Olin v. Grace CA5 ( 2023 )


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  • Filed 3/30/23 Olin v. Grace CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    JEFFREY J. OLIN,
    F083969
    Plaintiff and Appellant,
    (Super. Ct. No. VCU286243)
    v.
    ROGER M. GRACE et al.,                                                       ORDER MODIFYING OPINION
    [No Change in Judgment]
    Defendants and Respondents.
    THE COURT:
    It is ordered that the opinion filed herein on March 30, 2023, be modified as
    follows:
    On page 33, under the heading Disposition, add the following sentence at the end
    of the paragraph:
    In the interests of justice, each party shall bear their own costs on appeal.
    There is no change in the judgment.
    PEÑA, J.
    WE CONCUR:
    LEVY, Acting P. J.
    DETJEN, J.
    2.
    Filed 3/30/23 Olin v. Grace CA5 (unmodified opinion)
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    JEFFREY J. OLIN,
    F083969
    Plaintiff and Appellant,
    (Super. Ct. No. VCU286243)
    v.
    ROGER M. GRACE et al.,                                                                   OPINION
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of Tulare County. Nathan D.
    Ide, Judge.
    Jeffrey J. Olin, in pro. per., for Plaintiff and Appellant.
    Roger M. Grace, in pro. per., and for Defendants and Respondents.
    -ooOoo-
    Plaintiff Jeffrey J. Olin appeals from two orders and a judgment entered in favor
    of defendants Roger M. Grace, Jo-Ann W. Grace, Metropolitan News Company, and
    Grace Communications, Inc. Specifically, Olin appeals from an order granting
    defendants’ special motion to strike pursuant to Code of Civil Procedure section 425.16,
    an order granting the corporate defendants’ motion for attorney fees, and the resulting
    judgment. (Undesignated statutory references are to the Code of Civil Procedure.) This
    special motion to strike is commonly referred to as an anti-SLAPP motion (strategic
    lawsuit against public participation). We conclude the trial court properly granted the
    anti-SLAPP motion but erred in the award of attorney fees. We affirm in part, reverse in
    part, and direct the trial court to modify the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    Factual Allegations of the Complaint
    Alleged Defamatory Statements
    On March 10, 2021, Olin filed a complaint alleging as follows:
    On or about March 11, 2020, Metropolitan News Company (MNC) published an
    article concerning Olin’s prior appeal of a domestic violence restraining order (DVRO)
    issued to restrain him and protect his ex-spouse, Kelly Olin. (In re Marriage of Olin
    (Mar. 9, 2020, B295416) (nonpub. opn.) Second District Court of Appeal, Division Eight
    (the “DVRO appellate opinion”).) The March 11, 2020 article read, in main part:
    “Court of Appeal:
    “DVRO Can Be Based on Yelp Review of Ex-Wife, Email
    “Stratton’s Opinion Does Not Discuss Whether Order, Based on
    Communications, Is Prior Restraint Against Like Speech
    “By a MetNews Staff Writer
    “A Long Beach attorney who posted a denigrating review of his ex-
    wife on Yelp and sent an email threatening to bring various causes of action
    against her has failed to persuade the Court of Appeal for this district to lift
    an order that he not ‘harass’ his former spouse.
    “The five-year domestic violence restraining order (‘DVRO’)
    against Jeffrey J. Olin, an associate in the law firm of Ford Walker
    Haggerty & Behar, was upheld in an opinion by Justice Maria Stratton of
    Div. Eight. The opinion, filed Monday, was not certified for publication.
    “The opinion quotes Olin as insisting, in his email to his ex-wife,
    that he has ‘a First Amendment Right to publish the Truth,’ but does not
    discuss whether the ban on harassing her—which stems from the Yelp
    2.
    positing [sic] and the email—constitutes a prior restraint on
    communications of like nature.
    “Veasey’s Order
    “The DVRO, issued by Los Angeles Superior Court Commissioner
    Glenda Veasey, also provides that Olin may not ‘attack, strike, threaten,
    assault …, hit, follow, stalk’ or ‘disturb the peace’ of the ex-wife or their
    14-year-old son. It bars contacting his former spouse, Kelly Rene Olin, or
    the son, and requires that he stay at least 100 yards away from them.”
    [Hereafter, we refer to this paragraph as the “alleged defamatory
    statement.”]
    “An Oct. 2, 2018 ‘review’ Jeffrey Olin posted on the Yelp page of
    his former wife’s employer, Surf Management Inc., (since removed) said:
    [allegations against Olin’s ex-spouse omitted.] [¶] … [¶]
    “Stratton’s Opinion
    “Stratton wrote:
    “‘Although Jeffrey may view his own behavior as “not vulgar”, we
    believe contacting his ex-spouse’s employer via email in the manner he did
    … and leaving reviews about his ex-spouse on her employer’s Yelp page in
    the manner he did … amounts to abuse, harassment, and intentional
    disturbing of Kelly’s peace, warranting the DVRO against him.
    “‘We further agree with the trial court’s decision to issue the DVRO
    for a period of five years; it is noteworthy Jeffrey maintains to this day he
    “was justified” in sending the October 18, 2018 email to Kelly and her
    employer.’ [¶] … [¶]
    “The case is In re the Marriage of Olin, B295416.”
    Olin alleges the DVRO did not apply to Olin’s minor son and is demonstrably
    false. He attached a copy of the DVRO to his complaint to support his allegation. It
    contains a section entitled “Additional Protected Persons” in which Olin’s minor son is
    identified but the section is stricken and initialed by the commissioner who issued the
    DVRO.
    Olin demanded MNC retract the alleged defamatory statement. Defendant
    Roger M. Grace (R. Grace), on behalf of MNC, denied the statement was false and
    3.
    “initially refused to take any remedial action after [Olin] provided him with the
    confidential first page of the … DVRO ….” Olin alleges that R. Grace was “personally
    involved in the publication of the falsity” and that R. Grace asserted “he had emailed
    [Olin] for comment the day the … appellate opinion was filed.”
    Olin alleges MNC continued to publish the alleged defamatory statement by
    publishing an amended news article. The amended news article contained the following,
    prefatory boldface language:
    “The article below is a report on a Court of Appeal opinion
    affirming the imposition of a [DVRO] on attorney Jeffrey Olin. The
    article says, in part:
    “‘The DVRO, issued by Los Angeles Superior Court
    Commissioner Glenda Veasey, also provides that Olin may not “attack,
    strike, threaten, assault …, hit, follow, stalk” or “disturb the peace” of
    the ex-wife or their 14-year-old son. It bars contacting his former
    spouse, Kelly Rene Olin, or the son, and requires that he stay at least
    100 yards away from them.’
    “Those provisions are reported by Court of Appeal Justice
    Maria E. Stratton of this district’s Div. Eight in her March 9, 2020
    opinion to have been included in a temporary DVRO, and she states
    that a permanent (five-year) order was later entered. Her opinion does
    not state that reference to the son was omitted from the permanent
    DVRO.
    “Nearly a year after the article was published, Olin has
    protested that the article is libelous, declaring that the permanent
    DVRO protects only his ex-wife, not the son. This was not inferable
    from the opinion. Olin was afforded a chance to comment on the
    opinion before it was reported upon and he did not avail himself of that
    opportunity.
    “The docket does not reflect a petition for rehearing.
    “We trust Olin is now content in having it made known that the
    DVRO, in its final form, only applied to his ex-wife.
    “The opinion can be found at
    https://www.courts.ca.gov/opinions/nonpub/B295416.DOC.”
    4.
    Immediately following the above quoted prefatory language, the original MNC news
    article containing the alleged defamatory statement was set forth verbatim in the amended
    news article. Olin alleges this amended news article leaves the original article
    “unchanged and still includes the false statement, which [R. Grace] stubbornly, and
    maliciously, refuses to correct.”
