KEVIN KINSELLA, Plаintiff and Appellant, v. TAMARA KINSELLA, Defendant and Respondent.
D074989
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
February 19, 2020
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Reversed and remanded with directions.
Wolfe Legal Group, Deborah A. Wolfe and Brian P. Worthington for Defendant and Respondent.
In this lawsuit, the trial court ruled that the malicious prosecution complaint was a SLAPP and struck it pursuant to
I. INTRODUCTION
To establish a cause of action for malicious prosecution, one of the elements the plaintiff must prove is that the defendant lacked probable cause to bring the prior action. (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775 (Parrish).) One way the malicious prosecution defendant can establish probable cause for having brought the prior action, therеby defeating the later malicious prosecution claim, is by showing an interim victory on the merits in the prior action—such as the denial of a motion for summary judgment by the defendant (i.e., the plaintiff in the malicious prosecution action)—even where the prior action is ultimately terminated in favor of the defendant. (Id. at pp. 776-777; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 819 (Wilson).) This is known as the interim adverse judgment rule. The rule will not be applied, however, where the interim victory in favor of the plaintiff in the prior action (i.e., the defendant in the malicious prosecution action) was obtained by means of fraud, perjury, or other unfair conduct. (Carpenter v. Sibley (1908) 153 Cal. 215, 218 (Carpenter); Wilson at pp. 817, 820, 825; Parrish, at pp. 776-778, 782.) This is known as the fraud exception to the interim adverse judgment rule.
Seeking to have Kevin‘s malicious prosecution complaint stricken as a SLAPP, Tamara responded with a
The trial court granted Tamara‘s anti-SLAPP motion. In relevant part, the court ruled as follows: By the application of the interim adverse judgment rule, Tamara met her burden of establishing that Kevin cannot show that she lacked the requisite probable cause to have prosecuted the Marvin Action; and Kevin did not meet his responsive burden to allow the application of the fraud exception to the interim adverse judgment rule.
As we explain, because Kevin set forth facts that establish a prima facie application of the fraud exception, the court erred in applying the interim adverse judgment rule to conclude that Kevin did not establish thе requisite probability of prevailing on his claim. Accordingly, we will reverse the judgment and remand with directions that the court vacate its order granting Tamara‘s anti-SLAPP motion and enter a new order denying the motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
As we explain at part III., post, the issues in the present appeal all arise from the second stage of the anti-SLAPP proceedings, during which the
In the present case, the parties rely on the following evidence contained in the record on appeal: a declaration from Tamara‘s attorney; a declaration from Kevin; various exhibits introduced by the two declarations; and Kevin‘s amended verified complaint in this malicious prosecution action (verified complaint). Because the record on appeal does not contain any evidentiary objections (or rulings denying the admission of any proffered evidence), we consider all of the evidence submitted to the trial court (see Sweetwater, supra, 6 Cal.5th at p. 949; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268 (Gallagher) [objections to evidence not made in the trial court‘s anti-SLAPP proceedings are forfeited on appeal3])—as have the parties in their appellate briefing.
A. The Marvin Action: Tamara v. Kevin (Dec. 2013 - July 2015)
Tamara and Kevin lived together for 23 years, from a date in 1989 until May 2012. Kevin proposed marriage in May 1990; the parties married in April 1997 and separated in May 2012; and Tamara filed for divorce in December 2012. According to Kevin, prior to their marriage he was a “wealthy m[a]n” and had “considerable premarital separate property“; and many tens of millions of dollars of cash and property are at issue in the parties’ marital dissolution action.
In December 2013, Tamara filed the Marvin Action. As relevant to this appeal, Tamara alleged that Kevin breached an express oral contract—entered into within six months of having met her—to take care of her for the rest of her life and to give her half of everything he owned, whether acquired before
The parties litigated the Marvin Action for approximately three and a half years. During that time, in early 2015, the trial court denied Kevin‘s motion for summary judgment. Kevin‘s position was that he never made any agreement with Tamara regarding his assets. In contrast, in her declaration in opposition to Kevin‘s motion, Tamara testified that, when Kevin proposed marriage in May 1990, he expressly promised her half of all of the assets he acquired after they met in 1989. Describing the parties’ factual presentations as establishing “a he said, she said case” in which the trial would be “a credibility contest,” the court denied Kevin‘s summary judgment motion. More specifically, the court ruled that triable issues of fact existed as to the showing of both the mutual assent and the consideration to create the express contract alleged in the complaint by Tamara.
