Opinion
E077638
01-17-2023
LAURA J. O'KANE, Plaintiff and Appellant, v. MARILYN BESSEY, Defendant and Respondent
Skousen Law, Robert J. Skousen; Higgs Fletcher Mack, and Rachel Moffitt Garrard for Plaintiff and Appellant. Lurie, Zepeda, Schmalz, Hogan &Martin, and James J. Finsten for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. PSC2004249. John G. Evans, Judge.
Skousen Law, Robert J. Skousen; Higgs Fletcher Mack, and Rachel Moffitt Garrard for Plaintiff and Appellant.
Lurie, Zepeda, Schmalz, Hogan &Martin, and James J. Finsten for Defendant and Respondent.
OPINION
MENETREZ J.
Attorney Laura O'Kane sued Michele McKee (O'Kane's former law partner) and Marilyn Bessey (a court-appointed administrator of an estate) for conversion, fraud, and conspiracy to commit conversion and fraud. O'Kane claimed that Bessey wrongly petitioned to have the probate court distribute legal fees the estate owed O'Kane &McKee LLP (the O&M law firm) to a new law firm of McKee's instead. Bessey filed a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. (Undesignated statutory references are to the Code of Civil Procedure.) The trial court granted the motion, and O'Kane appeals. O'Kane also appeals from the court's denial of her motion to conduct limited discovery under subdivision (g) of section 425.16 (section 425.16(g)). We affirm.
"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
BACKGROUND
In 2009, O'Kane and McKee formed the O&M law firm. In February 2018, O'Kane and McKee stopped practicing law together. McKee formed The McKee Law Firm (the McKee firm).
A. The Estate and Probate Proceedings
Thomas L. Robinson died in January 2014. He was survived by four children, who were his only heirs. In January 2015, the court appointed Bessey as co-administrator of the Estate of Thomas L. Robinson (the estate) along with Shawn Robinson, one of Thomas's sons. Bessey is a licensed professional fiduciary. Jason Robinson, another son of Thomas's, had petitioned to remove Shawn as sole administrator. The O&M law firm represented Jason. McKee primarily handled the matter. The dispute between Jason and Shawn continued after Bessey's appointment.
Because Thomas Robinson and some of his children have the same last name, we refer to them by their first names. No disrespect is intended.
In January 2017, Bessey, her counsel, the four heirs, and counsel for Jason and Shawn participated in a mediation. McKee appeared on behalf of Jason. The mediation led the parties to enter a settlement agreement, which the probate court approved in May 2017. Pursuant to the agreement, Shawn resigned as co-administrator of the estate and Bessey remained as the sole administrator.
As to legal fees incurred by Jason, the agreement provided: "The Estate shall pay a total of Two Hundred Seventy Thousand Dollars ($270,000) to the O'Kane &McKee LLP client trust account, equivalent to Jason's costs and legal fees incurred since the Court's January 26, 2015 Order."
In February 2018, McKee filed a substitution of attorney form in the probate proceeding, indicating that she would continue representing Jason on behalf of the McKee firm. Jason, McKee, and O'Kane signed the form and consented to the substitution. O'Kane signed as Jason's former attorney.
After receiving notice of the filed substitution of attorney, Bessey's counsel in the probate action directed his staff to remove O'Kane "as counsel of record for [Jason], and replace the O&M Firm with the McKee Law Firm as counsel for [Jason] on [their] master service list." No one requested that the O&M law firm receive special notice in the probate action. O'Kane did not believe that it was necessary to make such a request.
In August 2018, Bessey filed a verified petition for a first and preliminary distribution (the first petition) of some of the estate's assets according to the settlement agreement. In addition to preliminary distributions to the heirs and payments to Bessey and her counsel, Bessey petitioned for "an Order directing [her] to disburse $36,000 to the client trust account of The McKee Law Firm (the successor in interest to O'Kane &McKee LLP) . . . in partial satisfaction of the amount" due. As Jason's attorney, McKee was served with notice of the first petition. O'Kane and the O&M law firm were not.
