Opinion
G060315
07-13-2022
MOBILE FARMING SYSTEMS, Inc., Cross-Complainant and Appellant, v. HORWITZ+ ARMSTRONG et al., Cross-Defendants and Respondents.
Catanzarite Law Corporation, Kenneth J. Catanzarite and Nicole M. Catanzarite-Woodward for Cross-Complainants and Appellants. Lockett + Horwitz, Lawrence W. Horwitz and John R. Armstrong for Cross-Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2020-01145998, Randall J. Sherman, Judge. Reversed.
Catanzarite Law Corporation, Kenneth J. Catanzarite and Nicole M. Catanzarite-Woodward for Cross-Complainants and Appellants.
Lockett + Horwitz, Lawrence W. Horwitz and John R. Armstrong for Cross-Defendants and Respondents.
OPINION
O'LEARY, P.J.
Within a one-year period, Catanzarite Law Corporation (Catanzarite) filed multiple lawsuits, all arising from a dispute between the shareholders and directors of Mobile Farming Systems (MFS) and Cultivation Technologies, Inc. (CTI). In 2021, we considered three consolidated appeals concerning CTI motion to disqualify Catanzarite in four cases. (FinCanna v. Cultivation Technologies, Inc. (June 28, 2021, G058700) [nonpub. opn.] (FinCanna).) We affirmed the court's ruling disqualifying Catanzarite from concurrently representing parties and corporations having conflicting interests. (Ibid) Since then, more lawsuits have been filed, followed by a flood of special motions to strike (anti-SLAPP motion) (Code Civ. Proc., § 425.16).
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
CTI (represented by Horwitz+ Armstrong) filed a lawsuit against Catanzarite, Kenneth Catanzarite, and two of the law firm's clients. We recently considered two appeals arising from anti-SLAPP rulings made in CTI's lawsuit. (Cultivation Technologies, Inc., v. Duffe (Nov. 12, 2021, G059457) [nonpub. opn.] (Cultivation).) We affirmed most of the court's rulings but reversed orders granting Cooper and Duffy's anti-SLAPP motion. (Ibid) In sum, the defendants' anti-SLAPP motions were not successful.
One of CTI's directors, Justin S. Beck filed a malicious prosecution action (the Beck Action) against Catanzarite Law Corporation, several of its attorneys, and a handful of its clients, which included Mobile Farming Systems, Inc. (MFS). MFS (represented by Catanzarite) filed a cross-complaint against Beck, his companies, and people/entities he associated with. Relevant to this appeal, MFS's cross-complaint named CTI's corporate counsel Horwitz + Armstrong, as well as the firm's partners, Lawrence W. Horwitz and John R. Armstrong (collectively referred to hereafter in the singular as Horwitz). The gravamen of the claims against Horwitz was that it concurrently represented adverse parties (MFS and CTI), but only assisted CTI in business dealings to MFS 's detriment.
The Beck Action and cross-complaint generated a total of five anti-SLAPP motions. In this appeal, Catanzarite challenges the trial court's decision to grant Horwitz's anti-SLAPP motion to the cross-complaint. Concurrent with this appeal, we considered rulings made by a different trial court, granting four anti-SLAPP motions filed by Catazarite, its attorneys, and three MFS shareholders in Beck's Action. (Beck v. Catanzarite Law Corporation et al. (July 13, 2022, G059766) [nonpub. opn.].)
We are sympathetic to the trial court's likely frustration with the lengthy briefing and frivolous evidentiary objections to Horwitz's anti-SLAPP motion. We also agree with the trial court's conclusion there was no evidentiary support for the crosscomplaint because MFS cannot prove it retained Horwitz as its corporate counsel. However, absence of an attorney-client relationship is grounds for a future summary judgment motion or malicious prosecution action, not an anti-SLAPP motion. The first and second prongs of anti-SLAPP analysis cannot be commingled. Because the crosscomplaint does not contain claims arising from protected speech or petitioning activity, we must reverse the order granting the anti-SLAPP motion.