In July 2017, Tamara dismissed the Marvin Action without prejudice.5
B. The Malicious Prosecution Action: Kevin v. Tamara (Feb. 2018 - Present)
In February 2018, Kevin initiated the malicious prosecution action against Tamara. In the verified complaint, Kevin testified that the Marvin Action was terminated in his favor and that Tamara brought the Marvin Action without probable cause and with malice, causing him money damages.
In due course, Tamara filed an anti-SLAPP motion. Consistent with the requirements of the anti-SLAPP statute, which we describe in greater detail at the beginning of part III., post, Tamara argued both that her claims in the Marvin Action arose from constitutionally protected activity and that there
Kevin opposed Tamara‘s anti-SLAPP motion. Without questioning Tamara‘s constitutional right to petition (
Tamara filed a reply. With regard to the first issue—i.e., the presumption of probable cause for Tamara to prosecute the Marvin Action—she argued that Kevin did not meet his evidentiary burden of establishing the fraud exception to the interim adverse judgment rule. With regard to the second issue—i.e., the consideration of Kevin‘s equitable estoppel defense to Tamara‘s claims in the Marvin Action—Tamara argued: California law does not allow a malicious prosecution plaintiff (here, Kevin) to prove his case based on his affirmative defense to the claim in the prior action (here, the Marvin Action); and, even if the law allowed such proof, here Kevin did not meet his burden of presenting evidence of a prima facie case.
Following hearing, the court granted Tamara‘s anti-SLAPP motion, striking the verified complaint. As to the presumption of probable cause for Tаmara to prosecute the Marvin Action, the court ruled as follows: An application of the interim adverse judgment rule (based on the denial of Kevin‘s summary judgment motion in the Marvin Action) established the requisite probable
Consistent with its August 2018 order granting Tamara‘s motion and striking the complaint, in September 2018 the court entered a judgment against Kevin. Kevin timely appealed in October 2018. In his opening brief, Kevin tells us that the trial court “modified the Judgment on December 7, 2018“—which was more than a month after Kevin‘s appeal from the judgment—“to award Tamara $28,619.00 in attorney‘s fees and $765 for costs.”
III. DISCUSSION
In applying this statute, the court generally is required to engage in a two-step process. ” ‘First, the defendant must establish that the challenged claim arises from activity protected by
Here, as to the first prong, there is no disagreement. Kevin‘s malicious prosecution claim arises from an act in furtherance of Tamara‘s constitutional right of petition, which she exercised when pursuing the Marvin Action. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [“by its terms,
Thus, all that is at issue in this appeal is the second prong; i.e., whether the trial court erred in determining that Kevin failed to demonstrate the requisite minimal mеrit of his claim by establishing a probability of success in proving that Tamara maliciously brought her cause of action for breach of an express oral agreement in the Marvin Action. (See Oasis West, supra, 51 Cal.4th at p. 820 [“If the plaintiff [opposing the anti-SLAPP motion] ‘can show a probability of prevailing on any part of its claim, the cause of action is not meritless’ and will not be stricken“]; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup) [a cause of action for malicious prosecution ” ‘lies when but one of alternate theories of recovery is maliciously asserted’ “].) Because of how Tamara presented her anti-SLAPP motion, all that is at issue in this appeal is whether the court erred in determining that Kevin failed to demonstrate the merit of his claim by establishing a probability of success in proving one element of his claim for malicious prosecution—i.e., whether Tamara lacked probable cause to bring her cause of action for breach of an express oral agreement in the Marvin Action.6
Importantly—indeed, outcome determinative in this appeal—in deciding whether Kevin (i.e., the plaintiff opposing the anti-SLAPP motion) demonstrated the requisite probability of success for purposes of
We review de novo the grant of an anti-SLAPP motion. (Sweetwater, supra, 6 Cal.5th at p. 940.) In exercising our independent judgment, we “may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial.”7 (Id. at p. 949; see
As we explain, the trial court erred in striking the verified complaint as a SLAPP. Kevin presented evidence sufficient to sustain a favorable factual finding that Tamara brought her claim for breach of an express oral agreement in the Marvin Action without probable cause. More specifically, Kevin presented evidence sufficient to establish a prima facie showing of an application of the fraud exception to the interim adverse judgment rule, thereby defeating the presumption of probable cause to bring Tamаra‘s claim based on the court‘s denial of Kevin‘s summary judgment motion in the Marvin Action.8 Thus, we will reverse the judgment and remand with directions to vacate the order granting Tamara‘s anti-SLAPP motion and enter a new order denying the motion. Finally, because Kevin has not provided a record, legal authority, or argument from which we can make a ruling as to an award of postjudgment attorney fees and costs, we do not reach the issue.
