluded from using
the anti-SLAPP statute to strike the plaintiff’s action”]; accord,
Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 965; see Gerbosi v.
Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
446 [“[w]e understand Flatley to stand for this proposition: when
a defendant’s assertedly protected activity may or may not be
criminal activity, the defendant may invoke the anti-SLAPP
statute unless the activity is criminal as a matter of law”].)
However, when, as here, the conduct is neither conceded to be
illegal nor is illegal as a matter of law, the allegations of illegality
relate to the second prong of the anti-SLAPP analysis, not the
first. (Flatley, at p. 316 [if “a factual dispute exists about the
legitimacy of the defendant’s conduct, it cannot be resolved
within the first step but must be raised by the plaintiff in
connection with the plaintiff’s burden to show a probability of
prevailing on the merits”]; Seltzer, at p. 965 [same].) The court
did not err in concluding the anti-SLAPP statute applied and
that the Charboneau defendants had satisfied the first prong of
the anti-SLAPP analysis.
In light of the absolute privilege afforded by Civil Code
5
section 47 for litigation-related activities, it is difficult to
5
Civil Code section 47 provides in part: “A privileged
publication or broadcast is one made: [¶] . . . [¶] (b) In any
(1) legislative proceeding, (2) judicial proceeding, (3) in any other
10
conceive how Weischadle could have carried her burden on the
second prong to demonstrate her action had even minimal merit.
Nevertheless, we need not address this aspect of the anti-SLAPP
analysis. By failing to challenge the court’s implied finding that
she had not shown her action had minimal merit, Weischadle has
forfeited that contention on appeal. (Delta Stewardship Council
Cases (2020) 48 Cal.App.5th 1014, 1075 [“It is well settled that a
trial court’s judgment is presumed correct and conclusory claims
of error are deemed to be without foundation and require no
discussion by the reviewing court. [Citation.] It is not our place
to construct theories or arguments to undermine the judgment
and defeat the presumption of correctness. When an appellant
fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point
as forfeited”]; Badie v. Bank of America (1998) 67 Cal.App.4th
779, 784-785.)
DISPOSITION
The order granting in part the Charboneau defendants’
motion for attorney fees and costs pursuant to section 425.16,
subdivision (c), is affirmed. The Charboneau defendants are to
recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J
official proceeding authorized by law, or (4) in the initiation or
course of any other proceeding authorized by law and reviewable
pursuant to Chapter 2 (commencing with Section 1084) of Title 1
of Part 3 of the Code of Civil Procedure, except as follows . . . . ”
11