FACTS
Our prior opinions set forth a detailed account of the excessive litigation leading up to Beck's lawsuit and MFS's cross-complaint, which we incorporate by reference. (FinCanna, supra, G058700 [for consistency we will continue to refer to the Catanzarite series of lawsuits as the Pinkerton Action, the MFS Action, the Mesa Action, the Cooper Action, the FinCanna Action, and the Scottsdale Action].) We will limit our factual summary to the current dispute between MPS/Catanzarite and Horwitz.
MFS's cross-complaint alleged it retained Horwitz as its legal counsel in 2015. The complaint stated Beck introduced Horwitz to MFS, "and they, with [attorney Robert A.] Bernheimer, develop[ed] the plan and scheme to convert the MFS business opportunity to and for themselves and cover it up with a bogus friends and family stock issuance to MFS stockholders." MFS explained its discovery of the attorney-client relationship with Horwitz was delayed because in 2015 Richard J. Probst controlled MFS's records and accounts and he did not distribute financial statements to MFS investor lenders or shareholders.
In this opinion, for ease of reading, we have fixed grammatical errors and omitted unnecessary capitalization and boldface when quoting from the parties' documents and the trial court's ruling.
The complaint contained the following supporting allegations regarding MFS's attorney-client relationships: (1) "Unknown until June of 2020, MFS had engaged Bernheimer ... as its counsel and paid ... a retainer in April 2015, and additionally engaged Horwitz ... paying a retainer ... in May 2015"; (2) "Upon information and belief, Horwitz ... has no written retainer agreement and hence no limitation on the legal services and indeed duties to MFS"; (3) "Further, Beck had a preexisting attorney-client relationship with Horwitz ... which they did not disclose in any conflicts of interest waiver (written or otherwise) in their representing MFS while simultaneously representing Beck, which would not have been approved even had one been presented."
MFS's cross-complaint against Horwitz alleged claims for breach of fiduciary duty, fraud and deceit, conversion, legal malpractice, and violation of Business and Professions Code section 17200 et seq. The relevant factual allegations included Horwitz's purported breach of its fiduciary duty to its client MFS by (1) conspiring with CTI to steal 28,000,000 shares of CTI stock from May of 2015 through July of 2015, and (2) assisting Beck and Probst with various activities contrary to MFS's business interests. It was alleged Horwitz's representation of CTI enabled it to improperly rescind 28,000,000 CTI shares that MFS allegedly purchased. The fraud and deceit, legal malpractice, and unfair business practice claims were also premised on Horwitz taking an adverse position in the shareholder dispute between MFS and CTI by representing an adversarial party (CTI) and assisting CTI in rescinding 28,000,000 CTI shares. All claims were premised on the factual assertion MFS lawfully retained Horwitz and CTI did not.
Horwitz moved to strike the complaint on the grounds the lawsuit was meritless and "intended to interfere with and disrupt moving parties' legal right to lawfully represent their clients in litigation and in anticipation of litigation." Horwitz maintained, "MFS and its attorneys are aware that all of MFS claims are barred by the litigation privilege [citations], in that the gist of all of MFS's claims are that the foregoing attorneys 'conspired' with their client ... [CTI] to defraud or otherwise injure MFS, and by the limitations periods barring stale claims against lawyers for alleged malpractice and fraud [citations]."
Horwitz explained, "To get around the litigation privilege, MFS falsely claims that it was the foregoing lawyers' client, despite having no retainer agreement, no invoices, no meetings with the foregoing lawyers, and no ordinary business records a company would normally have if it retained an attorney. MFS claims that it has a single cancelled check payable to the law firm of Horwitz + Armstrong, however even if such check exists, that alone would not create an attorney-client relationship without more, as MFS could have paid monies owed to Horwitz + Armstrong for something or someone else. [if] This is because a plaintiff cannot unilaterally establish an attorney-client relationship, and its hindsight 'beliefs' that such a relationship existed are thus legally irrelevant. Instead, it is the intent and conduct of both parties that controls the question as to whether an attorney-client relationship has been created." Horwitz added MFS's claims were barred by the litigation privilege because all the claims refer to the firm's legal representation of CTI in anticipation of litigation.