    Olin alleges that R. Grace indicated he would assert that the alleged defamatory
    statement is a “privileged communication protected by Civil Code section 47(d)(1)” and
    would “file an anti-SLAPP motion, pursuant to Code of Civil Procedure section 425.16”;
    that R. Grace’s assertion the alleged defamatory statement is privileged is incorrect; and
    that Olin is “a private figure and this [is] … a private matter.” In his allegations, Olin
    clarified he “is only objecting to the defendants having created and published this false
    statement [i.e., the alleged defamatory statement], and is not addressing the remainder of
    the [news] ‘article.’”
    Olin alleges he communicated to R. Grace that, while other sites have published
    articles concerning Olin’s appeal of the DVRO, “[R. Grace’s] website is the only one to
    fabricate and publish the false statement that a [DVRO] prevents [Olin] from contacting
    his son.”
    The Relationship Between Defendants
    Olin alleges defendants R. Grace and Jo-Ann W. Grace (J. Grace) are married,
    licensed California attorneys, and are the owners of defendant MNC and its parent
    company, defendant Grace Communications, Inc. (GCI). Olin further alleges R. Grace is
    “the registered Chief Executive Officer of [MNC] and the Chief Financial Officer of
    GCI” and that J. Grace “is the Secretary, Chief Financial Officer, and Director of [MNC]
    as well as the Chief Executive Officer of GCI.” He also alleges each of the named
    defendants are “alter egos of each other and … [are] jointly and severally liable for the
    tortious acts alleged” in the complaint; that MNC and GCI are undercapitalized and
    5.
    “completely commingled”; that there is no “proper arms-length relationship” between
    MNC, GCI, and the Grace defendants; and that MNC and GCI “are mere shells for the
    benefit of” the Grace defendants.
    Additional Allegations and Causes of Action in the Complaint
    Olin filed suit alleging two causes of action against all defendants: (1) the first
    cause of action for defamation, per se; and (2) a second cause of action for portraying
    Olin in a false light. Olin alleges defendants’ actions were done “with the intent to cause
    [him] injury”; their actions were “despicable”; and they “acted with willful and knowing
    disregard” of Olin’s rights and “with the awareness of the probable harmful consequences
    of their conduct.” Olin alleges defendants “deliberately failed to avoid those
    consequences” thereby subjecting him to “cruel and unjust hardship.”
    First Cause of Action for Defamation, Per Se
    Olin alleges in his first cause of action for defamation, per se, that the alleged
    defamatory statement was published on the Internet by MNC; that the news article clearly
    indicates it is about Olin; that the DVRO appellate opinion does not reflect the
    information in the alleged defamatory statement and that the statement was fabricated by
    defendants; and that defendants “failed to use reasonable care to determine the truth or
    falsity of the [alleged] defamatory statement.”
    Olin further alleges the alleged defamatory statement “injured [Olin’s] personal
    and professional reputations and has inflicted emotional distress upon him.” For
    example, Olin alleges, after being laid off in July 2020 as a result of the COVID-19
    pandemic, he “has been unable to get more than a handful of interviews and those never
    proceed beyond the first interview.” Olin alleges “he began to wonder why he was not
    getting responses.” Then he Googled “Jeffrey Olin attorney” and discovered defendants’
    news article was the first link to show in the results. He alleges “[e]very potential
    employer he has been applying to … has been given the false impression that [he] has to
    6.
    be prevented from contacting his own son. All of his potential employers have been
    given the false impression that after a hearing, [he] was determined to have engaged in
    actions which showed him to be a threat to his own son.”
    Finally, Olin alleges defendants should be held to a “heightened understanding of
    the law and the harm that would result from their reckless” reporting due to the fact the
    Grace defendants are both seasoned attorneys and “are co-publishers of a legal affairs
    publication.”
    Second Cause of Action for False Light
    Olin relies on all of the aforementioned allegations for his second cause of action.
    He further alleges MNC’s news articles “publicly disclosed information that portrayed
    [him] in a false light”; “[t]he false light created by the disclosure would be highly
    offensive to a reasonable person”; the evidence is clear and convincing that “[d]efendants
    acted with a reckless disregard for the truth”; defendants “intended to cause [him]
    emotional distress” that he “suffered and continues to suffer” from as a result of their
    conduct; and he has been “unable to obtain employment since being portrayed in this
    false light.”
    The Special Motion to Strike, Motion for Attorney Fees, Resulting Judgment, and
    Olin’s Appeal
    The Special Motion to Strike
    On August 17, 2021, defendants moved for an order striking Olin’s complaint
    without leave to amend pursuant to section 425.16 (i.e., the anti-SLAPP motion) and for
    an award of attorney fees and costs. The stated grounds for the motion were that “the
    action arises from acts in furtherance of … defendants’ right of free speech in connection
    with a public issue” and that Olin “cannot demonstrate a probability of prevailing on the
    merits.” Defendants asserted the acts underlying Olin’s causes of action fell within three
    categories of protected activity under subdivision (e) of section 425.16. Specifically,
    defendants contend their reporting was a “written or oral statement or writing made in
    7.
    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)(2)); a “written or oral statement or writing made in a place open to the public or a
    public forum in connection with an issue of public interest” (id., subd. (e)(3)); and “any
    other conduct in furtherance of the exercise of the constitutional right of petition or the
    constitutional right of free speech in connection with a public issue or an issue of public
    interest” (id., subd. (e)(4)).
    On August 30, 2021, Olin opposed the motion and made a counter request for
    sanctions in the amount of $2,400. Defendants filed their reply to Olin’s opposition on
    September 3, 2021.
    On September 13, 2021, the trial court adopted its tentative ruling to grant
    defendants’ motion to strike and deny defendants’ request for attorney fees and costs
    without prejudice to defendants’ right to bring a “subsequent noticed motion concerning
    their fees.” The court found defendants’ article drew “exclusively on content from the
    [DVRO] appellate opinion” and determined it met the criteria set forth in subdivision
    (e)(2) of section 425.16 (“any written or oral statement or writing made in connection
    with an issue under consideration … by a … judicial body”). The court then found Olin
    did not meet his burden of demonstrating “a probability of prevailing on the claim by
    making a prima facie showing of facts that would, if proved, support a judgment in
    [Olin’s] favor.” In particular, the court found Olin did not “establish[] a probability of
    overcoming an absolute defense asserted by defendants under Civil Code section
    47(d)(1),” which provides: “A privileged publication or broadcast is one made: [¶] …
    [¶] (d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a
    judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in
    the course thereof, or (E) of a verified charge or complaint made by any person to a
    public official, upon which complaint a warrant has been issued.”
    8.
    The Motion for Attorney Fees
    On October 7, 2021, defendants MNC and GCI moved for an order awarding them
    their attorney fees and costs. The motion was made pursuant to section 425.16, which,
    subject to exceptions, entitles a prevailing party defendant to recoup its attorney fees and
    costs. (§ 425.16, subd. (c)(1).) On November 5, 2021, Olin opposed the motion.
    On November 24, 2021, Olin filed a document entitled “Plaintiff’s Opposition to
    Tentative Ruling” in which Olin argued the trial court’s tentative ruling on the motion for
    attorney fees was contrary to law. A copy of the tentative ruling was not included in the
    record on appeal.
    On November 29, 2021, defendants MNC and GCI filed a “Supplemental
    Memorandum of Points and Authorities in Support of Defendants’ Motion for Attorney
    Fees” in which MNC and GCI requested “the supplemental memorandum be received
    and considered in place of argument at the time of the Dec. 1 hearing,” and a declaration
    from R. Grace. As part of his declaration, R. Grace attached a copy of MNC’s and GCI’s
    “Reply to Opposition to Motion for Attorney Fees”; averred the reply was e-mailed to
    Olin and the trial court’s research attorney on November 8, 2021; averred the reply was
    sent that same day via “next-day delivery” to the court but the court’s “online register of
    actions does not reflect” the document as having been filed.
