Filed 6/29/22 Kravchuk v. Collinsworth, Specht, Calkins & Giampaoli CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This action arose out of a failed San Jose residential sales transaction involving appellant Mariia Kravchuk, as buyer, and Taylor Morrison of California, LLC (Taylor), as developer/seller. Respondent Collinsworth, Specht, Calkins & Giampaoli, LLP (CSCG) is a law firm that represented Taylor at or about the time the sales transaction failed. Defendant James M. Ganion (Ganion) is an attorney affiliated with CSCG. Kravchuk filed suit on January 24, 2018, alleging one cause of action for breach of written contract against Taylor, only. Two and one-half years later, on July 27, 2020, Kravchuk filed a second amended complaint. In that pleading, she alleged seven causes of action, naming Taylor and eight additional defendants, including CSCG and Ganion.

On October 9, 2020, CSCG filed a special motion to strike Kravchuk’s second amended complaint under Code of Civil Procedure section 425.16 (special motion to strike, or anti-SLAPP motion).[1] An anti-SLAPP motion is resolved through a two-step process in which the court decides (1) if the defendant has shown that the challenged claim arose out of his or her constitutionally protected petitioning or speech activity; and (2) assuming the defendant has met his or her burden to show he or she was engaged in protected activity, whether the plaintiff has established a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Before CSCG’s anti-SLAPP motion could be heard, on November 30, 2020, Kravchuk filed a third amended complaint alleging the same seven causes of action and naming all nine defendants. After considering the papers and Kravchuk’s opposition, the trial court granted the special motion to strike the second amended complaint on January 28, 2021. The court concluded that the claims alleged against CSCG arose out of constitutionally protected activity, and that Kravchuk failed to meet her burden of showing a probability of prevailing on the claims.

On appeal, Kravchuk contends that the trial court erred in granting the special motion to strike the second amended complaint. Her primary contention is that her filing of the third amended complaint—after the filing of the anti-SLAPP motion but before it was heard by the court—rendered the motion moot. We conclude that the special motion to strike the second amended complaint was not rendered moot by the filing of the third amended complaint. We will affirm the order dismissing the third through seventh causes of action alleged against CSCG in the second amended complaint.

I. PROCEDURAL BACKGROUND

A. Second Amended Complaint

On July 27, 2020, Kravchuk, as a self-represented litigant, filed her second amended complaint, alleging seven causes of action and naming nine defendants: Taylor; Joyce Lee; Ganion; law firm CSCG; law firm Ulich Balmuth Fisher LLP (UBF); First American Financial Corporation (First American); Olivia Trelles; Tina Longo; and Taylor Beck. The causes of action alleged were (1) breach of contract (against Taylor); (2) breach of implied covenant of good faith and fair dealing (against Taylor); (3) deceit (against all defendants); (4) civil conspiracy (against all defendants except First American and Trelles); (5) aiding and abetting deceit (against all defendants); (6) intentional interference with economic advantage (against all defendants except Taylor); and (7) negligent interference with economic advantage (against all defendants except Taylor).

As it pertains to the present appeal, Kravchuk alleged as follows:

Ganion was a former partner of the law firm UBF and is a current partner of the law firm CSCG.

On March 9, 2017, Kravchuk and Taylor entered into a contract (the Agreement) to purchase 73 Montecito Vista Drive, Unit #1 in San Jose (the Property) for $669,745. Under the terms of the Agreement, the date of closing was “ ‘following substantial completion of the Home on a date to be specified in a notice to be provided by Seller to Buyer. Substantial completion of the Home shall be deemed to have occurred when a certificate of occupancy (or its equivalent) has been issued.’ ” (Bold italics in second amended complaint.) After the City of San Jose (City) rejected repeated attempts by Taylor to obtain a Certificate of Occupancy (hereafter, COO) for the Property, a COO was issued on January 31, 2018. Before that date, Taylor “engaged in series of malicious actions towards [Kravchuk] by scheduling ‘New Home Orientations’ [(walk-throughs)] and dates for ‘Close of Escrow’ [(COE’s)] for [the] Property which should have occurred after (and not before) the issuance of [a] Certificate of Occupancy for [the] Property.” There were six walk-throughs and COE’s that Kravchuk claimed were scheduled wrongfully by Taylor, between October and December 2017. Kravchuk was ready, willing and able to close escrow, but Taylor sold the Property to a third party on January 25, 2018, for $832,842, or $163,097 more than the price in the Agreement.