Horwitz's attorneys provided supporting declarations stating it was the firm's practice to create written retainer agreements for every client and create a file folder for clients. Neither of the firm's partners (Horwitz nor Armstrong) had any recollection of being retained by MFS. They each declared to have reviewed all the firm's billing information, retainer agreements, and file systems. They determined the firm had no information indicating there was an attorney-client relationship. They searched records for invoices, correspondence, and e-mails mentioning MFS as a client, but found none.
Horwitz stated MFS did not appear in the firm's accounts receivables list and MFS never deposited money in the firm's trust account. Horwitz admitted he spoke with Probst about creating CTI, and at the time he understood Probst was MFS's former CEO. "To such end, my firm formed [CTI] and has acted as general counsel for CTI since." He added his firm successfully disqualified Catanzarite from attempting to represent CTI and suing on its behalf.
Armstrong stated he first learned about MFS in 2019 when the firm was hired to disqualify the Catanzarite firm for inappropriately attempting to represent CTI. He stated that based on his review of the firm's records the only attorney-client relationship was between CTI and Beck "with ... Beck's representation being on umelated matters that were completed before our firm started representing CTI." He concluded, "The only legal advice either myself or my firm gave to anyone would have been to CTI or to ... Beck before my firm was engaged to represented CTI."
The motion was also supported by Probst's declaration. Probst stated he was a founding member and chief financial officer before 2015 and through the end of that year. He was responsible for reviewing all contracts, including retainer agreements for MFS. He declared "[a]t no time in any of my roles" at MFS did the company ever retain Horwitz, and the firm/attorneys never sent an invoice to MFS.
MFS opposed the motion and requested sanctions, claiming the motion was frivolous. It maintained Horwitz made no attempt to discuss the two prong test used for anti-SLAPP motions. MFS argued that if there is no evidence the cross-complaint arose from protected activity, there was no reason to consider prong two, i.e., MFS's probability of prevailing. MFS did not assert its action had actual merit, and instead focused on disputing the statute of limitations and litigation privilege defenses.
MFS submitted Richard Francis O'Connor's declaration. He claimed to have been a director and officer of MFS since 2011. After providing irrelevant information about MFS's formation and business dealings, 0' Connor admitted that although he was MFS's chief executive officer (CEO), he did not have access to CTI or MFS's books, ledgers, records, money, and property. He claimed only Probst could see those documents. He asserted that in 2020, his "present counsel" showed him these records and he discovered MFS retained Horwitz in early 2015. This was the first time he saw MFS made a payment to Horwitz.
Kenneth Catanzarite submitted a declaration stating his firm was the attorney of record for MFS. He attached, as exhibit No. 4, a redacted copy of MFS's ledger. He asserted Probst produced this document during other litigation in June 2020. The ledger provides the following entry: "06/08/2015 Expense Horowitz+ Armstrong LLP Bof A Checking 2,500.00 50,676.68."
Catanzarite submitted evidentiary objections to the three declarations submitted in support of the anti-SLAPP. He made 15 objections to Horwitz's declaration, claiming the statements were hearsay, unintelligible, irrelevant, "[a]sserts facts not in evidence," argumentative and violated Evidence Code section 352. He raised 17 similar objections to Armstrong's declaration and three objections to Probst's declaration.
At the hearing, Horwitz argued the gist of the cross-complaint was the firm's role in helping CTI rescind a contract it had with MFS regarding a share transfer. Counsel argued "rescission by definition" was "pre-litigation type conduct or something where there's an anticipation of future legal proceedings or an intent to avoid future legal proceedings, so that meets the first prong." Counsel added, "It's not just did litigation commence or you're getting sued, but is there anticipation of litigation." Horwitz's counsel concluded that in addition to the firm helping its client in the rescission, MFS complained about "about the manner in which we represented [CTI] in litigation and other things."
Catanzarite disagreed, stating pre-litigation conduct must relate to a lawsuit being "contemplated in good faith and under serious consideration." He noted the crosscomplaint did not make any allegations regarding an anticipated lawsuit, but rather focused on the perceived misconduct of MFS's counsel in 2015 in helping a different client to MFS 's detriment.
On the record, the court stated the case was primarily about MFS suing its opponent's lawyers, making the rational for the anti-SLAPP statute applicable. It noted the large body of case law concerning anti-SLAPP created a "very difficult area of the law to get a hold on because these cases seem to be ... all over the place, inconsistent, [and it was] not easy to get a cohesive theory on what the law is. You know, it's just a very technically complex area."