A. The Fraud Exception to the Interim Adverse Judgment Rule
In prosecuting a claim for malicious prosecution, the plaintiff must establish, among other elements, the defendant‘s lack of probable cause to have brought the prior action. (Parrish, supra, 3 Cal.5th at p. 775; see fn. 6.)
Historically, California courts have long held that victory in the trial court, even if reversed on appeal, conclusively establishes the requisite probable cause to have brought the prior action. (Holliday v. Holliday (1898) 123 Cal. 26, 32 [“when a person is charged before a competent court having jurisdiction of the matter, and is tried and found guilty, the judgment rendered, unless it is shown to have been obtained by means of fraud, is conclusive evidence of probable cause for making the charge, even though it is afterward held to be unauthorized, and reversed on appeal“; italics added]; Carpenter, supra, 153 Cal. at p. 218; Wilson, supra, 28 Cal.4th at p. 817.) The rationale is that claims which succeed after an adversary hearing on the merits, even if later reversed, ” ‘are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.’ ” (Parrish, supra, 3 Cal.5th at p. 776; accord, Wilson, at pp. 817-818; Carpenter, at p. 218; Holliday, at p. 32.) That is because, unless the initiаl success was procured by certain improper means (which we discuss post), the claims “cannot be ‘totally and completely without merit.’ ” (Parrish, at p. 776; accord, Wilson, at pp. 817-818; Carpenter, at p. 218; Holliday, at p. 32.)
This standard, known as the interim adverse judgment rule, also applies when the initial victory in the trial court is a defense motion for summary judgment—namely, when the prior action is terminated in favor of the defendant (i.e., the malicious prosecution plaintiff), yet during the pendency of the prior action, the court denied a defense motion for summary judgment. (Parrish, supra, 3 Cal.5th at p. 784; Wilson, supra, 28 Cal.4th at p. 819; see Hutton v. Hafif (2007) 150 Cal.App.4th 527, 550 [a “well[-]established rule of law applicable to a malicious prosecution complaint [is] that the denial of a summary judgment motion in the underlying action establishes probable cause to file that lawsuit“].) “Denial of a defense summary judgment motion on grounds that a triable issue exists . . ., while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of actiоn with evidence that, if believed, would justify a favorable verdict.” (Wilson, at p. 824.) “A trial court‘s conclusion that issues of material fact remain for trial ‘necessarily impl[ies] that the judge finds at least some merit in the claim. The claimant may win, if certain material facts are decided favorably. This
The presumption under the interim adverse judgment rule is subject to an exception where the initial victory in the prior action—i.e., the denial of the defendant‘s summary judgment motion—“was induced by materially false facts submitted in opposition” to the motion. (Roberts, supra, 76 Cal.App.4th at p. 384.) That is because, “if denial of summary judgment was induced by materially false facts submitted in opposition, equating denial with probable cause might be wrong. Summary judgment might have been granted but for the false evidence.”9 (Ibid.) More than a century ago, our Supreme Court desсribed this principle, known as the fraud exception to the interim adverse judgment rule, as follows: “Certainly, if a man has procured an unjust judgment by the knowing use of false and perjured testimony, he has perpetrated a great private wrong against his adversary. . . . [T]he general rule now is, ‘that if the declaration or complaint shows a conviction of the plaintiff, yet if it be averred that the conviction was procured by fraud, perjury or subornation of perjury, or other unfair conduct on the part of the defendant, the presumption of probable cause is effectually rebutted.’ ”10
(Carpenter, supra, 153 Cal. at p. 218 [malicious prosecution action following the reversal of a criminal conviction based on what the malicious prosecution plaintiff contended was defendants’ presentation to the grand jury of “unlawfully procured false evidence“].)