In connection with her claim for deceit, Kravchuk alleged that Ganion, CSCG, and Ulich “attempted to wrongfully compel [Kravchuk] to close [e]scrow on [the] Property by sending threats to [Kravchuk] and wrongfully stating that [the] Property was (while it was not) allowed to be used and occupied and that [Kravchuk] would lose her deposit if [she] would not obey [Taylor’s] . . . demands and that [she] would be penalized for each day of not closing [e]scrow in the amount of $1,000 a day.” Kravchuk made similar allegations in support of her civil conspiracy and aiding and abetting deceit claims. Kravchuk alleged that Ganion had several written communications between November 2017 and January 2018 (discussed below) in which he allegedly attempted without justification to compel Kravchuk to prematurely close escrow, and falsely claimed that a COO for the Property had issued and that Kravchuk was in default.

B. Special Motion to Strike

On October 9, 2020, CSCG filed a special motion to strike the third through seventh causes of action of the second amended complaint under section 425.16, subdivision (b).[2] CSCG asserted that each of the claims alleged against it arose from its constitutionally protected right of petition or free speech and were communications governed by the litigation privilege under Civil Code section 47, subdivision (b). CSCG argued that the allegations made against Ganion (and thus against CSCG) were that he had various, constitutionally protected, written communications between November 2017 and January 2018 with Kravchuk’s then-attorney, Alex Gortinsky, concerning her performance under the Agreement.[3]

Kravchuk filed “ ‘limited’ opposition” to CSCG’s anti-SLAPP motion. (Capitalization omitted.) She argued that the motion should be denied as moot, because the arguments by CSCG pertained to the second amended complaint, and the motion had been superseded by Kravchuk’s filing of the third amended complaint on November 30, 2020.

The special motion to strike was called for hearing on January 28, 2021. The record reflects that there were no appearances and that no party contested the court’s tentative ruling. The court adopted the tentative ruling at that time. The court granted the motion. It concluded that CSCG had met its threshold burden under the anti-SLAPP statute of showing that the second amended complaint arose out of constitutionally protected activity. The court observed that each of the five claims asserted in Kravchuk’s second amended complaint against CSCG alleged that it had “attempted to wrongfully compel [Kravchuk] to close [e]scrow on [the] Property by sending threats to [Kravchuk] and wrongfully stating that [the] Property was (while it was not) allowed to be used and occupied and that [Kravchuk] would lose her deposit [if Kravchuk] would not obey [Taylor’s] . . . demands and that [Kravchuk] would be penalized for each day of not closing [e]scrow in the amount of $1,000 a day.”

In its order, the court reviewed the communications by Ganion that were alleged by Kravchuk to be actionable. Ganion’s communications, as alleged in the second amended complaint—most of which, Kravchuk alleged, improperly attempted to compel her to close escrow even though no COO had issued—may be summarized as follows:[4]