The court granted the motion and overruled MFS's evidentiary objections. In its minute order, the court concluded there was well established case authority holding that when a non-client plaintiff alleges unmeritorious causes of action against someone else's lawyer based on that lawyer's representation of their client, an anti-SLAPP motion was appropriate. (Citing Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141 (Thayer).) The court concluded Horwitz met its burden of showing the actions on behalf of its client CTI and against MFS were in furtherance of the constitutional rights of petition or free speech in connection with a public issue. The court determined MFS did not meet its burden of establishing a probability of prevailing because the claims lacked evidentiary support and were time barred.
DISCUSSION
I. Applicable Law and Standard of Review
Section 425.16 authorizes a special motion to strike claims arising from any act "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." (§ 425.16, subd. (b)(1).) The purpose of the anti-SLAPP statute is to encourage participation in matters of public significance by allowing defendants "to request early judicial screening oflegal claims targeting free speech or petitioning activities." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880-881.)
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16, and if the defendant makes this showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. [Citation.]" (Wittenberg v. Bornstein (2020) 50 Cal.App.5th 303, 311.) '""An appellate court reviews an order granting an anti-SLAPP motion under a de novo standard. [Citation.] In other words, we employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted." [Citation.]' [Citation.]" (Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 150 (Sprengel).)
II. The First Prong
In the briefing, Horwitz refers to, but does not directly respond to, MFS's argument the anti-SLAPP statute does not apply because the cross-complaint did not raise any claims based on action "'in anticipation oflitigation"' or "'did not constitute protected petitioning activities"' Instead, Horwitz points to the trial court ruling, noting the court had experience presiding over many of Catanzarite's lawsuits against CTI and correctly cited to case authority holding "a non-client suing another party's attorney falls squarely within anti-SLAPP." There are several problems with this analysis.
The first issue is Horwitz cannot rely on cases relating to a non-client suing an opposing party's counsel because MFS repeatedly alleged its claims were based on its status as Horwitz's client. Arguments "regarding the absence of an attorney-client relationship with [MFS] improperly conflate the first and second prongs of the section 425.16 test. 'The sole inquiry' under the first prong of the test is whether the plaintiffs claims arise from protected speech or petitioning activity. [Citation.] In making this determination, '[w]e do not consider the veracity of [the plaintiffs] allegations' [citation] nor do we consider' [m]erits based arguments.' [Citations.] If the defendant demonstrates the plaintiffs claims do arise from protected activity, we then review the potential merits of the plaintiffs claims in the second step of the analysis. [Citation.] However, '[w]here [defendant] cannot meet his threshold showing, the fact he "might be able to otherwise prevail on the merits under the 'probability' step is irrelevant."' [Citation.] Whether [MFS] actually shared an attorney-client relationship with defendants relates to the merits of [its] claims and is therefore not relevant to our first prong analysis. Although defendants may ultimately defeat [MFS's] claims by proving the absence of an attorney-client relationship, that does not alter the substance of her claims. [Citation.]" (Sprengel, supra, 241 Cal.App.4th at pp. 156-157, fns. omitted; Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491; Coretronic Corp. v. Cozen 0 'Connor (2011) 192 Cal.App.4th 1381, 1388 ["[a]rguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis"]; Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 ["[m]erits based arguments have no place in our threshold analysis of whether plaintiffs' causes of action arise from protected activity"].)
The facts of Sprengel, supra, 241 Cal.App.4th 140, are illustrative. There, plaintiff and a business partner were co-owners of a limited liability corporation (LLC) and had a dispute. The business partner hired an attorney to represent the LLC "related to the dispute with" plaintiff. (Id at p. 144.) Plaintiff filed a complaint for involuntary dissolution against her business partner and the LLC, and also filed a separate action against the partner. The defendant attorneys represented LLC in the litigation and pursued a claim against plaintiff. (Id at pp. 144-145.) This prompted plaintiff to file a malpractice action against the defendant attorneys, alleging they violated the duty of loyalty owed to her by pursuing her business partner's interests in the lawsuits plaintiff filed. (Id at p. 146.) The attorneys filed an anti-SLAPP motion, arguing all the claims were falsely premised on an attorney-client relationship that did not exist. (Id at p. 147.) The appellate court disagreed, holding the issue of whether plaintiff actually shared an attorney-client relationship with defendants related to the merits of her claims and was not relevant to the court's first prong analysis. (Id at p. 156.)