Most recently, our Supreme Court explained the reason for an applicаtion of the fraud exception to the interim adverse judgment rule: “[W]hen a litigant relies on evidence that she knows to be false, she is not entitled to reap the benefits of the interim adverse judgment rule by deceiving a court into believing that her claim has merit.” (Parrish, supra, 3 Cal.5th at p. 782.) In applying this standard, the focus should be on ” ‘the facts known to the [litigant]’ accused of malicious prosecution.” (Ibid.)
In this appeal, both parties accept that the interim adverse judgment rule applies. Thus, under the rule, because the trial court in the Marvin Action denied Kevin‘s motion for summary judgment, Tamara is entitled to a presumption that probable cause existed for her to bring her claim for breach of an express oral agreement in that action. (See Wilson, supra, 28 Cal.4th at p. 820 [defeating a defense motion for summary judgment in the prior action “establishes probable cause to [hаve brought] the action, and precludes the maintenance of a subsequent malicious prosecution action“].) The only issue on appeal is whether Kevin rebutted this presumption—i.e., whether Kevin met his burden of establishing an application of the fraud exception to the interim adverse judgment rule, thereby defeating the presumption that probable cause existed for Tamara to bring her claim in the Marvin Action for breach of an express oral agreement.
For anti-SLAPP purposes of establishing a probability of prevailing on his malicious prosecution claim against Tamara, Kevin must present ” ‘a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by [Kevin] is credited.’ ” (Wilson, supra, 28 Cal.4th at p. 821; accord, Sweetwater, supra, 6 Cal.5th at p. 940; see
What follows is direct and circumstantial evidence that Kevin relies on (from the verified complaint and his declaration in opposition to Tamara‘s motion) to establish a prima facie showing that, at the time Tamara submitted her testimony of the express oral agreement to the court in the Marvin Action, she knew this testimony to be false:
- First and foremost is the direct evidence contained in Kеvin‘s testimony that, when Tamara submitted her declaration in opposition to his summary judgment motion in the Marvin Action—in which she testified that, in May 1990, Kevin expressly promised her half of all the assets he acquired after they met in 1989—“Tamara knew the true facts regarding the ownership of Kevin‘s property[.]” These “true facts,” Kevin further testified, were that “there was no agreement between Kevin and Tamara, express or implied, as alleged in the Marvin Action.”
- Prior to the parties’ marriage in April 1997, Kevin and Tamara met with a family lawyer. At that time, Kevin explained to Tamara: “I wanted my separate property to remain separate property after marriage. I wanted to know if I needed a prenuptial agreement to accomplish that objective.” At the meeting, Kevin told the lawyer—and Tamara concurred—that “Kevin had substantial separate property assets and [Tamara] did not.” Kevin explained to both the lawyer and Tamara not only “the nature and extent” of his premarital separate property, but also that virtually all of his separate property was held in trust. Based on the lawyer‘s advice (that Kevin did not need a prenuptial agreement to maintain the separate character of his premarital property if he kept it in trust and did not comingle it with community property or Tamara‘s separate property), Kevin testified that “Tamara left the lawyer‘s office with the decision having been made that there would be no prenuptial agreement.