1. 11/17/17 Ganion [Ulich] letter that was a notice of default in which it was claimed that a COO had issued, and it was asserted that Taylor was entitled to extension fees. Kravchuk alleged that Ganion “fraudulently attempted to compel” Kravchuk to close escrow.
2. 12/11/17 Ganion [Ulich] letter requesting that Kravchuk close escrow, “fraudulently claiming” that a COO had issued, and stating that Kravchuk’s deposit had been forfeited.
3. 12/18/17 Ganion [Ulich] e-mail “fraudulently claiming” a COO had issued and claiming that Kravchuk was responsible for $48,000 in penalties.
4. 12/19/17 Ganion [Ulich] e-mail attempting to compel Kravchuk to close escrow, “fraudulently claiming” that a COO had issued, and stating that if Kravchuk didn’t “demonstrate an immediate desire and decision to purchase the home, . . . then [Taylor] . . . will sell it to someone else.”
5. 12/21/17 Ganion [Ulich] e-mail and letter “fraudulently claiming” that a COO had issued, demanding that Kravchuk deposit the full purchase price, and advising that, otherwise, Taylor would sell the Property to a third party.
6. 12/21/17 Ganion [Ulich] letter (second letter) “fraudulently claiming” that a COO had issued and demanding that Kravchuk deposit the full purchase price and close escrow by 12/22/17.
7. 1/31/18 Ganion [CSCG] e-mail rejecting Kravchuk’s 12/4/17 demand for arbitration, advising that because the escrow had been canceled, “[t]here’s nothing to arbitrate.”

The trial court observed, quoting section 425.16, subdivision (e)(2), that “ ‘any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law’ is subject to a special motion to strike. [Citation.]” Therefore, “communications in connection with anticipated litigation” are protected activity. (See Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263.) The trial court concluded that “Ganion’s communications with [Kravchuk]’s counsel were unquestionably made in preparation or anticipation of litigation contemplated in good faith and under serious consideration, and those communications are directly related to the action, concerning the subject of the dispute. [Citation.]” The court found therefore that CSCG had satisfied its threshold showing that the causes of action in the second amended complaint arose out of protected activity.

The trial court observed further that Kravchuk had not presented any evidence that showed she had a probability of prevailing on the merits. And it rejected Kravchuk’s argument that her filing a third amended complaint after CSCG’s anti-SLAPP motion was served and filed rendered the motion to strike the second amended complaint moot. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1294 [plaintiff cannot amend complaint in response to special motion to strike to circumvent a ruling on the motion] (Salma).) The court therefore granted CSCG’s special motion to strike and dismissed the third through seventh causes of action of the second amended complaint alleged against CSCG.

The court denied CSCG’s request for attorney fees and costs in bringing the motion sought under section 425.16, subdivision (c)(1). It concluded that the law firm, through its members, was representing itself in connection with the proceedings and was therefore not entitled to recover attorney fees. (See Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1211.)

Kravchuk filed a timely notice of appeal from the order granting CSCG’s anti-SLAPP motion.[5]

II. DISCUSSION

A. Special Motions to Strike

A SLAPP suit is one in which a plaintiff “seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) SLAPP suits may be disposed of summarily by a special motion to strike under section 425.16, which is “a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The 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).) The Legislature has directed that the language of the statute be “construed broadly.” (§ 425.16, subd. (a).)

Subdivision (e)(2) of section 425.16 identifies one general category of protected activities of petition or free speech—one that is at issue here—namely, “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” Communications that are made in anticipation of litigation are embraced by this provision. (Salma, supra, 161 Cal.App.4th at p. 1285.) Such communications are protected activity under the anti-SLAPP statute “even though they occur before litigation is actually pending. [Citations.]” (Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1413.) Pre-suit demand letters are ordinarily considered protected activity under the anti-SLAPP statute. (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293.)

“Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

B. No Error by the Trial Court

We initially observe that in her appellate briefs, Kravchuk does not challenge the substantive aspect of the trial court’s order granting CSCG’s special motion to strike the second amended complaint, i.e., she does not challenge the court’s conclusions that (1) the claims arose out of CSCG’s constitutionally protected activity, and (2) Kravchuk failed to meet her burden of showing a probability of success. She has therefore abandoned any such claim of error. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.) Kravchuk asserts four procedural reasons supporting her position that the trial court erred in granting CSCG’s anti-SLAPP motion.[6]

1. Mootness

Kravchuk contends—as she did below—that the special motion to strike the second amended complaint was rendered moot by the filing of her third amended complaint. Kravchuk relies on JKC3H8 v. Colton (2013) 221 Cal.App.4th 468 (JKC3H8) in support of her position. We disagree that the filing of the third amended complaint rendered the then-pending anti-SLAPP motion moot.