    On December 13, 2021, the trial court issued its “Ruling on Defendants’ Motion
    for Attorneys’ Fees” in which it granted the motion and awarded MNC and GCI fees in
    the amount of “$3,000.00 for work performed on behalf of the corporate defendants only
    and costs of $465.00.”
    The Judgment and Olin’s Appeal
    On December 15, 2021, judgment was rendered in favor of defendants. It reads:
    “Whereas, on Sept. 13, 2021, the defendants’ special motion to strike, pursuant to …
    [section] 425.16, for the reasons set forth in the order [sic]; and [¶] Whereas defendants
    [GCI] and [MNC] have moved for an order awarding attorney fees, and no opposition
    9.
    [sic] having been filed, and good cause having been shown for such an award[; ¶] IT IS
    HEREBY ORDERED, ADJUDGED AND DECREED that plaintiff … shall take nothing
    by his complaint and shall pay to defendants, jointly and severally, $3,000 in attorney
    fees and $456 in costs.”
    On February 16, 2022, Olin filed his notice of appeal.
    DISCUSSION
    I.     The Orders and Judgment at Issue Are Appealable and the Notice of Appeal
    Was Timely
    An appellate court has “an independent obligation in this as in every matter to
    confirm whether jurisdiction exists.” (California Redevelopment Assn. v. Matosantos
    (2011) 
    53 Cal.4th 231
    , 252.) During the pendency of this appeal, defendants filed a
    motion to dismiss the appeal on grounds Olin’s notice of appeal was untimely. The
    motion to dismiss was subsequently withdrawn. We have independently reviewed the
    record and conclude Olin’s notice of appeal was timely, and thus confirm our jurisdiction
    to proceed to the merits of the issues raised by Olin.
    II.    Standard of Review for the Order Granting Defendants’ Anti-SLAPP Motion
    “‘Review of an order granting or denying a motion to strike under section 425.16
    is de novo. [Citation.] We consider “the pleadings, and supporting and opposing
    affidavits … upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).)
    However, we neither “weigh credibility [nor] compare the weight of the evidence.
    Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate
    the defendant’s evidence only to determine if it has defeated that submitted by the
    plaintiff as a matter of law.”’” (Flatley v. Mauro (2006) 
    39 Cal.4th 299
    , 325–326.)
    III.   Anti-SLAPP Motion Purpose and Procedure
    “[S]ection 425.16 was enacted in 1992 to dismiss at an early stage nonmeritorious
    litigation meant to chill the valid exercise of the constitutional rights of freedom of
    speech and petition in connection with a public issue. [Citation.] These meritless suits,
    10.
    referred to under the acronym SLAPP, … are subject to a special motion to strike unless
    the person asserting that cause of action establishes by pleading and affidavit a
    probability that he or she will prevail.” (Sipple v. Foundation For Nat. Progress (1999)
    
    71 Cal.App.4th 226
    , 235 (Sipple); see § 425.16, subd. (b)(1).)
    Subdivision (a) of section 425.16 provides: “The Legislature finds and declares
    that there has been a disturbing increase in lawsuits brought primarily to chill the valid
    exercise of the constitutional rights of freedom of speech and petition for the redress of
    grievances. The Legislature finds and declares that it is in the public interest to
    encourage continued participation in matters of public significance, and that this
    participation should not be chilled through abuse of the judicial process. To this end , this
    section shall be construed broadly.”
    Subdivision (b)(1) of section 425.16 provides: “A cause of action against a person
    arising from any act of that person in furtherance of the person’s right of petition or free
    speech under the United States Constitution or the California Constitution in connection
    with a public issue shall be subject to a special motion to strike, unless the court
    determines that the plaintiff has established that there is a probability that the plaintiff
    will prevail on the claim.”
    For purposes of 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, (3) any written or oral statement or writing made
    in a place open to the public or a public forum in connection with an issue of public
    interest, or (4) any other conduct in furtherance of the exercise of the constitutional right
    11.
    of petition or the constitutional right of free speech in connection with a public issue or
    an issue of public interest.” (§ 425.16, subd. (e).)
    “Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the
    moving defendant bears the burden of establishing that the challenged allegations or
    claims “aris[e] from” protected activity in which the defendant has engaged.’ [Citation.]
    Second, for each claim that does arise from protected activity, the plaintiff must show the
    claim has ‘at least “minimal merit.”’ [Citation.] If the plaintiff cannot make this
    showing, the court will strike the claim.” (Bonni v. St. Joseph Health System (2021) 
    11 Cal.5th 995
    , 1009.)
    A.     The First Prong of the Anti-SLAPP Process Was Met by Defendants
    1.     Olin’s Contention the DVRO Appellate Opinion Did Not Concern
    a Public Issue Is Without Merit
    Olin asserts the trial court erred in finding the first prong of the anti-SLAPP
    process was met for four reasons. He contends (1) defendants’ reporting did not concern
    a public issue—relying on Time, Inc. v. Firestone (1976) 
    424 U.S. 448
     (Time); (2) the
    DVRO appellate opinion indicated it was “not to be published in the official reports”; (3)
    the statement that the permanent DVRO protects Olin’s son is a “fabricated statement,
    not part of the official record, and therefore should not be considered having been made
    in connection with a public proceeding”; and (4) defendants’ reporting contains “an
    incorrect presumption made … and published by [defendants] without any fact-
    verification” and is “on all four tires with” the United States Supreme Court’s holding in
    Time.
    In Time, the publisher of Time magazine appealed a libel judgment against it
    based on a report it made concerning “the result of domestic relations litigation” between
    a husband who was the scion of a wealthy industrial family and his wife. (Time, 
    supra,
    424 U.S. at pp. 449–450.) During the couple’s separation, the wife filed a complaint in a
    Florida state court seeking separate maintenance. (Id. at p. 450.) The husband
    12.
    “counterclaimed for divorce on grounds of extreme cruelty and adultery.” (Ibid.) In
    granting the divorce, the trial court noted the parties’ competing allegations of infidelity
    and promiscuity and indicated it was “inclined to discount much of this testimony as
    unreliable” but that “neither party is domesticated, within the meaning of that term as
    used by the Supreme Court of Florida ….” (Id. at pp. 450–451.) Time magazine
    reported the court granted the couple’s divorce “on grounds of extreme cruelty and
    adultery.” (Id. at p. 452.) When Time magazine refused to retract the story, the (now
    former) wife sued and obtained a libel judgment against the magazine. (Id. at p. 452.)
    Time magazine appealed the libel judgment against it, arguing, among other
    things, that the judgment should be reversed because the husband was a public figure, and
    the ex-wife did not demonstrate Time magazine had acted with actual malice as required
    under the holding of New York Times v. Sullivan (1964) 
    376 U.S. 254
    . (Time, supra, 424
    U.S. at pp. 452–453.) Time magazine also argued its article “constituted a report of a
    judicial proceeding, a class of subject matter which … deserves the protection of the
    ‘actual malice’ standard even if the story is proved to be defamatorily false or
    inaccurate.” (Id. at p. 453.) The high court rejected both arguments. (Ibid.)
