XIN GAO v. TONY LU

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Court of Appeal, Second District, California.

XIN GAO, Plaintiff and Appellant, v. TONY M. LU et al., Defendants and Respondents.

B214535

Decided: June 30, 2010

Xin Gao, in pro. per., for Plaintiff and Appellant. Law Offices of Victor Saldana and Victor Saldana for Defendants and Respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

This is an appeal by plaintiff and appellant Xin Gao after the trial court struck his first amended complaint under Code of Civil Procedure section 425.16, the statute prohibiting strategic lawsuits against public participation.   Gao fails to demonstrate any error in the judgment or the attorney fee award.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Complaint

On November 12, 2008, Xin Gao, also known as Gary Gao, filed a first amended complaint (complaint) for harassment, malicious accusation, and slander.   Gao named “Tony M. Lu, individual, doing business as [ (dba) ] Law Office of Tony M. Lu,” and Fang Zhong as defendants.

Gao alleged that Lu represented Zhong in another lawsuit.   Gao alleged that in the lawsuit, Zhong falsely accused Gao of violating the Racketeer Influence and Corrupt Organization Act (RICO) 1 and falsely accused Gao of committing fraudulent business practices.   According to the complaint, Lu and Zhong slandered Gao's business by alleging violations of RICO.

2. Motion to Strike

Defendants apparently filed an anti-SLAPP (strategic lawsuit against public participation) motion to strike Gao's complaint.   A copy of that motion is not included in the record on appeal.   Gao did not file an opposition and did not appear at a hearing on the motion.   Victor Saldana appeared at the hearing on behalf of Tony Lu. The court granted defendants' motion to strike Gao's complaint.

3. Judgment

On January 29, 2009, the court entered judgment in favor of defendants-Tony M. Lu, dba Law Office of Tony M. Lu, and Zhong.   The court awarded Tony M. Lu, dba Law Office of Tony M. Lu, and Zhong attorney fees in the amount of $3,380.   Gao appealed from the judgment.

DISCUSSION

Gao argues that he lacked notice of defendants' anti-SLAPP motion and of the hearing on that motion.   He also challenges the attorney fee award.

1. Notice

Gao's claim that he lacked notice is not cognizable in this appeal.   He did not file a motion pursuant to Code of Civil Procedure section 473, which allows relief from default for mistake, inadvertence, surprise, or excusable neglect.2  (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042.)   Nor did he file a motion for relief based on extrinsic fraud, which allows relief in certain circumstances where a party was prevented from presenting his or her case as a result of extrinsic fraud practiced by the other side.  (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.)   In short, whether Gao received notice was never litigated.

This court is not the proper forum to litigate in the first instance Gao's claim that he was denied notice.  “ ‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ ”  (In re Zeth S. (2003) 31 Cal.4th 396, 405;  see also Navarro v. Perron (2004) 122 Cal.App.4th 797, 803 [trial court is sole arbiter of facts].) 3  Because the issue of notice was not before the trial court for its consideration, it cannot be raised in this appeal.

2. Attorney Fees

An award of attorney fees to a party who successfully brings an anti-SLAPP motion is mandatory.  (Code Civ. Proc., § 425.16, subd. (c);  Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142.)   Gao, however, argues that an award of attorney fees was improper in this case because Lu and Saldana were business partners.

For purposes of awarding attorney fees, there is a distinction between a self-represented attorney or law firm and an attorney or law firm represented by another attorney.   Where a member of a law firm sued in his or her individual capacity is represented by other attorneys in the firm, an award of attorney fees is proper.  (Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 221.)   Similarly, an attorney who represents herself and other defendants and prevails in an anti-SLAPP motion is entitled to fees.  (See Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 525 [attorney fees proper to prevailing party in anti-SLAPP motion where attorney represented self and other defendants].)   In contrast, a law firm represented by an attorney in the firm is not entitled to attorney fees.  (Trope v. Katz (1995) 11 Cal.4th 274, 292;  Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1211.)   The rationale for precluding an attorney fee award in this latter circumstance is that where a law firm is sued in its own right, the members of the firm have a personal stake in the matter.  (Witte v. Kaufman, supra, 141 Cal.App.4th at p. 1211.)   For the same reason, an attorney representing herself in bringing an anti-SLAPP motion also is not entitled to attorney fees.   (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.)

Gao demonstrates no error in the $3,380 attorney fee award.   There is no evidence in the record that Saldana represented his own firm.   Gao's assertion that Lu and Saldana were business partners is unsupported by any evidence in the record.   There was no evidence that Saldana worked for the Law Offices of Tony M. Lu or that Saldana had a personal stake in this matter.   Finally, regardless of Lu's entitlement to fees, Gao demonstrates no error in the award of fees to Zhong.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Title 18 United States Code section 1962 et seq..  FN1. Title 18 United States Code section 1962 et seq.

FN2. Code of Civil Procedure section 473, subdivision (b), provides in pertinent part:  “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.   Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”.  FN2. Code of Civil Procedure section 473, subdivision (b), provides in pertinent part:  “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.   Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

FN3. Gao's argument rests entirely on documents not presented to the trial court and on statements in his brief based on material improperly included in the record on appeal.  (See Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [documents not before the trial court cannot be included as part of record on appeal].).  FN3. Gao's argument rests entirely on documents not presented to the trial court and on statements in his brief based on material improperly included in the record on appeal.  (See Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [documents not before the trial court cannot be included as part of record on appeal].)

WILLHITE, Acting P. J. SUZUKAWA, J.