It is generally the case “ ‘that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]’ [Citation.] ‘Such amended pleading supplants all prior complaints. It alone will be considered by the reviewing court. [Citations.]’ [Citation.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) Thus, the filing of an amended complaint renders moot a pending demurrer to the prior complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 (Sylmar Air Conditioning).)

But these principles do not extend to special motions to strike under some circumstances. If the court dismisses a cause of action under the anti-SLAPP statute, the plaintiff is not entitled to amend his or her pleading. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (Simmons).) As the Simmons court explained, “[a]llowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.” (Ibid.)

In Salma, supra, 161 Cal.App.4th 1275, the court addressed a different scenario. There, the cross-complaint was amended after the cross-defendant’s filing of a special motion to strike two claims in the original pleading but before the court ruled on the motion. (Id. at p. 1294.) The cross-defendant filed a second motion to strike the same claims in the amended pleading; the trial court granted the first motion to strike the conversion claim but did not strike the same claim in the amended cross-complaint. (Id. at pp. 1279-1280.) The Salma court reversed in part, holding that “Simmons [supra, 92 Cal.App.4th 1068] supports automatic dismissal of the amended claims. Requiring the trial court to analyze the amended claims under section 425.16 simply because the claims were amended before the court ruled on the first motion to strike would cause all of the evils identified in Simmons and would undermine the legislative policy of early evaluation and expeditious resolution of claims arising from protected activity.” (Id. at p. 1294; see also Sylmar Air Conditioning, supra, 122 Cal.App.4th at pp. 1055-1056 [trial court did not err in addressing merits of special motion to strike and awarding movant attorney fees; filing of amended complaint after filing of motion but before the hearing did not render motion moot].)

Summarizing the principles of Salma and Simmons, the JKC3H8 court stated that “an amended complaint [also] render[s] moot an anti-SLAPP motion directed to a prior complaint, with the following caveat: A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion. [Citations.]” (JKC3H8, supra, 221 Cal.App.4th at pp. 477-478; see also Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 897 [“[c]ourts have routinely concluded that plaintiffs may not be permitted to evade the intent of the anti-SLAPP statute by amendment once faced with an anti-SLAPP motion”].) But in JKC3H8, because the amended complaint was filed before the special motion to strike the original complaint was filed, the appellate court held that the motion was moot because “there was no pending anti-SLAPP motion at the time of the amendment.” (JKC3H8, supra, at p. 478.)

Here, the special motion to strike the third through seventh causes of action of the second amended complaint was filed by CSCG on October 9, 2020. Kravchuk filed her third amended complaint on November 30, 2020, alleging the same five causes of action against CSCG. The hearing on the special motion to strike occurred on January 28, 2021. The filing of the third amended complaint did not render CSCG’s special motion to strike the second amended complaint moot. (JKC3H8, supra, 221 Cal.App.4th at pp. 477-478.)

2. Timeliness of Motion/Defective Notice

As her second argument, Kravchuk contends that the anti-SLAPP motion was not timely filed. This argument is founded on her position that CSCG’s original notice of the anti-SLAPP motion, served on October 9, 2020, was defective because it did not indicate the date and time the matter would be heard. Kravchuk argues that, because this original notice was defective, she was served “for the first time [original italics]” on December 2, 2020, when CSCG served an amended notice of motion specifying the date and time of the hearing. Because (Kravchuk argues) the amended notice of motion was served 128 days after the filing of the second amended complaint (July 27, 2020), the anti-SLAPP motion was untimely under subdivision (f) of section 425.16. That statute provides that “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”[7] (Ibid.)