    The Time court noted it had “defined the meaning of ‘public figure’ for the
    purposes of the First and Fourteenth Amendments [as follows]: [¶] ‘For the most part
    those who attain this status have assumed roles of especial prominence in the affairs of
    society. Some occupy positions of such persuasive power and influence that they are
    deemed public figures for all purposes. More commonly, those classed as public figures
    have thrust themselves to the forefront of particular public controversies in order to
    influence the resolution of the issues involved.’” (Time, supra, 424 U.S. at p. 453, citing
    Gertz v. Robert Welch, Inc. (1974) 
    418 U.S. 323
    , 345.)
    The Time court noted the ex-wife “did not assume any role of especial prominence
    in the affairs of society, other than perhaps Palm Beach society, and she did not thrust
    herself to the forefront of any particular public controversy in order to influence the
    13.
    resolution of the issues involved in it.” (Time, supra, 424 U.S. at p. 453.) “Dissolution
    of a marriage through judicial proceedings is not the sort of ‘public controversy’ referred
    to in Gertz, even though the marital difficulties of extremely wealthy individuals may be
    of interest to some portion of the reading public. Nor did [the ex-wife] freely choose to
    publicize issues as to the propriety of her married life. She was compelled to go to court
    by the State in order to obtain legal release from the bonds of matrimony. We have said
    that in such an instance ‘(r)esort to the judicial process … is no more voluntary in a
    realistic sense than that of the defendant called upon to defend his interests in court.’”
    (Time, supra, 424 U.S. at p. 454.) The Time court concluded the ex-wife “was not a
    ‘public figure’ for the purpose of determining the constitutional protection afforded
    [Time magazine’s] report of the factual and legal basis for her divorce.” (Id. at p. 455.)
    The Time court noted that Time magazine’s report was inaccurate because the
    grounds for the trial court granting the divorce was not that the ex-wife had been guilty of
    extreme cruelty and adultery—rather, it was based on “‘lack of domestication of the
    parties,’ a ground not theretofore recognized by Florida law. The [Florida] Supreme
    Court nonetheless affirmed the [divorce] judgment … because the record contained
    sufficient evidence to establish the ground of extreme cruelty.” (Time, supra, 424 U.S. at
    pp. 458–459.)
    As stated by the court in Time, Time magazine “may well argue that the meaning
    of the trial court’s decree was unclear, but this does not license it to choose from among
    several conceivable interpretations the one most damaging to [the ex-wife]. Having
    chosen to follow this tack, [Time magazine] must be able to establish not merely that the
    item reported was a conceivable or plausible interpretation of the decree, but that the item
    was factually correct. We believe there is ample support for the jury’s conclusion,
    affirmed by the Supreme Court of Florida, that this was not the case. There was,
    therefore, sufficient basis for imposing liability upon [Time magazine] if the
    constitutional limitations we announced in Gertz have been satisfied. These are a
    14.
    prohibition against imposing liability without fault, [citation], and the requirement that
    compensatory awards ‘be supported by competent evidence concerning the injury.’”
    (Time, supra, 424 U.S. at p. 459, fns. omitted.)
    In arguing that defendants failed to satisfy the first prong of the anti-SLAPP
    process, i.e., that defendants’ publication of the alleged defamatory statement was not 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’” as defined in subdivision
    (e) of section 425.16, Olin contends his “right to seek redress for the [alleged] defamatory
    statement about him is just as compelling as the [d]efendants’ First Amendment [r]ight”
    and that the Time decision “expressly refutes that all judicial proceedings should matter
    equally with regard to First Amendment protections for reporting”; “that family matters
    … should be given different consideration than other types of judicial proceedings”; and
    that “California has been violating the rights of its residents by treating all judicial
    proceedings the same.” Olin does not elaborate further on any of the aforementioned
    contentions. For reasons discussed below, we disagree.
    First, we note that Time did not concern or address California’s anti-SLAPP
    statute or procedure or any similar statute or procedure. Second , Time’s discussion of
    whether the domestic relations matter was a public controversy and whether the ex-wife
    in Time was a public figure was in the context of whether Time magazine could be held
    liable for defamation without a showing of “actual malice.” (Time, supra, 424 U.S. at pp.
    453–456.) In the case before us, defendants have not, and do not, contend they cannot be
    held liable for alleged defamation on grounds Olin is unable to establish actual malice.
    Thus, the holding in Time is not applicable here.
    Third, California has defined the phrase “‘act in furtherance of a person’s right of
    petition or free speech … in connection with a public issue’” to include “(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
    15.
    authorized by law ….” (§ 425.16, subd. (e)(2).) Here, it is beyond dispute that the
    alleged defamatory statement was “written” and reported on “an issue under
    consideration or review by a … judicial body.” The only question which remains to
    determine whether the first prong of section 425.16 was met is whether the alleged
    defamatory statement was “made in connection with” the domestic relations matters
    before the appellate court that issued the DVRO appellate opinion. (Id., subd. (e)(2).)
    We conclude it was.
    In Sipple, a defendant news magazine published an article concerning a prior
    custody dispute between the plaintiff and his first ex-wife, and alleged abuse suffered by
    the plaintiff’s first and second ex-wives. (Sipple, supra, 71 Cal.App.4th at pp. 230–231.)
    The plaintiff sued the defendant news magazine for libel, interference with contract, and
    intentional interference with prospective economic advantage. (Id. at p. 231.) The
    defendant news magazine then filed an anti-SLAPP motion. (Ibid.) In response, the
    plaintiff argued “his treatment of his previous wives is not a public issue and that the trial
    court erred in finding the article came within the protection of anti-SLAPP legislation.”
    (Id. at p. 236.)
    The Sipple court noted “the California Supreme Court held that a defendant
    making a motion to strike under section 425.16, subdivision (e)(1) and (2) need not
    separately demonstrate that the statement concerned an issue of public significance….
    [I]n crafting the statute, the Legislature equated a ‘public issue’ with the authorized
    official proceeding to which it connects.” (Sipple, supra, 71 Cal.App.4th at pp. 236–237,
    italics added, citing Briggs v. Eden Council for Hope & Opportunity (1999) 
    19 Cal.4th 1106
    , 1118 (Briggs).) Or, as the trial court aptly stated, “[Olin] misapprehends
    subdivision (e)(2) to require the existence of a matter of public concern beyond that of
    the judicial proceeding itself.”
    In Briggs, the California Supreme Court analyzed subdivision (e)(1) and (2) of
    section 425.16 and expressly disapproved of the holding in Zhao v. Wong (1996) 48
    16.
    Cal.App.4th 1114, which stated “‘a lawsuit qualifies as a SLAPP suit only if it challenges
    a statement made in connection with a public issue made in an official proceeding or a
    statement made in connection with a public issue under review in an official
    proceeding.’” (Briggs, 
    supra,
     19 Cal.4th at p. 1113.) Briggs further noted the
    Legislature, in 1997, likewise rejected Zhao’s analysis in enacting subdivision (a) of
    section 425.16, which expressly states, “[T]his section shall be construed broadly.” (See
    Briggs, at p. 1114.)
    Subdivision (e)(1) and (2) of section 425.16 “‘safeguard[s] free speech and
    petition conduct aimed at advancing self government, as well as conduct aimed at more
    mundane pursuits. Under the plain terms of the statute it is the context or setting itself
    that makes the issue a public issue: all that matters is that the First Amendment activity
    take place in an official proceeding or be made in connection with an issue being
    reviewed by an official proceeding.’” (Sipple, supra, 71 Cal.App.4th at p. 237, quoting
    with approval Braun v. Chronicle Publishing Co. (1997) 
    52 Cal.App.4th 1036
    , 1047.)
    Thus, news articles reporting on such proceedings are “within the public issue
    definition.” (Sipple, at p. 237; accord, Braun, at pp. 1048–1049; Lafayette Morehouse,
    Inc. v. Chronicle Publishing Co. (1995) 
    37 Cal.App.4th 855
    , 863 [newspaper articles
    reporting on disputes between neighbors and a university over the university’s decision to
    open its property to the homeless and related hearings by the county board of supervisors
    and related lawsuits are writings “‘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’”].)
