McElroy v. Pernell et al.

Filed 9/27/07 McElroy v. Pernell et al. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from orders of the Superior Court of Los Angeles County,

Dzintra Janavs and Edward A. Ferns, Judges. Affirmed in part and reversed in part.

Quinn Emanuel Urquhart, Oliver & Hedges, Duane R. Lyons; Law Office of Reginald K. Brown and Reginald K. Brown for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Robert M. Young, Jr., Robert Cooper and A. Louis Dorny; and Michael J. Melton for Defendants and Appellants.

_________________________

This matter involves three consolidated appeals.

In case No. B190293, defendants and appellants Cynthia Pernell (Pernell), Sharon Hamilton (Hamilton) and Beverly DAntignac (DAntignac) (collectively, the individual defendants) appeal an order invalidating their election to the board of directors of Ladera Little League, Inc. (LLL).

In case No. B191588, plaintiff and appellant Harry McElroy (McElroy) appeals an order granting a special motion to strike (Code Civ. Proc.,  425.16)^[1]filed by the individual defendants. Said order disposed of a cause of action by McElroy against the individual defendants for breach of fiduciary duty.

Finally, in case No. B193304, McElroy appeals an order awarding $37,160.11 in attorney fees and costs to the individual defendants after they prevailed on their special motion to strike.

For the reasons discussed below, we (1) affirm the order invalidating the election, (2) reverse the order granting the special motion to strike and (3) reverse the order awarding attorney fees and costs to the individual defendants.

FACTUAL AND PROCEDURAL BACKGROUND

1. Parties.

LLL is a California corporation which operates under a charter granted by Little League, Inc., a national organization. LLL was a party below but is not involved in these appeals.

McElroy was affiliated with LLL for a number of years. He served as a volunteer and scorekeeper for his sons team, as well as a coach and team manager.

The three individual defendants were members of LLLs board of directors at the time of LLLs October 20, 2005 election, and Pernell was LLLs president.

2. Pleadings.

On December 13, 2005, McElroy filed a complaint against LLL, the three individual defendants and others not parties to this appeal.

The pertinent portions of the complaint, with respect to this appeal, are the fourth and fifth causes of action.^[2]

The fourth cause of action alleged all the board members elected in the October 20, 2005 election were elected in violation of California law and sought an order invalidating said election and requiring LLL to conduct a new election consistent with California law. The complaint pled the election was fraudulent and illegal because Defendants (1) did not establish that a quorum was present; (2) did not allow members a reasonable opportunity to nominate candidates for board election; (3) improperly limited the Board candidates to individuals that had served on the Board for three consecutive years; (4) did not allow members to view the bylaws in advance of the election, in order to determine voting eligibility and eligibility for board membership; and (5) only notified select members of the opportunity to cast absentee ballots after the date and time for casting such ballots had expired.

The fifth cause of action, which was directed at the three individual defendants, was denominated a breach of fiduciary duty. McElroy pled the individual defendants breached their duty as directors by reporting inaccurate income and expenses, refusing to make LLLs bylaws available for inspection by members in violation of Corporations Code section 5160, failing to conduct regular meetings, enacting bylaws that conflict with California law, failing to comply with proper requests for inspection of annual reports, voting records and other documents, and conducting a fraudulent election. By way of relief, the fifth cause of action sought that the Court order [LLL] to enact a new constitution that is consistent with California law.

3. Trial court grants McElroys motion to invalidate the election, pursuant to the fourth cause of action.

On January 6, 2006, McElroy filed a motion to invalidate the October 2005 election, asserting LLL failed to provide sufficient notice of the election so as to render the election invalid. McElroy further argued the election was invalid because: there was no quorum at the meeting at which the purported election took place; the board wrongfully refused to accept his nomination as a candidate; and LLLs nomination and election procedures for directors were unreasonable and unfair and in violation of the Corporations Code.

The motion to invalidate the election was tried on declarations.

On February 3, 2006, the trial court (Judge Janavs) heard and granted the motion, ruling in relevant part: The October 2005 election is invalid. [LLLs] claimed compliance with the Bylaws was insufficient to provide a fair election under the Bylaws. Defendants failed to provide the candidacy list in a timely fashion, conducted absentee balloting prior to the actual election that denied other candidates the ability to be considered for a director position, and then imposed qualifications improper under the Bylaws upon nominees such that no individuals aside from those already serving on the Board were able to be on the ballot for consideration, and used unfair election procedures at the October 2005 election. Additionally, violations of the California Corporations Code exacerbated the unfairness.