Kravchuk filed her opposition to the special motion to strike on January 7, 2021—after CSCG had filed its notice of motion (October 9, 2020) and its amended notice of motion (December 2, 2020). She raised no objection to the sufficiency of the notice or to the timeliness of the filing of the motion in her opposition. Kravchuk’s failure to object below to the allegedly defective notice and untimely motion precludes her from raising the challenges here.

“ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, original italics.) Although the failure to raise an objection in the trial court is often referred to as a waiver, strictly speaking, it is a forfeiture of the right to assert the objection on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, superseded on other grounds by statute as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)

This forfeiture rule applies to unasserted procedural challenges to notices of motions. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) “A party who appears at the hearing on a motion and contests the motion on the merits without objecting to a defect or irregularity in the notice of motion ordinarily is deemed to waive the defect or irregularity, including the failure to serve a notice of motion the prescribed number of days before the hearing. Courts have applied this rule where the party failed to object at the hearing [citations], where the objection was deemed inadequate [citations], and where the party may have objected but failed to show prejudice resulting from the defective notice [citations]. Courts applying the waiver rule generally have concluded that the party’s appearance at the hearing and opposition on the merits showed that the notice ‘served its purpose,’ despite any defect [citations], and that any defect in the notice did not prejudice the party’s preparation for the hearing and opportunity to be heard. [Citations.]” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 342-343 (Arambula).)

Thus, in In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826 (Falcone & Fyke), a panel of this court considered an appellant’s challenge to an order imposing sanctions against her under section 128.7. The appellant asserted on appeal that she had received insufficient notice because, although she was served with the motion 21 days prior to the hearing, because the service was by mail, her safe harbor period should have been extended by five days. (Falcone & Fyke, supra, at p. 826.) The appellant failed to assert the notice objection below, and this court held that she had therefore waived the challenge, concluding “[the appellant] had ample opportunity to raise the objection below. Her failure to do so deprived [the respondent] of the chance to argue the issue or cure the alleged error and prevented the trial court from making any ruling on the point.” (Ibid.)

Falcone & Fyke is on point. The circumstances that are the bases for Kravchuk’s challenges to the notice of motion and its timeliness here were known to her well before she filed her opposition. Contrary to Kravchuk’s claim, she did not raise any challenge in her opposition papers.[8] Nor did she appear at the hearing to argue the matter. Kravchuk has therefore forfeited the contentions that the original notice of motion served October 9, 2020, was defective and that therefore the anti-SLAPP motion was untimely. (See Falcone & Fyke, supra, 164 Cal.App.4th at p. 826; Arambula, supra, 128 Cal.App.4th at pp. 342-343.)

3. Order’s Allegedly Contradictory Findings

Kravchuk argues that the trial court’s ruling that the anti-SLAPP motion was not moot was based upon contradictory findings. She contends that the court, on the one hand, denied CSCG’s request for attorney fees, while on the other hand, it held that “CSCG’s Motion was not moot because CSCG is entitled to attorney’s fees.” Kravchuk is correct that the trial court held that CSCG, because it was representing itself in the case, was not entitled to recover its attorney fees under section 425.16, subdivision (c)(1). She, however, is incorrect that the trial court found that CSCG was entitled to attorney fees.

Kravchuk’s argument is based upon the trial court’s reliance in part on Sylmar Air Conditioning, supra, 122 Cal.App.4th 1049, where, as discussed above, the court rejected the cross-complainant’s contention that its filing of an amended cross-complaint after being served with a special motion to strike rendered the motion moot. (Id. at pp. 1055-1056.) The appellate court held that “the determination of [cross-defendant’s] claim for attorney fees and costs was not moot and the trial court did not err in addressing the merits of the SLAPP motion.” (Id. at p. 1056.) The trial court below quoted this passage from Sylmar Air Conditioning in its order, and it is the alleged basis for Kravchuk’s claim that the trial court held that CSCG was entitled to attorney fees. A reading of the trial court’s order does not support Kravchuk’s position. In Sylmar Air Conditioning, the trial court ruled on both the merits of the anti-SLAPP motion and on the cross-defendant’s request for attorney fees (id. at p. 1053), and the appellate court concluded that the filing of an amended pleading did not moot the motion and thus preclude a ruling on its merits (id. at p. 1056). Sylmar Air Conditioning does not support Kravchuk’s apparent premise that an anti-SLAPP motion, where an amended pleading is filed after service but before a hearing on the motion, is rendered moot if (as here) the movant, albeit successful in the motion, is legally not entitled to recover attorney fees.