The court granted the first petition and, among other things, ordered Bessey "to disburse $36,000 from the Estate to the client trust account of The McKee Law Firm, successor to O'Kane &McKee LLP, in partial satisfaction of the terms of the Settlement Agreement." The court served McKee with the order but did not serve O'Kane or the O&M law firm. Bessey complied with the court's order and issued a $36,000 check from the estate payable to the client trust account of the McKee firm.
In February 2019, a lawyer representing the O&M law firm sent a letter to Bessey's counsel instructing that the McKee firm and McKee were not successors in interest to the O&M law firm so no further payments under the settlement agreement should be made to them.
In January 2020, Bessey filed a verified petition for a second preliminary distribution (the second petition) of the estate's assets and payment of fees. As to payment of Jason's legal fees, Bessey sought authorization to fully satisfy the terms of the settlement agreement by disbursing "$234,000 to The McKee Law Firm client trust account." In a footnote, Bessey asserted based on her information and belief "that there are additional attorney lien claimants with claims to portions of the $234,000 to be distributed to the client trust account of the McKee Law Firm, including O'Kane &McKee LLP" and another specified law firm.
As with the first petition, McKee was served with notice of the second petition as Jason's attorney. O'Kane and the O&M law firm were not.
The court granted the second petition. The court ordered Bessey to "disburse $234,000 from the Estate to the client trust account of The McKee Law Firm (for the benefit of that firm, O'Kane &McKee LLP, and [another law firm]), in full satisfaction of the terms of the 2017 Settlement Agreement." The court served McKee with the order as Jason's counsel and did not serve O'Kane or the O&M law firm. Bessey complied with the court's order and transferred $234,000 to the McKee firm's client trust account.
Upon receiving the transfer, McKee issued a $28,000 check to another attorney "for the payment of the balance of his fees." In August 2020, McKee transferred $103,000 to the operating account of the O&M law firm. McKee transferred the remaining $103,000 to the McKee firm's operating account.
B. O'Kane's Lawsuit
In September 2020, O'Kane filed a lawsuit against McKee and the McKee firm, alleging claims for conversion, money had and received, and dissolution of the partnership. Several months later, O'Kane amended the complaint to name Bessey as a defendant and to allege additional claims against McKee. The first amended complaint includes three causes of action against Bessey: conversion, fraud, and conspiracy to commit conversion and fraud.
The conversion cause of action does not list any specific allegations involving Bessey. The allegations instead describe how McKee took $270,000 of O'Kane's property and "converted the same to her own use." The allegations in support of the fraud cause of action describe McKee's conduct in 2008, which induced O'Kane to form the partnership and to contribute $50,000 to it, so that McKee and Bessey could conspire 10 years later to take the $270,000 receivable owed to the O&M law firm under the settlement agreement, which amounted to fraud. For the conspiracy cause of action, O'Kane alleges that Bessey and McKee "knowingly conspired together wrongfully to prevent the payment of the $270,000 to [the O&M law firm] by arranging to have the $270,000 paid not to [the O&M law firm's] client trust account, but rather paid directly to McKee through her law firm." (Capitalization omitted.) All three causes of action incorporate by reference the general allegations in the first amended complaint.
The first amended complaint generally alleges that in the first petition Bessey lied under oath by stating that the McKee firm was the successor in interest of the O&M law firm, which Bessey and her attorneys knew or should have known was false as a matter of law. O'Kane alleges that in the first petition Bessey deliberately lied about succession in order to defraud and to commit an act in furtherance of a conspiracy "to defraud [O'Kane], the creditors of O'Kane &McKee LLP, and O'Kane &McKee LLP, itself." "The preparation and filing, as well as the verification of the [first petition] was also an act by Bessey in furtherance of" that conspiracy. (Capitalization omitted.) In addition, O'Kane generally alleges that Bessey's failure to serve O'Kane or the O&M law firm with notice of the first and second petitions also was an act in furtherance of the conspiracy to convert the $270,000 owed to the O&M law firm in the settlement agreement.