    Here, MNC’s reporting on the contents of the DVRO appellate opinion falls
    squarely within the language of subdivision (e)(2) of section 425.16 as interpreted by
    Briggs and Sipple.
    17.
    2.     Olin’s Contention the DVRO Appellate Opinion Indicated It Was
    Not to be Published in the Official Reports Is Not Relevant
    Olin noted the DVRO appellate opinion indicates the opinion was “not to be
    published in the official reports” (boldface and capitalization omitted). He then cites to
    California Rules of Court, rule 8.1115(a), which provides: “Except as provided in (b), an
    opinion of a California Court of Appeal … that is not certified for publication or ordered
    published must not be cited or relied on by a court or a party in any other action.”
    Without any analysis of how this rule of court is relevant to the matter on appeal, Olin
    posits the following question: “How is it [i.e., the DVRO appellate opinion] both an
    officially reported judicial proceeding and an expressly non-officially reported judicial
    proceeding?”
    We fail to appreciate Olin’s argument. The rule of court merely provides that
    other California courts and litigants in those courts may not cite or rely on the opinion. It
    has no effect on a news organization’s ability to report on matters adjudicated by way of
    an appellate opinion that is not published in the Official Reports. And Olin makes no
    attempt to explain his point in his opening brief. “The absence of cogent legal argument
    … allows this court to treat the contention[] as waived.” (In re Marriage of Falcone &
    Fyke (2008) 
    164 Cal.App.4th 814
    , 830.) Olin has forfeited his argument concerning the
    publication status of the DVRO appellate opinion.1
    1 In his reply brief, Olin does attempt to explain his contention that the publication status
    of the DVRO appellate opinion precludes defendants from meeting the first prong of the anti-
    SLAPP process. “‘Points raised for the first time in a reply brief will ordinarily not be
    considered, because such consideration would deprive the respondent of an opportunity to
    counter the argument.’ … ‘“Hence the rule is that points raised in the reply brief for the first
    time will not be considered, unless good reason is shown for failure to present them before.”’”
    (Reichardt v. Hoffman (1997) 
    52 Cal.App.4th 754
    , 764.) Here, although Olin made mention of
    the issue in his opening brief, he provided no argument to which defendants could appropriately
    respond.
    In reviewing his reply argument, it appears Olin is contending that, because the DVRO
    appellate opinion was not published in the Official Reports, the matter was not an official
    proceeding. (We glean this implied position from Olin’s statement in his reply brief that “[t]he
    SLAPP statute expressly only protects official proceedings.” Olin provides no citation to
    18.
    Notwithstanding, we think it appropriate to point out (as defendants did) that
    opinions not slated for publication in the Official Reports are nonetheless published—
    both on the Judicial Council Web site at https://www.courts.ca.gov/opinions-nonpub.htm
    and on Westlaw and Lexis. “[D]epublished and unpublished decisions are now as readily
    available as published cases, thanks to the Internet and technologically savvy legal
    research programs.” (People v. Williams (2009) 
    176 Cal.App.4th 1521
    , 1529.)
    3.      Olin’s Remaining Arguments Do Not Alter Our Opinion that the
    First Prong of the Anti-SLAPP Procedure Was Met by Defendants
    Olin argues “it is not a part of any record that the [p]ermanent DVRO protects
    [Olin’s son]. As it is a fabricated statement, not part of the official record, and therefore
    should not be considered having been made in connection with a public proceeding.”
    Olin further argues defendants’ reporting contains “an incorrect presumption made …
    and published by [defendants] without any fact-verification” and is “on all four tires
    with” the United States Supreme Court’s holding in Time.
    Aside from the above statements, Olin provides no argument, analysis, or citation
    to authority to demonstrate why an error in reporting on a court proceeding places the
    reporting outside the scope of subdivision (e)(2) of section 425.16. We are not
    persuaded. In our view, these contentions are more appropriately considered in
    connection with an analysis of the second prong of the anti-SLAPP procedure—i.e.,
    whether Olin’s claims of defamation and false light have “‘at least “minimal merit.”’”
    (Bonni v. St. Joseph Health System, supra, 11 Cal.5th at p. 1009.)
    We have already determined defendants’ reporting meets the criteria of
    subdivision (e)(2) of section 425.16. Olin’s contentions set forth in the preceding
    paragraph do not alter that conclusion.
    authority for any contention that the DVRO proceedings were not official. That such
    proceedings are official proceedings is not debatable and requires no citation to authority.
    19.
    B.        The Second Prong of the Anti-SLAPP Process Was Not Met by Olin
    The second prong of the anti-SLAPP process is obtained from the final clause of
    section 425.16, subdivision (b)(1). That subdivision reads, in its entirety: “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.” (Ibid.)
    Having determined defendants met the first prong of the anti-SLAPP procedure,
    the burden shifted to Olin to “establish[] that there is a probability [he] will prevail on the
    claim”—i.e., that his causes of action have “‘at least “minimal merit.”’” (Bonni v. St.
    Joseph Health System, supra, 11 Cal.5th at p. 1009 [“[F]or each claim that does arise
    from protected activity, the plaintiff must show the claim has ‘at least “minimal
    merit”’”].) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—
    i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a
    SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 
    29 Cal.4th 82
    , 89.) “[T]he statute poses no obstacle to suits that possess minimal merit.”
    (Id. at p. 93.)
    The trial court found Olin “does not have a probability of establishing, based on
    the facts presented, that the deviation in the article is of such a substantial character that it
    produces a different effect on the reader. The substance of the [DVRO appellate opinion]
    is described accurately [in the MNC news article], and the privilege under Civil Code
    section 47(d)(1) therefore unquestionably applies.”
    Subdivision (d)(1) of Civil Code section 47 provides: “A privileged publication or
    broadcast is one made: [¶] … [¶] (d)(1) By a fair and true report in, or a communication
    to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official
    proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or
    20.
    complaint made by any person to a public official, upon which complaint a warrant has
    been issued.”
    In Sipple, the court, having determined a news magazine’s reporting on a prior
    custody dispute pending in the courts met the first prong of Code of Civil Procedure
    section 425.16, considered whether the privilege conferred by Civil Code section 47,
    subdivision (d) applied. (Sipple, supra, 71 Cal.App.4th at pp. 240–246.) The court noted
    subdivision (d) of Civil Code section 47 has been construed broadly by courts of this
    state and declined the plaintiff’s invitation to stray from this precedent. (Id. at pp. 240–
    241.) “[S]ubstantial public concerns implicated in Civil Code section 47, subdivision (d)
    support the extension of a broad protection over the media.” (Id. at p. 241.)
    “The meaning of a ‘fair and true report’ is well established in California case law.
    It is undenied that a media defendant does not have to justify every word of the alleged
    defamatory material that is published. [Citation.] The media’s responsibility lies in
    ensuring that the ‘gist or sting’ of the report—its very substance—is accurately conveyed.
    [Citation.] Moreover, this responsibility carries with it a certain amount of literary
    license. The reporter is not bound by the straitjacket of the testifier’s exact words; a
    degree of flexibility is tolerated in deciding what is a ‘fair report.’” (McClatchy
    Newspapers, Inc. v. Superior Court (1987) 
    189 Cal.App.3d 961
    , 975–976 (McClatchy).)
    Here, there is no dispute as to the content of MNC’s news article and its amended
    news article. Likewise, there is no dispute as to the content of the DVRO appellate
    opinion that MNC was reporting on. Under such circumstances, courts have decided
    privilege issues under Civil Code section 47 as a matter of law. (McClatchy, supra, 189
    Cal.App.3d at p. 976, citing Kilgore v. Younger (1982) 
    30 Cal.3d 770
    , 777; Jennings v.
