Judge Mitchell L. Beckloff, Case Number: 23STCP01424, Date: 2024-02-09 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 23STCP01424, Date: 2024-02-09 Tentative Ruling

Respondent, Kyle R. Hasday, seeks an order declaring Petitioner, Charles Janeke, a vexatious litigant pursuant to Code of Civil Procedure section 391 (Section 391). Petitioner opposes the motion.

Respondent’s request for judicial notice of Exhibits 1, 2 and 3 through 27 is granted.[1] Respondent’s supplemental request for judicial notice is denied. It appears the supplemental request is duplicative of Respondent’s initial request for judicial notice.[2] That Respondent has used the same identifying numbers for both requests for judicial notice further complicates matters.

Respondent’s request for judicial notice of Exhibits 31, 32 and 33 is granted.

Respondent’s second, third, fourth, fifth and sixth supplemental requests for judicial notice are denied. The requests were filed after this matter had been initially set for hearing, after the parties had fully briefed the motion and only three court days prior to the hearing. Given that (1) all briefing for the motion had concluded as of January 19, 2024; (2) the briefing does not directly reference the five late-filed requests for judicial notice;[3] and (3) Petitioner has objected to the court taking judicial notice as untimely, Respondent’s request is denied. Petitioner’s objection is sustained.

Petitioner’s evidentiary objections (see Opposition 10:4-14) are overruled. First, to the extent Petitioner claims the judicially noticeable documents are “not a complete representation of the underlying cases” (Opposition 10:6-7), Petitioner had the opportunity to present additional documentation for consideration and to provide a complete understanding of the documents presented. Moreover, whether the evidence is presented is sufficient is an issue concerning the weight of the evidence and Respondent’s burden of proof. Second, Petitioner’s claim the evidence presented on attorneys’ fees is vague, ambiguous and without foundation is not directed at any particular claim (or portion of evidence) concerning attorneys’ fees. Thus, Petitioner’s generalized objection is overbroad and may be overruled. (See Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United Steelworkers (1964) 227 Cal.App.2d 675, 712.)

Respondent’s evidentiary objections to the Declaration of Charles Janeke: Objections 1, 2, 4, 7, 8, 9, 10, 11, 12, 13, 14 and 15 are overruled. Objections 5 and 6 are sustained. Objection 4 is sustained as to “nor would Hasday . . . large construction project.”

Respondent’s original request of the court sought (1) an order declaring Petitioner a vexatious litigant pursuant to Code of Civil Procedure[4] section 391; (2) an order requiring Petitioner to post a bond of $500,000 pursuant to section 391.1; and (3) a prefiling order as described in section 391.7, subdivision (a).

After Petitioner voluntarily dismissed this proceeding, Respondent supplemented his request for relief. As the court understands it, in addition to his original request, Respondent also seeks (1) an order requiring Petitioner to post security “to compensate Respondent for [his] reasonable attorney fees pursuant to [sections] 391-391.7, 1033.5, . . . ” (Supplemental Brief ii:20-21); (2) prevailing party reasonable attorneys’ fees and costs; (3) sanctions pursuant to section 128.5;[5] and/or (3) attorneys’ fees pursuant to section 1021.5.[6]

As a preliminary matter, Respondent’s request for a $500,000 bond pursuant to section 391.1 is denied. Litigation is no longer pending—the matter has been dismissed. Section 391.1 provides the court with authority to require a bond or order dismissal. Given the dismissal, there is no need for a bond as there is no need for security for ongoing litigation. Moreover, if a litigant fails to provide the security ordered, the matter may be dismissed. As the matter has been dismissed, there would be no sanction for a vexatious litigant’s failure to post a bond. (It appears Respondent recognizes as much given his supplemental request.)

Among other things, Respondent seeks an order declaring Petitioner a vexatious litigant pursuant to Section 391.1, subdivision (b)(2) and (3)

Section 391, subdivision (b) contains four alternative definitions of “vexatious litigant.” To fall within the statute, a plaintiff’s litigation conduct must fit within one of the statutory definitions. That is, the court may not “mix and match” portions of each definition to deem a plaintiff vexatious. (See Holcomb v. United States Bank Nat'l Ass'n (2005) 129 Cal.App.4th 1494, 1501.)

The court may consider all evidence, written or oral, material to the issue at the hearing on the motion to declare a plaintiff vexatious. (§ 391.2.) Judicial notice is an appropriate means of establishing the relevant facts concerning other litigation filed by the plaintiff. (Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 221-222.)