Another instructive case is Yeager v. Holt (2018) 23 Cal.App.5th 450. In that case, plaintiffs sued defendants Peter Holt, the Holt Law Firm, and Bethany Holt for professional negligence, and in response, defendants filed an anti-SLAPP motion with a supporting declaration stating that Bethany Holt had nothing to do with defendant law firm. (Id at pp. 454-455.) The court denied the motion on the well settled grounds "that a typical attorney malpractice suit is not subject to the anti-SLAPP procedures" because the allegations do not arise from protected activity. (Id at pp. 457-458.) Acknowledging there was evidence Bethany Holt was not involved with the law firm that allegedly provided negligent legal services, the court observed, "Although there may be sound reasons why this case will not succeed, either in whole or in part, filing an anti-SLAPP motion was not an effective way to litigate it." (Id at p. 461 &fn. 7.)
In the briefing, Horwitz states the trial court correctly relied on a body of case law holding "a non-client suing another party's attorneys falls squarely within anti-SLAPP." (Referring to Thayer, supra, 207 Cal.App.4th at p. 154, & Peregrine Funding, Inc. v. Sheppard Mullin Richer & Hampton LLP (2005) 133 Cal.App.4th 658.) However, in those cases there was no dispute about whether plaintiff was a client.
Our review of the cross-complaint confirms there were no allegations arising from protected activity. As discussed in our factual summary, there were numerous allegations relating to Horwitz's purported breach of various professional duties arising from its attorney-client relationship with MFS. All MFS's complaints regarding the law firm date back to 2015, when it allegedly was concurrently representing two parties having adverse interests. Contrary to Horwitz's counsel's representations at the hearing, there is nothing in the cross-complaint suggesting the alleged misconduct related to imminent, anticipated legal proceedings. We recall from our review of other appeals, concerning these same parties, that no litigation was initiated until four years after CTI's formation and recission of shares purportedly promised to MFS. Indeed, CTI and MFS did not begin filing lawsuits until after they were both sued by a single disgruntled MFS shareholder. (See FinCanna, supra, G058700 [discussing Pinkerton Action filed September 2018].) As mentioned above, legal malpractice type allegations, brought by clients or former clients against their attorneys, do not trigger the anti-SLAPP statute. (See, e.g., PrediWave Corp. v. Simpson Thacher &Bartlett LLP (2009) 179 Cal.App.4th 1204 [actions by clients/former clients differ from actions by non-clients against attorneys representing other parties, which trigger anti-SLAPP statute].)
Based on Horwitz's and the trial court's comments at the hearing, we appreciate there was some confusion about what pre-litigation conduct can be used for an anti-SLAPP motion. Generally speaking, "The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. [Citation.] Indeed, courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.' [Citation.]" (Kolar v. Donahue, McIntosh &Hammerton (2006) 145 Cal.App.4th 1532, 1537.)
However, litigation-related activities are more specifically defined when an anti-SLAPP motion is based on activities taking place before trial. "[O]ur Supreme Court has explained that communications that are "'preparatory to or in anticipation of the bringing of an action or other official proceeding"' are within the scope of protected conduct under [the statute] just as they are within the protection of the litigation privilege under Civil Code section 47, subdivision (b). [Citations.] [if] Such conduct 'preparatory to' litigation can include communications in connection with counseling or encouraging others to sue. For example, in Briggs [v. Eden Council for Hope &Opportunity (1990) 19 Cal.4th 1106, 1115, 1109-1110] the defendant-a nonprofit corporation that counseled tenants and mediated landlord-tenant disputes-counseled a tenant concerning a malfunctioning refrigerator, leading to a successful small claims action by the tenant against her landlord. [Citation.] The court held that the defendant's counseling of the tenant was 'in anticipation of litigation' and was therefore protected conduct under section 425.16. [Citation.]" (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 940 (Bel Air Internet).)