C. Bessey's Anti-SLAPP Motion and Proceedings
Bessey filed an anti-SLAPP motion, seeking to strike the entirety of all three claims alleged against her. She argued that all of the alleged conduct underlying the claims arose from the right of petition under section 425.16, subdivision (e)(1) and (2), all of that conduct was protected by the litigation privilege set forth in Civil Code section 47, subdivision (b), and all three claims lacked merit. She supported the motion by declarations from herself, her attorney in the probate action, and McKee, along with attached filings from the probate proceedings and other supporting documentation.
O'Kane opposed the motion, arguing that the "gravamen" of the claims against Bessey concerned "the diversion of the settlement proceeds" and did not arise from protected communications under section 425.16. (Capitalization and boldface omitted.) O'Kane also argued that orders approving the first and second petitions were void for lack of proper notice, thus rendering "McKee's conversion of the $270,000 . . . a wrongful act." O'Kane supported her opposition with a declaration from herself and an attorney retained by O'Kane and the O&M law firm in 2018.
O'Kane initially opposed the anti-SLAPP motion on the basis that the court order allowing O'Kane to file the first amended complaint was void because McKee had filed for bankruptcy and the bankruptcy stay applied to Bessey too. The court rejected the argument and allowed O'Kane leave to file a brief on the merits.
Two days after briefing on the anti-SLAPP motion was completed and five days before a May 12, 2021, scheduled hearing date on that motion, O'Kane moved under section 425.16(g) to conduct limited discovery to depose Bessey, her counsel in the probate action, and McKee and to obtain documents from each of them "relating to the elements of conspiracy." O'Kane argued that the hearing on the anti-SLAPP motion should be continued to allow her to conduct discovery. The hearing for the discovery motion was set for July 14, 2021.
Bessey opposed the motion, arguing, among other things, that the motion was not timely because it was filed after briefing on the anti-SLAPP motion was completed.
At the May 12, 2021, hearing on the anti-SLAPP motion, on the court's own motion Judge Kira L. Klatchko continued the matter to allow the probate court to determine whether the matter was related to the probate action. On May 21, 2021, Judge John J. Evans (the judge proceeding over the probate matter) concluded that the matters were related for purposes of the anti-SLAPP motion and any future motion by O'Kane to vacate the orders approving the first and second petitions. Judge Evans set the hearing on the anti-SLAPP motion for June 29, 2021.
The hearing proceeded in the probate court on that date. Judge Evans indicated that he was inclined to grant the anti-SLAPP motion. Before issuing the ruling and out of an abundance of caution, the court heard argument two weeks later on O'Kane's discovery motion.
After the hearing on O'Kane's discovery motion, the trial court granted Bessey's anti-SLAPP motion and dismissed the case against her. The court concluded that the facts alleged as to Bessey for all three causes of action arose from protected activity under subdivision (e)(1) and (2) of section 425.16 and that O'Kane did not show any probability of prevailing on the merits on her claims. With respect to the second step of the anti-SLAPP analysis, the court also found that O'Kane failed to show why the claims "are not the subject to the litigation privilege," under subdivision (b) of section 47 of the Civil Code, and that "whether the two court orders are void on due process grounds does not establish a probability of prevailing on any of the causes of action alleged against Bessey."
The court denied O'Kane's motion to conduct limited discovery. The court found that the request did "not specifically describe what is sought and how it would establish the elements of [O'Kane's] case." In addition, the court found that O'Kane had "already opposed the anti-SLAPP motion[] on the merits and ha[d] not shown good cause for now lifting the discovery stay or for not moving to have the motion heard prior to the hearing on the anti-SLAPP motion."
Before O'Kane filed her opening brief, she filed a motion for judicial notice of various filings and a hearing transcript in the probate action, which Bessey opposes. O'Kane argued that the documents are relevant to this court's analysis of two arguments that she planned to make on appeal. She did not make the arguments, so we deny the request. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 ["any matter to be judicially noticed must be relevant to a material issue"].) In her reply brief on the request for judicial notice, O'Kane argues that the documents are relevant to an additional issue on appeal. We ordinarily do not consider arguments made for the first time in a reply brief absent good cause because it deprives the nonmoving party of the opportunity to respond. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) O'Kane has not shown good cause for failing to make the argument earlier, so we decline to consider it.