4. Impact of Order Upon Order Sustaining Demurrer

Lastly, Kravchuk contends that the order granting CSCG’s special motion to strike the second amended complaint effectively “overturned” another ruling by a different judicial officer in the case. She argues that the dismissal of the second amended complaint as to CSCG upon granting the anti-SLAPP motion on January 28, 2021, was inconsistent with the prior ruling of November 12, 2020, sustaining the demurrer of Taylor to the second amended complaint and granting leave to amend. Kravchuk contends that, under Salma, supra, 161 Cal.App.4th at pages 1293-1295, when a complaint (or cross-complaint) is dismissed under the anti-SLAPP statute, the plaintiff (or cross-complainant) has no right to amend the claim and automatic dismissal of the claim in the amended pleading is appropriate.

Kravchuk’s argument has no merit. As we have held, ante, the filing of Kravchuk’s third amended complaint on November 30, 2020, did not render moot CSCG’s previously-filed special motion to strike the second amended complaint. (JKC3H8, supra, 221 Cal.App.4th at pp. 477-478.) Further, the November 12, 2020 order on Taylor’s demurrer did not address the sufficiency of the pleading as to CSCG, decide CSCG’s pending anti-SLAPP motion, or otherwise rule that amending the second amended complaint as to defendant CSCG was appropriate.[9]

There was no procedural error in connection with the trial court’s order granting CSCG’s special motion to strike the second amended complaint.

III. DISPOSITION

The January 28, 2021 order granting CSCG’s special motion to strike the third through seventh causes of action of the second amended complaint is affirmed.

_____________________________________

Bamattre-Manoukian, acting p.J.

WE CONCUR:

__________________________

DANNER, J.

__________________________

WILSON, J.

Kravchuk v. Collinsworth, Specht, Calkins & Giampaoli, LLP

H048857

[1] “SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

Further statutory references are to the Code of Civil Procedure unless otherwise stated.

2 CSCG filed a motion to augment the record to include two declarations and a request for judicial notice that it filed below in conjunction with its special motion to strike the second amended complaint. The motion to augment also requested that the record include a notice of appeal filed by Kravchuk from the court’s judgment of dismissal after the granting of CSCG’s special motion to strike the third amended complaint, as well as a proof of service by mail of the second amended complaint. We grant CSCG’s November 29, 2021 motion to augment the record.

[3] Taylor filed a demurrer to portions of the second amended complaint. CSCG was not a party to that demurrer. On November 12, 2020—over one month after CSCG filed its special motion to strike—the court sustained with leave to amend Taylor’s demurrer to two causes of action and overruled the demurrer as to one cause of action.

[4] Ganion stated in a reply declaration that he became a partner of CSCG on January 16, 2018, and he had no affiliation with that firm prior to that date. We have, in summarizing Ganion’s communications that Kravchuk alleged were actionable, identified, according to the documents, the law firm with which Ganion was affiliated at the time the communication was sent. As seen from this summary, only one communication—occurring after Taylor terminated the Agreement—was made while Ganion was a CSCG partner.