Kevin would maintain the separateness of his existing assets by keeping them in his Trust, or otherwise segregating them from any assets acquired after the marriage.” - Kevin testified: “Tamara never claimed her alleged fortune on a loan application or financial statement.”
- Consistently, Kevin testified: “Tamara never suggested that I could not truthfully claim 100% of my income or assets on a financial statement or loan application; nor did she suggest my income should be treated as anything but 100% mine for tax purposes.”
- Kevin testified: “During the 25 years we were together, Tamara never said anything to me that suggested in any way that she believed she had an interest in my premarital separate property, let alone a 50% interest.”
- Kevin testified that not once during the years they were together did either Tamara or Kevin ever “manifest[] a belief that Tamara had a right to half of everything . . . even though there were many occasions when they would have were Tamara‘s claim true.” Kevin detailed at least 10 examples of such occasions, summarizing them as “statements and actions, whereby [Tamara] implicitly and explicitly acknowledged that she had no right or interest in or to Kevin‘s premarital assets[.]”
- Kevin testified: “[T]here is no written support for Tamara‘s [claimed interest in half of the assets Kevin acquired after they met.]”
- Kevin testifiеd: “[T]here is powerful written evidence to contradict [Tamara‘s claimed interest in half of the assets Kevin acquired after they met.]” Kevin included eight examples of such statements written by Tamara.
- Kevin testified: “Tamara never complained that I was treating all of the property in my Trust as my own; [and] Tamara never created a similar, or any, trust, and never mentioned wanting to do so.”
- Kevin testified as to various transactions—e.g., purchases and sales of real property, and the creation and amendment of a personal trust—from which a trier of fact could infer Kevin had not previously agreed that he would share with Tamara half of the assets he acquired after they met.
- Finally, Kevin testified that, throughout the 23 years they lived together, “Tamara never told me she believed she had any interest in my assets.”
Accepting ” ‘as true’ ” Kevin‘s evidence—and all favorable inferences therefrom (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1117)—and without
Tamara‘s arguments on appeal do not convince us otherwise.
First, Tamara argues that “the standard for [a malicious prosecution defendant‘s] probable cause [to have brought the prior action] is ‘lenient.’ ” (Quoting Wilson, supra, 28 Cal.4th at p. 817.) In part, Tamara continues, this leniency is because malicious prosecution is a ” ‘disfavored’ cause of action” due to its ” ‘potential to impose an undue “chilling effect” on the ordinary citizen‘s willingness . . . to bring a civil dispute to court.’ ” (Quoting Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872.) We do not disagree with Tamara‘s authority, and Tamara is not precluded from relying on this authority when the trial court considers the merits of Kevin‘s claim for malicious prosecution. Here, however, we are considering an anti-SLAPP motion, and “[t]o survive anti-SLAPP scrutiny, a plaintiff need only establish their cause of action has ‘minimal merit.’ ” (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1117, quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89; accord, Sweetwater, supra, 6 Cal.5th at p. 940; Oasis West, supra, 51 Cal.4th at p. 825; Baral v. Schnitt (2016) 1 Cal.5th 376, 385.) That is because the anti-SLAPP procedure is only intended to “weed[] out, at an early stage, meritless claims arising from protected activity.” (Baral, at p. 384.) Kevin‘s prima facie showing meets this ” ‘minimal merit’ ” standard, and on the record before us Kevin‘s malicious prosecution cause of aсtion is not “meritless” under applicable anti-SLAPP criteria.