However, as observed by the Bel Air Internet court: "'[C]ourts have imposed a "good faith and serious consideration" requirement unique to pre-litigation activity.' ... [if] The requirement to show that litigation is seriously contemplated ensures that prelitigation communications are actually connected to litigation and that their protection therefore furthers the anti-SLAPP statute's purpose of early dismissal of meritless lawsuits that arise from protected petitioning activity. [Citations.] [if] Thus, for example, when a cause of action arises from conduct that is a 'necessary prerequisite' to litigation, but will lead to litigation only if negotiations fail or contractual commitments are not honored, future litigation is merely theoretical rather than anticipated and the conduct is therefore not protected prelitigation activity. [Citations.]" (Bel Air Internet, supra, 20 Cal.App.5th at pp. 940-941.)
"If a prelitigation statement concerns the subject of the dispute and is made in anticipation of litigation contemplated in good faith and under serious consideration, it falls within the scope of ... section 425.16. [Citation.] The 'good faith [and under] serious consideration' requirement is not a test for malice. [Citation.] Instead, it focuses on whether the litigation was genuinely contemplated. [Citation.] The requirement guarantees that hollow threats oflitigation are not protected. [Citation.]" (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 824.)
And finally, courts have discussed how to determine when anticipated litigation is imminent. In Neville v. Chudacojf (2008) 160 Cal.App.4th 1255, 1268, the court rejected plaintiffs argument that four-month-old prelitigation statements were too stale to be protected. The court determined that in the context of an anti-SLAPP motion it was incorrect to define the term "'imminent"' by the passage of time rather than by the party's intentions. The court referred to a case discussing the term "imminent" in the context of applying the litigation privilege under section 47. (Ibid) It noted the litigation privilege does not attach to threats of litigation made merely as a means of obtaining a settlement but will apply to prelitigation statements when "'imminent access to the courts is seriously proposed by a party in good faith for the purpose of resolving a dispute ...."' (Ibid) The court clarified the definition of "imminent" in the context of the litigation privilege and anti-SLAPP refers to an "actual threat of impending litigation" rather than the mere passage of time. It determined there was evidence establishing the employer's letter, sent four months before the lawsuit "established a threat of impending litigation" because the letter referred to the lawsuit, the attorney used the law firm's letterhead, and stated "'this office represents [employer] in the above-matter [sic]."' (Id. at p. 1269.)
In the case before us, the cross-complaint described Horwitz's purported simultaneous representation of CTI and MFS. Horwitz's involvement in rescinding MFS's claim to 28,000,000 shares of CTI stock theoretically could have led to future litigation. However, none of the conduct was a necessary prerequisite to a particular anticipated lawsuit. Horwitz does not suggest it intended to file a lawsuit against MFS on CTI's behalf, and we will not speculate as to what litigation CTI may have contemplated pursuing during its formation in 2015.
In summary, based our de novo review we conclude Horwitz did not satisfy its burden as the moving party under the first prong of the anti-SLAPP statute. Accordingly, we need not extend our analysis to the merits of the case in this opinion. Horwitz will have the opportunity to establish any defenses it has to MFS's crosscomplaint, but an anti-SLAPP was not the proper procedural device for presenting those defenses.
III. Evidentiary Rulings
In the briefing, Catanzarite devotes much ink to the frivolous argument the court abused its discretion by "failing its responsibility to rule on [MFS's] evidentiary objections." The record belies this contention. The court specifically stated it overruled the objections. The reporter's transcript shows Catanzarite did not seek clarification or question this ruling during the hearing (tentative ruling was posted beforehand). In any event, this issue has been rendered moot by our determination the anti-SLAPP ruling must be reversed on other grounds. Ruling on evidentiary objections are only necessary for the second prong of anti-SLAPP review, i.e., did plaintiffs present admissible evidence that demonstrates a probability of prevailing on the merits on their claims. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 630.)
DISPOSITION
The trial court erred in granting respondents' anti-SLAPP motion. We reverse the order and remand the matter for further proceedings. In the interests of justice, each party shall bear their own costs on appeal.
WE CONCUR: BEDSWORTH, J., SANCHEZ, J.