[5] On March 3, 2021, Kravchuk filed a motion for reconsideration (see § 1008) of the court’s order granting CSCG’s special motion to strike. On July 9, 2021, the court denied the motion for reconsideration. Thereafter, on July 14, 2021, Kravchuk filed a purported amended notice of appeal, identifying the order denying her motion for reconsideration as the order from which the appeal was taken. (See Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1680 [order denying motion for reconsideration is not an appealable order].) Kravchuk does not present argument in her briefs concerning the court’s order denying the motion for reconsideration. She has thus abandoned any appeal of that order. (See Tanner v. Tanner (1997) 57 Cal.App.4th 419, 422, fn. 2 [appellate court treats as partial abandonment of appeal an appellant’s failure to challenge in opening brief an order specified in notice of appeal].)

[6] Kravchuk has filed a motion to augment the record to include, inter alia, documents relevant to her procedural challenges to the order. The documents consist of a proof of service of the third amended complaint (exhibit 1), CSCG’s amended notice of special motion to strike the third amended complaint (exhibit 2), a minute order relative to an unrelated motion for sanctions by Taylor (exhibit 3), and a notice of amended appeal by Kravchuk of the order denying her motion for reconsideration (exhibit 4). We grant Kravchuk’s motion to augment the record as to the documents attached to the motion as exhibits 1, 2, and 4 and deny the motion as to exhibit 3.

[7] CSCG in its respondent’s brief acknowledges that when it served and filed the motion, it did not include the date and time of the hearing in the notice of motion. CSCG explains that this omission was the result of the superior court’s change in procedure as a result of the COVID-19 global pandemic. It asserts that “per the trial court’s operative procedures,” it was required to file the motion without indicating the date and time of the hearing. In support of this position, CSCG has filed a request for judicial notice of a notice and an order of the superior court issued in response to the COVID-19 pandemic, and superior court local rules. Because we conclude that Kravchuk has forfeited her challenge to the notice of motion and to the timeliness of the filing of the motion, we will deny CSCG’s request for judicial notice. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [judicial notice denied for materials not relevant to issues decided on appeal].)

[8] We requested that the parties submit supplemental letter briefs addressing two questions: (1) whether Kravchuk asserted before the trial court that the notice of motion was defective; and (2) assuming Kravchuk did not raise the issue below, whether it was waived (forfeited) on appeal. We have received and considered the parties’ letter briefs. Kravchuk argues in her supplemental letter brief that if her opposition below is “construed broadly,” she did raise the issue that the notice of motion was not timely. We disagree. The portion of the opposition that Kravchuk relies on concerned her argument below that because she filed the third amended complaint on November 30, 2020, before the anti-SLAPP motion was heard, the motion was moot. Although she did refer to the fact that an amended notice of “Motion ‘with’ date and time was served by CSCG on Plaintiff on December 2, 2020,” Kravchuk did not argue that (1) the original October 9, 2020 notice was defective because it did not include the date and time of the hearing, or (2) the anti-SLAPP motion was untimely under section 425.16, subdivision (f). Kravchuk asserts further that, in the event it is determined she did not preserve the contentions by asserting them below, an appellate court’s application of the waiver (forfeiture) doctrine is not automatic; she therefore requests that this court exercise its discretion to consider her unpreserved contentions here. We decline that request.

[9] As its final argument in response to Kravchuk’s opening brief, CSCG contends that this appeal is moot because on May 27, 2021, the court granted a second special motion to strike filed by CSCG, this time concerning the claims alleged against CSCG in the third amended complaint. Kravchuk subsequently filed a notice of appeal from the judgment entered on that order. We are aware that an appeal is presently pending before this court on that matter. (See Kravchuk v. Collinsworth, Specht, Calkins & Giampaoli, LLP, H049560.) CSCG’s makes this mootness argument, notwithstanding the circumstance that the underlying procedural facts (i.e., the order granting the second anti-SLAPP motion) existed months before any briefs were filed here. CSCG’s claim of mootness was properly the subject of a motion to dismiss the appeal preceding briefing. (See, e.g., Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 864.) We decline to find the appeal in this instance moot.