Respondent argues the court should deem Petitioner a vexatious litigant for any of the three grounds specified in Section 391 subdivision (b). Respondent’s substantive analysis, however, is limited to Section 391, subdivision (b)(1). Under that provision, litigants may be declared to be vexatious if they “in the immediately preceding seven-year period (have) commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.” (§ 391, subd. (b)(1).)

In large part, Respondent’s analysis of the evidence submitted is simply inadequate to demonstrate grounds requiring Petitioner be deemed a vexatious litigant. Despite Respondent’s belief 15 cases support his request, Respondent has not presented sufficient evidence of five qualifying actions within the last seven years. Thus, Respondent has not met its burden on this motion under section 391, subdivision (b)(1).

· Janeke v. Nash (Case 1): The matter in the Court of Appeal concluded on September 15, 2016. The relevant seven-year period here runs from September 18, 2016, seven years prior to the filling date of this motion, September 18, 2023. Thus, this litigation concluding September 15, 2016 is three days outside of the relevant time period. Similarly, Janeke v. Nash (Case 1 a.), the trial court proceeding, concluded on June 3, 2016. It is also outside the relevant seven-year period.

· 1330 Ingraham/Janeke v. City of Los Angeles (Case 2): Respondent has miscaptioned the action. The plaintiff in Los Angeles Superior Court case number 16K12337 was 1330 Ingraham Company LLC. (Supp. RJN, Ex. 5.) The limited liability company, according to documents submitted by Respondent, was represented by counsel, Brian R. Johnston. Even assuming Respondent could demonstrate the limited liability company should be treated as Petitioner,[7] based on the evidence before the court, the plaintiff in the matter had counsel.

· Janeke v. Allen et al (Case 3): The court cannot conclude, on the evidence presented, Petitioner represented himself in the litigation. The evidence indicates Abraham A. Labbad represented Petitioner. Respondent does not otherwise identify anything in the court’s case information from which the court could determine Petitioner was self-represented in that litigation. For example, the court could not locate (and Respondent has not directed the court to) a substitution of attorney filed in the case. In fact, page 20 of the case information indicates an attorney filed the complaint.

· Janeke v. Allen (Case 3 a.): The Court of Appeal decision indicates Petitioner was represented by two attorneys in the Court of Appeal. (Supp. RJN Ex. 12.) Petitioner did initiate the appeal, and he represented himself for more than seven months in that litigation. (Supp. RJN Ex. 10.) While the trial court’s judgment was affirmed, the court cannot find the matter was determined adversely to Petitioner. Petitioner argued on appeal the trial court erred in its calculation of the payments he owed the defendant/cross-complainant. The Court of Appeal expressly agreed with Petitioner and ordered a reduction in the amount of the judgment against him from $190,000 to $180,000. Respondent does not address how, if at all, Petitioner’s success in the case (albeit in a limited way) can be labeled adverse to him.

· Janeke v. Allen (Case 3 b.): Respondent’s reliance on this matter is unsupported by any evidence. The cited evidence (Supp. RJN Exs. 10, 11 and 12) appear to be related to a different Court of Appeal proceeding. (See Case 3 a. above.)

· Janeke v. Allen (Case 3 c.): Absent authority, the court is not inclined to find a petition for review with the Supreme Court is an action commenced for purposes of Section 391, subdivision (a).

· Monroy v. Janeke (Case 4): Respondent’s evidence (RJN Ex. 13) does not support the claim. In addition, the matter appears to have been litigated in an administrative forum. Section 391 defines litigation as a civil action or proceeding “in any state or federal court.” (§ 391, subd. (a).)

· Janeke v. State of California (Case 4 a.): Respondent’s evidence to support this litigation adversely decided against Petitioner is proof of an undertaking for Monroy v. 1330 Ingraham Company, LLC. (RJN Ex. 14.) On this evidence, the court cannot find this matter is a qualifying litigation.

· Monroy v. 1330 Ingraham Co. (Case 4 b.): Respondent provides no real explanation of this matter to support its motion. Nonetheless, it appears to the court Petitioner appealed a decision of the court in Los Angeles Superior Court case number BS171052 on March 18, 2019. (RJN Ex. 16.) The notice of appeal notes Petitioner as the appellant. (RJN Ex. 16.) Petitioner was self-represented when he initiated the appeal. (RJN Ex. 16.) That appeal, Court of Appeal case number B296517, was subsequently dismissed. (RJN Ex. 17.) Petitioner initiated the litigation less than seven years ago in 2019. (RJN Ex. 16.) That said, from the evidence provided, Petitioner did not initiate the litigation in this court. Section 391 “has no application to a party who files an appeal in a proceeding he did not initiate.” (Estate of Kempton (2023) 91 Cal.App.5th 189, 191.)