    Telegram-Tribune Co. (1985) 
    164 Cal.App.3d 119
    , 127; and Grillo v. Smith (1983) 
    144 Cal.App.3d 868
    , 873–874.)
    Olin contends the alleged defamatory statement “alters the gist and sting of the
    [DVRO appellate opinion] because it falsely implies that when the permanent DVRO was
    21.
    granted Olin was found to be a child abuser.” (Underscoring and some capitalization
    omitted.) Olin argues (we believe correctly) he was never found to be a danger to his
    son. Olin argues the alleged defamatory statement “clearly changes … the allegations
    against [him]” and that “[t]here is no indication anywhere else but in the [d]efendants’
    fabricated statement that the [p]ermanent DVRO included [Olin’s son].” He further
    contends “[t]he restraining order process is intended to be understood by laymen and
    jurors would understand that a [p]ermanent DVRO means that an evidentiary hearing was
    held and that a [t]emporary DVRO is a very different thing—and that so long as the
    allegations alone suggest that there would be a danger to a requested party, the
    [t]emporary [r]estraining [o]rder will be granted, until the hearing.”
    The parties do not dispute the permanent DVRO did not include Olin’s son as a
    protected individual. Defendants contend, however, they did not know this until Olin
    provided them a copy of the permanent DVRO, and the “statement that the DVRO
    applied to Olin’s son was a factual error. However, it was not a reporting error. It was a
    fair inference—if not the only reasonable inference that could be drawn—from the
    [DVRO appellate] opinion reported upon.” As such, defendants contend the trial court
    correctly determined the MNC news article (including the alleged defamatory statement
    therein) is privileged under Civil Code section 47, subdivision (d).
    In order to determine whether MNC’s reporting qualifies as privileged under Civil
    Code section 47, subdivision (d), we have reviewed and compared the DVRO appellate
    opinion and the alleged defamatory statement contained in the MNC articles. (For
    convenience and clarity only, we refer to Olin’s ex-spouse as Kelly.) The DVRO
    appellate opinion recounts the following facts and allegations of fact by Olin and Kelly in
    the proceedings that led to the issuance of the permanent DVRO and that we consider
    relevant to the “gist or sting” of the DVRO appellate opinion: (1) Kelly filed the subject
    “DVRO request against [Olin], listing herself and [their son] as persons to be protected”;
    (2) Olin “‘dumped’ all of their minor child[’s] … belongings in front of [Kelly’s] garage
    22.
    door, in direct view of [the child’s] bedroom window”; (3) Kelly requested the family
    court commissioner to order (a) Olin “cannot ‘[h]arass, attack, strike, threaten, assault …,
    hit, follow, stalk, … disturb the peace’ of Kelly and [their son]’”; (b) Olin “cannot
    ‘[c]ontact [Kelly or [their son]], either directly or indirectly, in any way’; and (c) Olin
    “shall stay at least 100 yards away from Kelly and her home, place of work, and vehicle,
    and from [their son] and the school he attends”; (4) the family court commissioner issued
    a temporary DVRO against Olin “ordering him to stay ‘at least 100 yards away’ from
    Kelly … and from [their son] and the school he attends”; (5) Olin requested a DVRO
    against Kelly upon allegations which included (a) “‘[Kelly] caused my 12-year-old son to
    cheat on me with another father in secret (which is why it was “cheating”) for three
    months[,]’” (underscoring and boldface omitted); (b) “problems began … when [Olin]
    found that [his] son had been cheating on [him] for at least three months” (underscoring
    and boldface omitted) and his son “told [Olin] that his mother had told him to keep all
    knowledge of the man’s existence from [him] and that [his] son had willingly done so”
    (underscoring and boldface omitted); and (c) Kelly “had already demolished [his]
    fatherhood”; (6) “his son … ‘no longer has a home’ with [Olin], so it made ‘no sense for
    [Olin] to have [his son’s] property’ at his house”; (7) during the course of proceedings
    but prior to Kelly filing her request for the subject DVRO, the family court commissioner
    noted Olin filed a document “‘indicating that he wants no visitation with the minor child
    and … that the child is a clear and present danger to his security and safety’” (italics
    added by the court in the DVRO appellate opinion); (8) the family court commissioner
    criticized Olin with the comment, “‘Your legal position—for example, you say that
    you’re angry with [Kelly], because you say that she has caused your 12-year-old child to
    cheat on you, because she has a gentleman in her life. [¶] And I don’t know what the
    relationship between the gentleman in her life and your son is, but a child can’t cheat on
    you. To state—as an attorney, to state that “she has caused my 12-year-old child to cheat
    on me,” and then to send letters and e–mail messages—page-and-a-half-long letters and
    23.
    e-mail messages, not only to her, but to the 12-year-old child, calling him a lying,
    deceitful—and telling the court that having contact with your 12-year-old child is a
    danger to you and your job, and therefore, you want no contact with your child ever
    again …”; and (9) the family court commissioner “found issuance of Kelly’s requested
    restraining order against [Olin] both ‘necessary and appropriate.’ The DVRO was
    effective for five years.”
    We have been unable to find any reference in the DVRO appellate opinion that
    would suggest the permanent DVRO differed from the temporary DVRO that issued
    except as to their duration. Importantly, Olin does not reference any statement in the
    DVRO appellate opinion to suggest otherwise. The opinion noted Kelly requested the
    family court commissioner issue a DVRO that would protect both her and their son, that
    the commissioner found Kelly’s requested order “ both ‘necessary and appropriate,’” and
    that the DVRO was granted. Moreover, the tenor of the DVRO appellate opinion
    suggests Olin’s relationship with his son had deteriorated to a point where Olin expressed
    anger, resentment, and disapproval of his son, and of not wanting any visitation rights.
    Although the DVRO appellate opinion was obviously imprecise in its description of the
    permanent DVRO that issued, the facts recited in the opinion leave no room for an
    inference that the permanent DVRO did not protect Kelly and their son.
    Olin argues the MNC article impliedly and wrongfully brands him a child
    “abuser.” In fact, the Domestic Violence Prevention Act (DVPA) (Fam. Code § 6200 et
    seq.) authorizes a court to “issue a protective order ‘“to restrain any person for the
    purpose of preventing a recurrence of domestic violence and ensuring a period of
    separation of the persons involved’ upon ‘reasonable proof of a past act or acts of
    abuse.’”’” (Curcio v. Pels (2020) 
    47 Cal.App.5th 1
    , 11.) “Abuse[, however,] is not
    limited to the actual infliction of physical injury or assault” under the DVPA. (Fam.
    Code § 6203, subd. (b).) Conduct that might lead to the issuance of a DVRO includes
    “‘disturbing the peace of the other party’ ([Fam. Code,] § 6320, subd. (a)), which ‘may be
    24.
    properly understood as conduct that destroys [another’s] mental or emotional calm.’”
    (Curcio, at p. 11.) Such conduct “may be committed directly or indirectly.” (Fam. Code
    § 6320, subd. (c).) The facts and allegations of fact described in the DVRO appellate
    opinion—whether true or not—which, by all appearances, led to the issuance of the
    permanent DVRO might well lead a reader of the opinion to conclude Olin’s activity met
    this broad definition of “abuse.” That MNC’s reporting (which made no express
    allegation of such conduct) might do the same is a natural, albeit regrettable, consequence
    of a fair and true report of the opinion.
    The DVRO appellate opinion was extremely critical of Olin and his stated position
    toward his son. MNC’s articles did not alter the gist or sting of the DVRO appellate
    opinion. We conclude, as a matter of law, MNC’s articles were a “fair and true report” of
    the contents of the DVRO appellate opinion as that phrase is used in subdivision (d)(1) of
    Civil Code section 47, and we affirm the court’s order granting defendants’ special
    motion to strike under Code of Civil Procedure section 425.16.