On February 15, 2006, having previously decided the election was invalid, the trial court ordered a series of remedies. It removed LLLs board of directors from office, appointed a referee and vested the referee with all authority, rights and powers that would otherwise be vested in the board of directors. Said referee was directed to conduct a fair and reasonable election for a board of directors of LLL, consistent with the Corporations Code.

On April 3, 2006, the three individual defendants filed notice of appeal from the February 15, 2006 order.^[3][4]

4. Trial court grants special motion to strike the sole remaining cause of action, the fifth cause of action against the three individual defendants for breach of fiduciary duty.

On February 10, 2006, the three individual defendants filed a special motion to strike ( 425.16) the final cause of action of McElroys complaint. The moving papers asserted the fifth cause of action was subject to an anti-SLAPP motion because it arose from defendants protected activity, and that McElroy could not establish a likelihood of success on his claim.

a. The ruling on the special motion to strike.

On March 20, 2006, the trial court (Judge Ferns) granted the anti-SLAPP motion, ruling as follows:

In the fifth cause of action, plaintiff has alleged that moving defendants: (i) reported inaccurate income and expenses; (ii) refused to make [LLLs] bylaws available for inspection by members; (iii) failed to conduct regular meetings; (iv) failed to enact bylaws that did not conflict with California law; (v) failed to comply with requests for inspection of documents; and (vi) conducted a fraudulent election.

The individual defendants, then, are being sued as individuals for statements made, and conduct undertaken, within the scope of their duties as board members of [LLL]. LLL board meetings and elections constitute legally authorized official proceedings because they are authorized/regulated by statute. See, Corporations Code  5510-5517, 5610-5617. In addition, LLLs bylaws authorize/regulate such meetings and elections. Such legally authorized meetings/elections trigger the application of CCP  425.16(e)(1) and (4). The statements made and the conduct undertaken by the defendants were made in connection with an issue under consideration or review by LLLs board.

As defendants have met their threshold burden of showing the fifth cause of action arises out of statements and conduct covered by the SLAPP statute, the burden shifts to plaintiff to show a probability that he will prevail on that cause of action. Plaintiff has not met his burden. Plaintiff must meet that burden with objective evidence supporting his claim. [Citation.]

Most of the wrongful conduct alleged by plaintiff does not seem as if it belongs in a cause of action for breach of fiduciary duty as the conduct would not ostensibly seem to cause monetary damages, e.g., the failure to hold elections, to change the bylaws, produce documents. Plaintiff has sought, and received, the appointment of a referee, who will undertake many of the boards duties, including holding elections and revising LLLs bylaws, thus, this cause of action seems in large part superfluous. Moreover, a cause of action for breach of fiduciary duty is a tort, and monetary damages must be established. The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damages proximately caused by that breach. Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086. Also, under Corporations Code  5239, plaintiff must establish that the individual defendants conduct was reckless, wanton, intentional, or grossly negligent.

Plaintiff, in its opposition to this motion, seems to acknowledge that plaintiff must establish tortious conduct which has caused monetary damages to [LLL]. Plaintiff mentions the word embezzlement in the opposition, but that concept is not raised in the complaint. Plaintiff speculates that [LLL] has not sufficiently accounted for approximately $40,000 of funds for the 2003-2004 season alone. There is no explanation or evidence as to what, if anything, each of the defendants did in their individual capacity which would warrant them being sued individually. Plaintiffs belief that [LLL] did not properly account for funds is not admissible evidence of accounting improprieties, much less of an impropriety committed by an individual defendant acting in his or her individual capacity.

b. Denial of motion for reconsideration.

Ten days after the above ruling, McElroy filed a motion for reconsideration ( 1008, subd. (a)), asserting new case law as well as newly discovered facts to support his opposition to the special motion to strike.