· Monroy v. 1330 Ingraham Company, LLC (Case 4 c.): Respondent submits no evidence to support its claim. This matter is Court of Appeal case number B296517 discussed above. Thus, it is duplicative. (RJN Ex. 22.)

· Janeke v. State of California Labor Commission (Case 4 d.): Again, Respondent provides no explanation of this matter to support its motion. (RJN Ex. 21.) The six-page case information shows Petitioner was represented by counsel. (RJN Ex. 21, p. 1, 6.)

· Janeke v. Workmans Comp Commissioner (Case 5 e.): Petitioner initiated the action on October 9, 2019. (RJN Ex. 24.) Petitioner was self-represented in the proceedings. (RJN Ex. 24 [ex parte declaration.) A minute order reflects Petitioner, in propria persona, filed a request for dismissal. The court thereafter dismissed the proceeding. Based on the evidence, the court can find Petitioner initiated and prosecuted this litigation in propria persona, and it was finally determined adversely to him.

Petitioner argues this matter is not a qualifying litigation under Section 391 because he was not the plaintiff. (Opposition 7:11-13.) Petitioner claims he merely filed this litigation “in response to” wage claims made by another. Petitioner nonetheless qualifies as a plaintiff for purposes of Section 391. (Ogunsalu v. Superior Court (2021) 12 Cal.App.5th 107, 113. [“Here, Ogunsalu is the ‘plaintiff’ because he commenced litigation (the writ of mandate proceeding) in the superior court. The OAH is the ‘defendant’ because it is the governmental entity against whom Ogunsalu brought the litigation. Under the plain language of the vexatious litigant statutes, the underlying administrative proceeding does not qualify as ‘litigation.’ ”]) Petitioner initiated this matter, he was not represented by counsel, and the matter was decided adversely to him.

· Janeke v. Labor Commissioner (Case 5 f.): Petitioner filed this proceeding in propria persona on May 4, 2022. (RJN Ex. 25.) Ultimately, the court dismissed the matter at Petitioner’s request. (RJN Ex. 25 p. 2.) Based on the evidence, the court can find Petitioner initiated and prosecuted this litigation in propria persona, and it was finally determined adversely to him.

Petitioner contends this matter is not qualifying litigation because he was not the plaintiff and the matter was not decided adversely to him. (Opposition 7:14-16.) While Petitioner contends Petitioner initiated this litigation “in response to” wage claims made by other, Petitioner nonetheless qualifies as a plaintiff for purposes of Section 391. (Ogunsalu v. Superior Court, supra, 12 Cal.App.5th at 113.) Moreover, the litigation was decided adversely to Petitioner. (See Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406-407 [voluntary dismissal constitutes litigation finally determined adversely to plaintiff]; see also Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779 [same].)

· Janeke v. California State Franchise Tax Board (Case 5): Petitioner filed this matter in propria persona on May 25, 2022. (RJN Ex. 26 p. 5.) Later, Petitioner substituted counsel into the matter for representation. (RJN Ex. 26 p. 2 [10-24-22].) Section 391, subdivision (b)(1) provides a person can fit within the definition of vexatious litigant by commencing, prosecuting and/or maintaining a matter. There can be no question here that Petitioner initiated, prosecuted and maintained this litigation until he hired counsel to represent him. Three months later, Petitioner requested the matter be dismissed. Based on the evidence, the court can find Petitioner initiated and prosecuted this litigation in propria persona, and it was finally determined adversely to him.

Petitioner contends he was not the plaintiff in this matter, he did not act in propria persona and the matter was not decided adversely to him. (See Opposition 7:17-18.) Petitioner later admits he filed the matter in propria persona. (Opposition 8:18.) Contrary to Petitioner’s position, that he was the respondent in the administrative proceeding does not negate his plaintiff status when he filed his petition in this court. (Ogunsalu v. Superior Court, supra, 12 Cal.App.5th at 113.)

· Janeke v. Los Angeles Department of Building and Safety (this proceeding): Petitioner initiated this proceeding on May 3, 2023 in propria persona. After prosecuting the proceeding for four months, Petitioner substituted counsel into the matter for representation. Shortly thereafter, the court dismissed the petition on Petitioner’s request on October 2, 2023. Based on the evidence, the court can find Petitioner initiated and prosecuted this litigation in propria persona, and it was finally determined adversely to him.

Petitioner offers no argument to suggest this matter does not qualify as litigation for purposes of Section 391.

Based on the foregoing, Respondent has not established Petitioner is a vexatious litigant pursuant to Section 391, subdivision (b)(1). He has not provided evidence of five qualifying litigations in the applicable seven-year period.