    IV.    Attorney Fee Issues
    A.     Standard of Review
    Olin contends the facts relevant to the attorney fee award rendered by the trial
    court are undisputed. We agree. Where the facts relevant to a trial court’s award of
    attorney fees are undisputed, an appellate court “review[s] the legal basis for an attorney
    fee award de novo.” (People ex rel. Dept. of Corporations v. Speedee Oil Change
    Systems, Inc. (2007) 
    147 Cal.App.4th 424
    , 428.) However, “ascertaining the fee amount
    is left to the trial court’s sound discretion.” (Christian Research Institute v. Alnor (2008)
    
    165 Cal.App.4th 1315
    , 1321.) Thus, we review the trial court’s determination that the
    corporate defendants were entitled to an award of attorney fees de novo but review the
    amount of the award for abuse of discretion.
    25.
    B.     The Trial Court Erred in Granting the Corporate Defendants’ Motion
    for Attorney Fees
    Olin contends the trial court erred in awarding defendants MNC and GCI attorney
    fees because (1) they were represented by fellow defendant R. Grace who, along with his
    spouse, defendant J. Grace, are the sole owners of MNC and GCI, and (2) R. Grace is not
    an independent third-party in-house counsel and is representing his own interests.
    Subject to exceptions not relevant here, subdivision (c)(1) of section 425.16
    provides that “a prevailing defendant on a special motion to strike shall be entitled to
    recover that defendant’s attorney’s fees and costs.…” The case law on who may recoup
    attorney fees and under what conditions is extensive. We examine some relevant cases
    below.
    In Trope v. Katz (1995) 
    11 Cal.4th 274
     (Trope), a law firm sued to enforce a
    contract containing an attorney fee provision against a nonpaying client. (Id. at pp. 277–
    278.) The law firm represented itself in the litigation and obtained a judgment in its
    favor. (Id. at p. 278.) However, the trial court denied the law firm its request for attorney
    fees and the court of appeal affirmed. (Ibid.) The matter made its way to our state
    Supreme Court, which held that “an attorney who chooses to litigate in propria persona
    and therefore does not pay or become liable to pay consideration in exchange for legal
    representation cannot recover ‘reasonable attorney’s fees’ under [Civil Code] section
    1717 as compensation for the time and effort he expends on his own behalf or for the
    professional business opportunities he forgoes as a result of his decision.” (Trope, at p.
    292.)
    In PLCM Group, Inc. v. Drexler (2000) 
    22 Cal.4th 1084
     (PLCM), the California
    Supreme Court held that “an entity that is represented by in-house counsel may recover
    attorney fees under Civil Code section 1717.” (Id. at p. 1088; see Civ. Code, § 1717,
    subd. (a).) Our high court explained its rationale in Trope, as follows: (1) “the term
    ‘attorney fees’ implies the existence of an attorney-client relationship, i.e., a party
    26.
    receiving professional services from a lawyer”; (2) to allow an award to an attorney
    representing himself in propria persona “would constitute disparate treatment, inimical to
    a statute [i.e., Civil Code section 1717,] designed to establish mutuality of remedy”—that
    is, an attorney representing himself in propria persona in a contractual dispute would be
    able to recoup attorney fees whereas a nonattorney representing himself in the same
    dispute would not be able to obtain such an award; and (3) the phrase “attorney fees”
    ordinarily means “consideration that a litigant actually pays or becomes liable to pay for
    legal representation.” (PLCM, supra, 22 Cal.4th at p. 1092.)
    PLCM noted that, in the case of in-house counsel, “[t]here is no problem of
    disparate treatment; in-house attorneys, like private counsel but unlike pro se litigants, do
    not represent their own personal interests and are not seeking remuneration simply for
    lost opportunity costs that could not be recouped by a nonlawyer. A corporation
    represented by in-house counsel is in an agency relationship, i.e., it has hired an attorney
    to provide professional legal services on its behalf. Nor is there any impediment to the
    effective and successful prosecution of meritorious claims because of possible ethical
    conflict or emotional investment in the outcome. The fact that in-house counsel is
    employed by the corporation does not alter the fact of representation by an independent
    third party. Instead, the payment of a salary to in-house attorneys is analogous to hiring a
    private firm on retainer.” (PLCM, supra, 22 Cal.4th at p. 1093.) PLCM also noted
    another distinction between pro se litigants and corporations represented by in-house
    counsel: “‘[A]n organization is not comparable to a pro se litigant because the
    organization is always represented by counsel, whether in-house or pro bono, and thus,
    there is always an attorney-client relationship.’” (Id. at p. 1094, quoting with approval
    Kay v. Ehrler (1991) 
    499 U.S. 432
    , 436, fn. 7.)
    In Ramona Unified School Dist. v. Tsiknas (2005) 
    135 Cal.App.4th 510
     (Ramona
    Unified), an environmental group filed an unsuccessful writ petition alleging a school
    district failed to comply with the California Environmental Quality Act in seeking to
    27.
    construct a new school. (Id. at p. 514.) Following dismissal of the action, the school
    district filed an action for abuse of process and barratry against the environmental group
    and its attorney. (Ibid.) The defendants then moved to strike the complaint under section
    425.16 and the trial court granted the motion and subsequently awarded attorney fees to
    the defendants. (Ibid.) The school district appealed the award and argued that, under
    Trope, the award should not have included fees for time spent by the environmental
    group’s attorney in defending the case because the attorney was a pro se litigant.
    (Ramona Unified, at p. 523.)
    The Ramona Unified court held Trope did not bar the award. (Ramona Unified,
    supra, 135 Cal.App.4th at p. 523.) It wrote “PLCM pointed out ‘that, by definition, the
    term “attorney fees” implies the existence of an attorney-client relationship, i.e., a party
    receiving professional services from a lawyer.’ [Citations.] Where an attorney-client
    relationship exists, the courts uniformly allow for the recovery of attorney fees under
    Civil Code section 1717.” (Ramona Unified, at p. 524.) It continued, “Cases that have
    allowed the recovery of attorney fees under the anti-SLAPP statute are similarly marked
    by the existence of an attorney-client relationship.” (Ibid., citing numerous cases.) The
    “decisional authority and the plain language of section 425.16, subdivision (c) support the
    conclusion that the commonly understood definition of attorney fees applies with equal
    force to section 425.16 and a prevailing defendant is entitled to recover attorney fees if
    represented by counsel.” (Ramona Unified, at p. 524.) The court expressly held that
    “[b]ecause an attorney-client relationship existed between the prevailing defendants and
    [their codefendant attorney], Trope does not preclude the award of attorney fees merely
    because [said attorney] was a codefendant with the nonattorney clients to whom she
    provided legal assistance.” (Id. at p. 525.)
    In Carpenter & Zuckerman, LLP v. Cohen (2011) 
    195 Cal.App.4th 373
    , the
    defendants filed a cross-complaint against a plaintiff law firm and its partners for alleged
    interference with economic advantage and defamation. (Id. at p. 376.) The plaintiffs
    28.
    successfully moved to strike the cross-complaint pursuant to section 425.16 but were
    denied their request for attorney fees under the statute. (195 Cal.App.4th at p. 376.) The
    Carpenter court determined substantial evidence supported the trial court’s finding the
    plaintiff law firm had been represented in the action by one of its associates and not by an
    independent contractor. (Ibid.) The appellate court affirmed the order denying attorney
    fees, writing “the trial court was justified in concluding that based on the record , the
    individual plaintiffs could not recover attorney fees in connection with the appeal because
    there was no showing of any distinction between the cross-claims against the law firm
    plaintiff and those against the individual plaintiffs.” (Ibid.)