A. Bessey's Anti-SLAPP Motion
O'Kane argues that the trial court erred by granting Bessey's anti-SLAPP motion because the essence of the claims against Bessey arise from nonprotected conduct and because O'Kane demonstrated that she would prevail on the merits of the claims. We are not persuaded.
"The anti-SLAPP statute enables courts, early in litigation, to strike meritless claims in lawsuits when those claims risk chilling 'continued participation in matters of public significance.' (§ 425.16, subd. (a); see id., subds. (b)(1), (f).) '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.' (Id., subd. (b)(1).) Thus, when a defendant seeks to strike a plaintiff's claim under the anti-SLAPP statute there are two inquiries: First, does the claim call for the anti-SLAPP statute's protections? Second, if so, does it have sufficient merit?" (Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 871 (Serova).)
We independently review an order granting a motion to strike under section 425.16. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) "We consider 'the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).)" (Ibid.) We do not assess credibility or the weight of the evidence. (Ibid.) Instead, 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.'" (Ibid.)
We first analyze whether O'Kane's claims arise from protected activity. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) For purposes of the statute, "the mere fact that an action was filed after protected activity took place does not mean the action arose from that activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) "A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) "Critically, 'the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.'" (Id. at p. 1063.) We "consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Ibid.) It is the defendant's burden "to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity." (Bonni, supra, at p. 1009.)
The trial court found that the allegations forming the basis of the fraud, conversion, and conspiracy causes of action arise from two categories of statutorily protected activity-"any written or oral statement or writing made before a . . . judicial proceeding" (§ 425.16, subd. (e)(1)) and "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body" (id., subd. (e)(2)). (A defendant need not show that a statement was made "in connection with a public issue" (id., subd. (b)(1)) if the statement falls within those categories of protected activity. (Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4th 1106, 1123 (Briggs).) The court below noted that the allegations were "not clearly set forth in the moving papers," but the court nevertheless identified the allegations it believed supported the claims against Bessey and concluded that each of the allegations constituted protected activity under subdivision (e)(1) and (2) of section 425.16. O'Kane does not challenge the trial court's findings as to those allegations.
O'Kane instead argues that Bessey did not carry her burden of demonstrating that any of the claims are based on protected activity because "the essence" or "the gravamen" of the claims is Bessey's "unilateral decision not to follow" the settlement agreement and "failure to pay the settlement proceeds" to the O&M law firm, which O'Kane contends is not protected activity. (Boldface, initial capitalization, and underlining omitted.) In support of the argument, O'Kane does not identify which allegations support the elements for the three causes of action, and she does not explain why the allegations do not constitute protected activity. "Although we examine the trial court's decision independently, the scope of our review is limited to those issues that have been adequately raised and supported in the appellant's brief." (Lee v. Kim (2019) 41 Cal.App.5th 705, 721 (Lee).) We presume that a trial court's ruling is correct, and it is the appellant's burden to demonstrate otherwise. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) The appellant bears the burden of demonstrating error even when "the appellant did not bear the burden in the trial court." (Meda v. Autozone, Inc. (2022) 81 Cal.App.5th 366, 374.)
The problem with O'Kane's failure to identify which specific allegations form the basis of each her claims (or to challenge the trial court's findings with respect to specific allegations) is that Bessey's purported liability is not obvious from the face of the pleading. As alleged against Bessey, the conversion cause of action does not contain any specific allegations involving Bessey. The listed allegations instead describe McKee's alleged wrongful conduct in converting the $270,000 belonging to O'Kane for McKee's "own use." Similarly, the fraud cause of action is based primarily on specific allegations concerning McKee and appears to be based on promissory fraud and not actual fraud (despite the cause of action's label). As to Bessey, the only specific allegation of fraud is that because of "Bessey's fraud and the facts alleged in th[e] complaint, [the O&M law firm] did not receive the $270,000 receivable."