As for Respondent’s claim the court may declare Petitioner a vexatious litigant pursuant to Section 391, subdivision (b)(2) or (b)(3), Respondent provides no specific analysis of the facts to support his position. Generally, the provisions require Respondent to demonstrate Petitioner “repeatedly relitigates or attempts to relitigate” matters previously decided against him, or “repeatedly files unmeritorious motions, pleadings, or other papers, . . . .” (Section 391, subd. (b)(2), (3).)

While Respondent argues this proceeding was always destined to be decided adversely to Petitioner in his moving papers, Respondent does not otherwise provide necessary facts to find Petitioner is a vexatious litigant under Section 391, subdivision (b)(2) and/or (3). Respondent’s moving papers (including his supplemental points and authorities) provide no real detail about Petitioner’s litigation tactics in the matters discussed above. Thus, Respondent fails to meet his burden under Section 391, subdivision (b)(2) and (3).[8]

Petitioner, Charles Janeke, filed his verified petition seeking an order revocation of certain building permits issued by Respondent, the City of Los Angeles on May 3, 2023. Respondent, Kyle R. Hasday, the homeowner who obtained the permits moves to strike the petition pursuant to Code of Civil Procedure section 425.16 (Section 425.16).

The court need not rule on Hasday’s evidentiary objections as the court does not reach the second part of the Section 425.16 analysis. Nonetheless, objections 1, both objections labeled 2, 3, 4 and 6 are overruled. Objection 5 is sustained as to “nor would Hasday allow the release of the plans.”

Petitioner alleges he is a homeowner with a neighbor, Hasday, who is currently in the process of constructing a swimming pool with the assistance of a contractor. Petitioner asked the contractor for proof of Hasday’s building permit. After presenting the pool permit to Petitioner, the contractor declined Petitioner’s request to show him the drawings and plans for the pool.

Petitioner thereafter contacted the City’s department of building and safety (LADBS) because Petitioner perceived a “smokescreen.” Petitioner learned from LADBS the City issued an “express permit not requiring review of any kind being intended for limited (small scale) standardized construction “(replacing windows, extending a porches [sic], garden walls etc.).” Through LADBS, Petitioner learned the City issued the pool permit with a bundle of six other “express” permits. Petitioner requested more information from LADBS, did not receive any drawings or diagrams “and noticed in aghast (1) permits indeed asserts to minor works (2) minor block retaining walls with (3) total value of works amounting to $26,000 only; . . . .”

Petitioner implicitly alleges the City issued the permits based upon “clearly a material misrepresentation of fact and law attempt to circumvent the HILLSIDE ORDINANCE requiring notice, plan review, expert licensed seismic engineers report, drainage abatement and street setback among many other formalities including soils report, variations and reporting material defects after the fact (existing retaining wall at task) . . . .”

Petitioner alleges Hasday’s contractor was “engaged in construction . . . without a LABDS [sic] authenticated permit . . . .” Petitioner contends the controlling licensing body had not “adjudicated” the permits.

Through the petition, Petitioner seeks an order revoking all of the express permits as well as an order requiring compliance with the hillside ordinance protocol.

The court denied several requests for ex parte relief requested by Petitioner. The court also required Hasday be named as a real party in interest to the litigation given that Petitioner sought revocation of his building permits.

On October 2, 2023, the court dismissed the petition without prejudice at Petitioner’s request.

Under the two-step process of Section 425.16, the court first decides “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity . . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

“In bringing a section 425.16 motion to strike, the defendant has the initial burden to make a prima facie showing that the plaintiff’s claims are subject to section 425.16. If the defendant makes that showing, the burden shifts to the plaintiff to establish a probability he or she will prevail on the claim at trial, i.e., to proffer a prima facie showing of facts supporting a judgment in the plaintiff’s favor.” (Roberts v. Los Angeles County Bar Assoc. (2003) 105 Cal.App.4th 604, 613.)

Subdivision (e) of Section 425.16 identifies four general categories of activities that constitute protected “ ‘act[s] in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue. ’ ” As used in Section 425.16, an “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) 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 . . . .” (§ 425.16, subd. (e).) The last two subdivisions of Section 425.16, subdivision (e) concern issues of public interest and are not pertinent here.

Notwithstanding that Section 425.16 itself specifies it is to be “broadly construed” (§ 425.16, subd. (a)), “the ‘arising from’ requirement is not always easily met.” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at 66.) “The trial court must . . . focus on the substance of the plaintiff’s lawsuit in analyzing the first prong of a special motion to strike.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669.)