    In Gilbert v. Master Washer & Stamping Co., Inc. (2001) 
    87 Cal.App.4th 212
    (Gilbert), the plaintiff sued the defendant for breach of a lease and for attorney fees. (Id.
    at p. 214.) In a separate action, the defendant sued the plaintiff for breach of contract and
    conversion of its property. (Ibid.) The defendant also sued the plaintiff’s attorney for his
    role in preventing the defendant from obtaining its property from the leased premises.
    (Ibid.) The attorney was successful in getting the various claims against him dismissed
    by way of demurrer and summary judgment. (Id. at pp. 214–215.) However, the trial
    court denied the attorney an award of attorney fees because he was represented by
    attorneys in his own law firm. (Id. at p. 217.)
    On appeal, the Gilbert court concluded the attorney who was sued did, in fact,
    incur attorney fees and that Trope did not bar an award of attorney fees. (Gilbert, supra,
    87 Cal.App.4th at pp. 221–222.) The court described its holding, as follows: “[W]e hold
    a lawyer represented by other members of his law firm is entitled to recover reasonable
    attorney fees where the representation involved the lawyer’s personal interests and not
    those of the firm.” (Id. at p. 214.)
    Here, the trial court granted the corporate defendants’ motion for attorney fees
    largely upon the existence of an attorney-client relationship between R. Grace and the
    corporate defendants. Citing Ramona Unified, supra, 135 Cal.App.4th at page 524, the
    29.
    court noted “‘[c]ases that have allowed the recovery of attorney fees under the anti-
    SLAPP statute are … marked by the existence of an attorney-client relationship ….” It
    further noted that “[t]he court in [Gilbert] found the existence of an attorney-client
    relationship dispositive in deciding whether to award fees and distinguishing cases where
    fees were denied.” The court noted “many of the reasons set forth in PLCM which
    permit attorney’s fees for in-house counsel are not present here,” and then went on to
    describe the differences. The court continued, “[h]owever, the [c]ourt finds, as it must,
    that a corporation must be represented and is always represented by counsel in active
    litigation and therefore, an attorney-client relationship must exist. This attorney-client
    relationship provides the basis for awarding fees to the corporate … [d]efendants.”
    Olin contends R. Grace did no work for the corporate defendants that he would not
    have done for himself and his spouse, J. Grace. He argues, “in representing the
    corporations he and his wife wholly own and wholly operate, [R.] Grace was not an
    independent third-party attorney and, instead, represented only what were inarguably his
    own personal interests in representing all four [d]efendants, and therefore, [R.] Grace was
    an entirely self-representing attorney and cannot recover any attorneys’ fees.”
    Defendants cite to no authority in response to Olin’s argument. They simply note
    (1) section 425.16, subdivision (c)(1) provides “a prevailing defendant on a special
    motion to strike shall be entitled to recover [his or her] attorney’s fees and costs”; (2)
    “[t]he award was in favor of two corporations, not defendant … [R.] Grace”; and (3) the
    trial court reduced the award “based on the judge’s assessment of how many hours should
    have been expended and ‘additionally on apportionment for work performed on behalf of
    the corporations only.’” Defendants conclude by stating, “The meager award should not
    be disturbed.”
    We believe Olin’s position has merit under the facts of this case.
    In his declaration in support of the corporate defendants’ motion for attorney fees,
    R. Grace noted MNC is a wholly owned subsidiary of GCI, and he is the president of
    30.
    GCI, vice-president of MNC, and senior general counsel for both. He further admitted he
    is the editor and chief writer for the publication, and he and his spouse are copublishers
    of the publication. In their brief in support of the motion for attorney fees, defendants
    admit the corporate defendants “are entities wholly owned by” R. Grace and J. Grace
    and, although denying any alter-ego relationship between the Grace defendants and the
    corporate defendants, “defendants acknowledge that there was no ‘arms-length’”
    relationship between them.
    Notably, R. Grace, in his declaration in support of the anti-SLAPP motion,
    admitted he wrote the original article that contained the alleged defamatory statement.
    R. Grace was involved in the decision to have MNC publish the article, i.e., he sent Olin
    an e-mail asking for “his comment, for publication, on the Court of Appeal’s opinion in
    Marriage of Olin. To maximize accuracy in reporting his position, [R. Grace] asked for a
    copy of [Olin’s] appellate brief.” R. Grace further indicated that, had he received a
    response from Olin advising him of the terms of the permanent DVRO, he “would have
    eliminated reference to [Olin’s] son in the article … or noted his statement.” Finally,
    upon subsequently being informed of the terms of the permanent DVRO, R. Grace
    personally “altered [the] online version of the article by adding a preface” to the article.
    Although there may have been an attorney-client relationship between R. Grace
    and the corporate defendants, we do not view that as dispositive of the question of
    whether the corporate defendants may obtain an attorney fee award for R. Grace’s
    representation. R. Grace was not acting as an independent third party in representing the
    corporate defendants. Unlike the in-house counsel relationship discussed in PLCM,
    R. Grace was representing his personal interests in the litigation, which were largely one
    and the same with the corporate defendants’ interests. And, unlike PLCM, there was not
    an absence of “possible ethical conflict or emotional investment in the outcome” of
    Olin’s lawsuit. (PLCM, supra, 22 Cal.4th at p. 1093.) R. Grace was the author of the
    alleged defamatory statement and appears to have made the decision to publish the
    31.
    subject article(s) in his capacity as copublisher. Given the Grace defendants’ complete
    ownership and control of the corporate defendants, any judgment that might have issued
    against the corporate defendants would have been to the detriment of R. Grace and
    J. Grace. Under such circumstances, to allow the corporate defendants to obtain an
    attorney fee award simply because R. Grace and J. Grace do business under a wholly
    owned corporation would be to elevate form over substance.
    We believe the trial court placed undue emphasis on the existence of an attorney-
    client relationship as the primary (if not sole) basis for its award. The existence of such a
    relationship is not dispositive. Notably, although the Gilbert court did recognize such a
    relationship is necessary to an attorney fee award (Gilbert, supra, 87 Cal.App.4th at pp.
    222–223), it also premised its holding on the fact “the representation involved the
    lawyer’s personal interests and not those of the firm” that represented him (id. at p. 214,
    italics added). Ramona Unified is similar to Gilbert in that respect. There, the court
    allowed an attorney fee recovery for work performed by a codefendant attorney but the
    offending conduct alleged against the attorney stemmed from legal work she performed
    in advancing her clients’ interests and not her own. (Ramona Unified, supra, 135
    Cal.App.4th at pp. 515–519.)
    As discussed ante, the factors that led PLCM to conclude a corporation may
    recoup attorney fees under Civil Code section 1717 for services rendered by in-house
    counsel are not present here. Rather, this case is more like Carpenter, where the court
    upheld the trial court’s denial of attorney fees “because there was no showing of any
    distinction between the cross-claims against the law firm plaintiff and those against the
    individual plaintiffs.” (Carpenter & Zuckerman, LLP v. Cohen, supra, 195 Cal.App.4th
    at p. 376.) Here, there is no distinction between the claims against R. Grace and the
    corporate defendants.
    We conclude the trial court erred in awarding attorney fees to the corporate
    defendants.
    32.
    DISPOSITION
    The order granting defendants’ special motion to strike pursuant to section 425.16
    is affirmed. The order granting defendants’ attorney fees is reversed. The trial court
    shall enter a modified judgment consistent with the opinion. As modified , the judgment
    is affirmed.
    PEÑA, J.
    WE CONCUR:
    LEVY, Acting P. J.
    DETJEN, J.
    33.