We recognize that for each of the claims against Bessey, O'Kane incorporated by reference the general allegations. However, we are not obliged to comb through the pleading to determine which general allegation supports the specific elements of each claim. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10.) O'Kane bears the burden of demonstrating that the trial court erred. (Jameson, supra, 5 Cal.5th at p. 608.) To carry her burden, O'Kane must identify which of those general allegations support which element of each claim against Bessey and explain why those allegations do not constitute statutorily protected activity. We will not address issues O'Kane has not raised, and we will not develop an appellant's arguments. (Lee, supra, 41 Cal.App.5th at p. 721.) Because O'Kane has failed to identify the allegations supporting her claims against Bessey and has failed to develop any argument about why those allegations do not arise from protected activity, she has forfeited the issue on appeal. (Ibid.) O'Kane has accordingly failed to carry her burden of demonstrating that the trial court erred by concluding that the claims against Bessey arose from protected activity. We consequently need not address O'Kane's remaining arguments concerning the first step of the analysis.
In any event, we reject O'Kane's argument that because the gravamen of the complaint is that Bessey breached the settlement agreement by wrongly distributing funds to the McKee firm instead of the O&M law firm, the claims do not arise from protected activity. Bessey argues that the gravamen test as applied by O'Kane does not survive Bonni, supra, 11 Cal.5th 995, and we agree. O'Kane does not address Bessey's argument concerning the gravamen test and does not cite Bonni in her briefs.
Bonni involved a retaliation claim that was based on "a nonexhaustive list of at least 19 distinct acts or courses of conduct." (Bonni, supra, 11 Cal.5th at p. 1009.) The plaintiff argued that when an anti-SLAPP motion seeks to strike an entire cause of action the court "should not examine the underlying acts individually, but instead should identify the 'gravamen' or 'principal thrust' of the cause of action and consider only whether that gravamen arises from protected activity." (Id. at pp. 1009-1010.) The Supreme Court rejected the argument. (Id. at p. 1010.)
The Supreme Court held that when a defendant moves to strike the entirety of a so-called mixed cause of action-"that is, a cause of action that rests on allegations of multiple acts, some of which constitute protected activity and some of which do not"- the moving defendant must identify and the court should analyze "the acts alleged in the complaint that [the defendant] asserts are protected and what claims for relief are predicated on them." (Bonni, supra, 11 Cal.5th at p. 1010.) Bonni held that a court should not "consider whether the gravamen of the entire cause of action was based on protected or unprotected activity." (Id. at p. 1011.) Bonni explained that to conclude otherwise would "risk saddling courts with an obligation to settle intractable, almost metaphysical problems about the 'essence' of a cause of action that encompasses multiple claims." (Ibid.) Any "attempt to reduce a multifaceted cause of action into a singular 'essence' would predictably yield overinclusive and underinclusive results that would impair significant legislative policies." (Ibid.) Bonni nevertheless recognized that applying a gravamen test "to determine whether particular acts alleged within the cause of action supply the elements of a claim [citation] or instead are incidental background" remains permissible in analyzing whether the acts constitute protected activity. (Id. at p. 1012.)
We conclude that O'Kane's application of the gravamen test is no longer permissible under Bonni. O'Kane asks that we do what Bonni now forbids-consider whether the gravamen of the entire causes of action was based on protected or unprotected activity. (Bonni, supra, 11 Cal.5th at p. 1011.) She claims that the essence of the causes of action is Bessey's breach of the settlement agreement by paying the O&M law firm the $270,000 owed. But she ignores the allegations in the first amended complaint on which the causes of action are based. We therefore are not asked to apply the gravamen test "to determine whether particular acts alleged within the cause of action supply the elements of a claim [citation] or instead are incidental background," which would remain permissible under Bonni. (Id. at p. 1012, italics added.) We thus reject O'Kane's argument concerning the gravamen of the causes of action.