Next, Tamara suggests that, by failing to submit the declaration Tamara filed in opposition to Kevin‘s summary judgment motion in the Marvin Action—i.e., the testimony that Kevin claims contains the false or misleading evidence that forms the basis of his application of the fraud exception to the
Tamara further argues that Kevin did not meet his burden of establishing an application of the fraud exception to the interim adverse judgment rule, because independent of Tamara‘s declaration testimony in the Marvin Action, the record contains evidence that created a triable issue of material fact to have denied Kevin‘s summary judgment motion. We reject this argument, since Tamara has not presented us with a sufficient record of the summary judgment proceedings in the Marvin Action for us to determine alternative bases on which the motion сould have been denied.14
Tamara next contends that the fraud exception to the interim adverse judgment rule is inapplicable here, because Kevin failed to submit evidence that, at the time she submitted her declaration in opposition to Kevin‘s summary judgment motion in the Marvin Action, Tamara knew that any statement was false. We disagree. Kevin relies on his testimony that, when Tamara submitted her declaration—in which she testified that, in May 1990, Kevin expressly promised her half of all the assets he acquired after they met in 1989—“Tamara knew the true facts regarding the ownership of Kevin‘s property[.]” This prima facie showing is sufficient. In any event, we are not persuaded by Tamara‘s assertion in her appellate brief that “[she] does not concede that her statement in her declaration was false or incorrect.” Since we must accept Kevin‘s evidence ” ‘as true’ ” without ” ‘weigh[ing] evidence
We also disagree with Tamara‘s related argument that Kevin did not meet his burden of presenting a prima facie case that Tamara lacked probable cause to bring the Marvin Action since, according to Tamara, “[t]he evidence he submitted in opposition, and relies on now in the AOB, is subject to, at most, conflicting inferences.” Indeed, contrary to Tamara‘s contention, in determining whether Kevin met his prong two burden, we are required to “draw ‘every legitimate favorable inference’ from the plaintiff‘s evidence.” (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1117.) Tamara‘s suggestion otherwise is unsupported by authority, and we reject it. Tamara argues that, if Kevin is allowed to “create a prima facie case for malicious prоsecution by presenting evidence that is subject to, at best, conflicting inferences, that would diminish what a malicious prosecution claim is meant to be.” Tamara again loses focus of the substantive law to be applied in this appeal. This is an anti-SLAPP appeal, where, for purposes of determining whether the plaintiff has demonstrated the requisite probability of success, we accept Kevin‘s evidence ” ‘as true,’ ” we do not ” ‘weigh evidence or resolve conflicting claims’ ” from Tamara (Sweetwater, supra, 6 Cal.5th at p. 940; accord, Wilson, supra, 28 Cal.4th at p. 821), and we draw all inferences in Kevin‘s favor (Cuevas-Martinez, at p. 1117).15 Any arguments Tamara may have as to Kevin‘s attempts to “diminish what a malicious prosecution claim is meant to be” may be presented when Kevin attempts to prove the allegations in his substantive claim for malicious prosecution.
Finally, Tamara complains that Kevin‘s evidentiary showing does not establish a prima facie showing of the elements of the crime of perjury as
For the foregoing reasons, Kevin met his burden of establishing that the trial court erred in ruling that he did not present a prima case for the application of the fraud exception to the interim adverse judgment rule. Based on our de novo review, we conclude that, for purposes of prong two of the anti-SLAPP statute (
C. Attorney
In his opening brief, Kevin tells us that the trial court “modified the Judgment on December 7, 2018 to award Tamara $28,619.00 in attorney‘s fees and $765 for costs” and that his appeal is “from an Order granting a Motion to Strike under . . .
The record on appeal does not contain an order awarding fees and costs (or a register of actions from which we might determine the postjudgment proceedings in the trial court), and Kevin acknowledges that no fees or costs had been awarded at the time he appealed from the judgment in October 2018. Further, the parties’ briefs do not contain any arguments as to attorney fees or costs.
“[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal[.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 609, italics added; accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Where an appellant fails to present argument or legal authority, he or she forfeits appellate consideration of the issue. (Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809, 830; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported “by argument and, if possible, by citation of authority“].)
In this appeal, Kevin has not provided a record, legal authority, or argument from which this court can make a ruling regarding any postjudgment award of attorney fees or costs in this action. Accordingly, we neither consider nor express a view regarding attorney fees or costs.
The judgment is reversed and the matter is remanded to the superior court with directions to vacate its order granting Tamara‘s anti-SLAPP motion and enter a new order denying the motion. Kevin is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
O‘ROURKE, Acting P. J.
DATO, J.