“In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; See also, Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [court examines declarations in first step of analysis under Section 425.16; “we . . . refer to Capon’s description of [his] conduct in his declaration [in support of his Section 425.16 motion] to determine whether it was protected or unprotected activity”].) In other words, the moving declarations in support of the motion are appropriately considered in determining this part of the analysis under Section 425.16.

For a cause of action to “arise from” protected activity, “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.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th at 92.) Section 425.16 applies to any claim arising from protected conduct, regardless of its label. (Ibid.)

In other words, “[i]n the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at 78 [emphasis added]. “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, 1062-1063 [Park].) Thus, “[t]he defendant’s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A ‘claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.’ ” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

Here, Hasday contends Petitioner’s claims are based on his exercise of protected rights. To wit:

The Respondents’ activities meet the burden of being based on anti-SLAPP protected rights, because Respondents’ prior activities as alleged in the petition, motion and herein each follow the legal requirements necessary when altering an R1 zoned property to publicly participate and submit applications to obtain the necessary entitlements and building permits and inspections, and since these entitlements, permits and inspections are then analyzed, conducted, issued and/or approved by representatives of the City Planning and Building Departments as administrative bodies, each such activity therefore arises out of an “administrative action”, therefore Respondents activities constitute protected activities under the anti-SLAPP statute. Indeed, but for HASDAY complying with the law and thereupon lawfully obtaining the subject permits and related inspections there would not even be any theoretical basis whatsoever for JANEKE’S frivolous “Petition.” (Memo 7:15-25.)

made false allegations with no basis in fact that, HASDAY, and his contractor, LOST WEST POOLS, in petitioning the City for permits allegedly made false or incomplete statements in HASDAY’S permit applications falsely alleging that HASDAY failed to submit proper plans and engineering reports, and thereupon sought to have HASDAY’S permits revoked. (Reply 2:15-20.)

While the City’s consideration of Hasday’s communications and request for building permits constitutes protected activity under Section 425.16, the issue here is whether Hasday’s statements and/or request for permits form the basis of liability in Petitioner’s cause of action. As noted, “in the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at 78.) Here the statements alleged in the petition do not constitute the basis of liability. That is, the speech alleged in the petition is merely incidental to the wrong alleged by Petitioner.

Petitioner’s legal theory is the City improperly issued permits to Hasday in violation of applicable ordinances. Hasday’s statements in the petition or his request for a permit are not the basis of the wrong alleged in the petition. Hasday’s allegedly false statements may provide evidence about why the City made any permitting error, but the statements themselves are not material to Petitioner’s claim. Petitioner’s claim asserts the City violated local laws when it issued the permits without regard to any speech or petitioning activities by Hasday. (See Park, supra, 2 Cal.5th at 1068. [“The dean’s alleged comments may supply evidence of [discriminatory] animus, but that does not convert the statements themselves into the basis for liability. As the trial court correctly observed, Park’s complaint is ‘based on the act of denying plaintiff tenure based on national origin. Plaintiff could have omitted these allegations regarding communicative acts . . . and still state the same claims.’ ”])

Hasday’s statements do not comprise the wrong alleged by Petitioner.[9] Petitioner contends the City’s decision to issue building permits to Hasday violated local law. The relief sought by Petitioner seeks to revoke express permits improperly issued by the City given the scope of Hasday’s work. The court cannot find here the cause of action alleged here “arises from” Hasday’s right of petition or free speech.

[1] Respondent has omitted an Exhibit 4 from the request for judicial notice.

[2] It appears the documents in the supplemental request for judicial notice have been certified.

[3] The court is not required to cull through pages and pages of evidence submitted by Respondent in an effort to determine whether Respondent has met his burden of proof.

[4] All undesignated statutory references are to this code.

[5] Hasday’s request for attorneys’ fees pursuant to section 128.5 is denied. Hasday’s request merely references the statute without any substantive analysis. (See Supplemental Brief ii:23-24 [notice]; 2:27-3:1.)

[6] Hasday’s request for attorneys’ fees pursuant to section 1021.5 is denied. Hasday has failed to prove his entitlement to such fees. (See Supplemental Brief 3:1-5.) The three factors necessary to support an award of attorney fees to a successful party pursuant to Section 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest,’ (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.) The burden of proof is “on the claimant to establish each element of the statute.” (Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 572-573.)

[7] Respondent has provided no legal analysis for purposes of Section 391, subdivision (b)(1) addressing whether a limited liability company may be treated as Petitioner here.

[8] In reply, Respondent purports to provide some detail for his claims. That detail, however, is mere conclusion.

[9] To determine whether a claim arises from protected activity, “courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at 1063.)