O'Kane's gravamen argument fails in any event. As a court-appointed administrator of the estate, Bessey could not distribute the estate's funds without court authorization. (Prob. Code, § 11600.) Thus, Bessey's act of distributing the estate's funds required her to engage in protected petitioning activity. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480 [anti-SLAPP statute's protections extend to actions taken in a probate proceedings in administering a trust].) Put another way, O'Kane cannot allege that Bessey, in her capacity as the estate's court-appointed administrator, distributed the settlement proceeds to the wrong party in breach of the settlement agreement without also alleging that the distribution was accomplished through petitioning activity. (Cf. Park, supra, 2 Cal.5th at p. 1068 ["'Plaintiff could have omitted allegations regarding communicative acts or filing a grievance and still state the same claims'"].) The actual gravamen of the claims against Bessey therefore is that by petitioning the probate court Bessey caused the legal fees owed by the estate to the O&M law firm to be wrongly distributed to the McKee firm. The gravamen of the claims thus is "based upon" protected petitioning activity (Briggs, supra, 19 Cal.4th at p. 1114) that is not "incidental background" that "merely provide[s] context, without supporting a claim for recovery" (Bonni, supra, 11 Cal.5th at p. 1012).
O'Kane otherwise argues that the trial court erred by concluding that the orders approving the first and second petitions were not void and the O&M law firm because of the lack of proper notice to her and the O&M law firm. She contends that because of the void orders Bessey was required to distribute the $270,000 of Jason's legal fees to the O&M law firm, so the trial court erred by dismissing the action "under the Anti-SLAPP statute because enforcement of settlement agreements is not protected speech." First, the trial court did not conclude that the orders were valid. Rather, it concluded that even if the orders were void it did not establish that O'Kane was likely to succeed on the merits of her claims against Bessey. Second, O'Kane does not provide any legal analysis explaining how the putative voidness of the orders would imply that her allegations are not based on protected activity. Regardless of the validity of the court's orders, Bessey's conduct remained the same. It is not apparent how the voidness of the orders could affect the nature of Bessey's conduct and render it unprotected. Because O'Kane does not provide any legal analysis or cite any legal authority to support her conclusion about the effects of the alleged voidness of the orders, we consider the argument forfeited. (County of Sacramento v. Rawat (2021) 65 Cal.App.5th 858, 861.) We thus conclude that O'Kane has failed to carry her burden on appeal of demonstrating that the trial court erred in the first step of the anti-SLAPP analysis.
We next analyze whether O'Kane has carried her burden of demonstrating that the claims have sufficient merit. (Serova, supra, 13 Cal.5th at p. 872.) We conclude that she has not. The trial court concluded that O'Kane failed to demonstrate that any of the three causes of action against Bessey were not subject to the litigation privilege. (Civ. Code, § 47, subd. (b).) In general, the defendant bears the burden on any affirmative defense, including the litigation privilege. (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 769.) Under the second step of the anti-SLAPP analysis, however, the plaintiff retains the burden of demonstrating that she has a probability of prevailing on the merits of the claim. (Ibid.) Thus, to demonstrate that she has a probability of prevailing on the merits of her claims, O'Kane must overcome the substantive defense of the litigation privilege. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) O'Kane has failed to do that.
The only argument concerning the litigation privilege that O'Kane makes in her opening brief is that Bessey's "intentional decision after discussions with McKee to file and not serve the [first and second petitions] was nothing more than a bald attempt to boot strap two defenses: the litigation privilege and Probate Code [section] 7250. But those 'defenses' could never be operative unless the orders underpinning them were valid." The argument is not supported by any legal analysis or citation to legal authority, so we consider it forfeited. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)
O'Kane does not otherwise argue that the trial court erred by concluding that she failed to demonstrate that the litigation privilege did not apply. She also does not make any argument concerning why the litigation privilege does not operate as a complete bar to all of her claims against Bessey. O'Kane has consequently forfeited any argument that the trial court erred by concluding that she failed to demonstrate that the litigation privilege does not apply to bar the claims. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 122.) We accordingly conclude that O'Kane has thus failed to carry her burden of demonstrating that she has a probability of prevailing on the merits of her claims against Bessey.
O'Kane argues for the first time in her reply brief that the litigation privilege does not apply because the claims are based on Bessey's alleged failure to comply with the settlement agreement, which O'Kane argues is not a communicative act subject to the litigation privilege. O'Kane does not explain why she did not make that argument in her opening brief. In general, we consider an argument made for the first time in a reply brief forfeited absent a showing of good cause. (Tukes v. Richard (2022) 81 Cal.App.5th 1, 29.) O'Kane has not demonstrated good cause for failing to address the issue in her opening brief, so we consider it forfeited. (Golden Door Properties, LLC v. Count of San Diego (2020) 50 Cal.App.5th 467, 518.)
For all of these reasons, we conclude that the trial court did not err by granting Bessey's anti-SLAPP motion.
B. O'Kane's Discovery Motion
O'Kane contends that the trial court abused its discretion by denying her motion to conduct discovery and by not continuing the hearing on the anti-SLAPP motion for that purpose. She also argues that the denial violated her right to due process. We find no such abuse or error occurred.
A court may grant a continuance of an anti-SLAPP motion and lift the discovery stay for good cause. (§ 425.16(g); Murray v. Tran (2020) 55 Cal.App.5th 10, 37.) "If the plaintiff makes a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the reasonable opportunity to obtain that evidence through discovery before the motion to strike is adjudicated." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868 (Lafayette).) "In the anti-SLAPP context, 'good cause' requires 'a showing that the specified discovery is necessary for the plaintiff to oppose the [anti-SLAPP] motion and is tailored to that end.'" (Balla v. Hall (2021) 59 Cal.App.5th 652, 692; Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1125.) We review for abuse of discretion the trial court's order denying a plaintiff's request to lift the discovery stay. (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019) 40 Cal.App.5th 882, 891.)
Here, the trial court concluded that O'Kane failed to show good cause for conducting limiting discovery because she had "already opposed the anti-SLAPP motion on the merits," among other reasons. In her opening brief, O'Kane does not address that aspect of the trial court's reasoning. She instead argues that the motion was timely because it was filed "well in advance" of the June 29, 2021, hearing date on the anti-SLAPP motion. That is a misleading characterization of the course of proceedings. The hearing on the anti-SLAPP motion was originally calendared for May 12, 2021. O'Kane filed her discovery motion on May 7, 2021, with a calendared hearing date in July. In any event, the argument does not address the trial court's determination that the motion was untimely because O'Kane had already opposed the anti-SLAPP motion on the merits.
"When a trial court states multiple grounds for its ruling and [an] appellant addresses only some of them, we need not address [the] appellant's arguments because 'one good reason is sufficient to sustain the order from which the appeal was taken.'" (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237.) Because O'Kane fails to challenge one of the bases of the trial court's ruling, we need not reach the merits of her other arguments about the trial court's denial of her motion to conduct limited discovery.
We also conclude that O'Kane's due process rights were not violated by the denial of her request to conduct limited discovery. The only case that O'Kane cites in support of her argument is Lafayette, supra, 37 Cal.App.4th 855, but Lafayette is inapposite. Lafayette concluded that the anti-SLAPP statute's discovery stay does not violate due process because it requires a trial court to allow a plaintiff to conduct limited discovery when the plaintiff makes "a timely and proper showing in response to the motion to strike, that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case." (Id. a p. 868.) As we have explained, O'Kane fails to demonstrate that the trial court abused its discretion by concluding that her discovery motion was untimely. She does not explain how her due process rights were violated given that her request was untimely.
For all of these reasons, we conclude that O'Kane has failed to demonstrate that the trial court abused its discretion by denying her motion to conduct limited discovery under section 425.16(g).
DISPOSITION
The July14, 2021, order denying O'Kane's motion to conduct limited discovery and the July 15, 2021, order granting Bessey's anti-SLAPP motion are affirmed. Bessey shall recover her costs of appeal.
We concur: MILLER Acting P. J. CODRINGTON J.