On May 3, 2006, the trial court heard and denied the motion for reconsideration, ruling section 425.17 [specifying when provisions of section 425.16 are inapplicable] [does] not apply to the fifth cause of action because the purpose of the fifth cause of action was not to invalidate an election, rather, it was to seek relief of a personal kind against the individual defendants for statements made and conduct undertaken within the scope of their duties as board members of LLL. There is no argument or evidence presented in support of this motion which establishes otherwise.

On June 1, 2006, McElroy filed a timely notice of appeal from the March 20, 2006 order granting the special motion to strike.^[5]

5. The award of attorney fees and costs to the individual defendants.

On May 18, 2006, the three individual defendants filed a motion for attorney fees and costs as the prevailing parties on the special motion to strike. ( 425.16, subd. (c).) The individual defendants sought a lodestar figure of $57,632 to be enhanced by a multiplier of 1.5 or 2. In addition, they requested $7,160.11 in costs. The fees of $57,632 represent 180.1 claimed hours related to the anti-SLAPP motion at a rate of $320 per hour.

On June 23, 2006 the trial court heard the matter and granted the motion in part. It awarded attorney fees of $30,000 and costs of $7,160.11. The trial court explained: Defendants are the prevailing party, and have prevailed on a motion which had significant effect on this lawsuit. The core issue of this case was whether or not the board elections were fair and lawful, and those issues were to be resolved by Judge Janavs. Those issues were needlessly complicated because the plaintiff sought to have the [individual] defendants held personally liable for damages by alleging the fifth cause of action for Breach of Fiduciary Duty. Despite the lack of evidence to support allegations of individual wrongdoing, plaintiff fiercely litigated in order to assure the nature of the action was changed into one in which it could jeopardize defendants individual finances. Plaintiff, having chosen to drastically change the nature of the litigation, cannot now complain that nothing of import resulted from the Motion to Strike.

On August 18, 2006, McElroy filed notice of appeal from the June 23, 2006 order.^[6]

CONTENTIONS

In the first appeal (No. B190293), the individual defendants contend the order removing them from LLLs board of directors is appealable and that the trial court erred in lowering the statutory standard for removal of directors.

The second appeal (No. B191588) relates to the fifth cause of action for breach of fiduciary duty. McElroy contends the trial court erred in concluding the challenged conduct of the individual defendants was subject to a special motion to strike, and he asserts he established a probability of success on the merits of his claim.

In the third appeal (No. B193304), McElroy contends the individual defendants should not be considered prevailing parties, despite their success on the anti-SLAPP motion; even if the individual defendants are prevailing parties, the claimed lodestar amount is improper because the hours submitted are excessive and not justified; and even assuming the individual defendants are entitled to an award of attorney fees, a fee enhancement is not justified.

DISCUSSION

I. THE FIRST APPEAL

1. The order removing the individual defendants from LLLs board of directors is appealable.

McElroy does not take issue with the individual defendants position that the February 15, 2006 order removing them from LLLs board of directors is appealable.

As already noted in footnote 3, ante, the February 15, 2006 order, which appointed a referee, removed the board of directors from office and ordered the directors to cease to act, or hold themselves out as acting, for or on behalf of [LLL] . . .  is appealable as an order granting an injunction. ( 904.1, subd. (a)(6).)

We now turn to the merits of this appeal.

2. No merit to the individual defendants contention that in removing them from office, the trial court erred in lowering the statutory standard for removal of directors.

The individual defendants contend the trial court erred in removing them from office because Corporations Code section 5223 requires a finding of fraudulent or malicious conduct before a court can order the removal of a board member.^[7] The argument lacks merit because the trial court did not remove the directors pursuant to Corporations Code section 5223.

The statute focused on by the individual defendants, Corporations Code section 5223, subdivision (a), provides a mechanism for directors or members to bring an action to remove from office any director in the case of fraudulent or dishonest acts or gross abuse of authority or discretion. However, as the trial court noted in its ruling, McElroy did not bring this action pursuant to Corporations Code section 5223.

Rather, as the trial court specifically recognized in its ruling, McElroy was attacking the validity of the election pursuant to Corporations Code section 5617.^[8] Once the trial court determined the October 20, 2005 election for the board of directors had to be invalidated for various procedural infirmities and that a new election would have to be held, the removal of the sitting board members was simply an ancillary remedy authorized by Corporations Code section 5617, subdivision (d).

The individual defendants entire contention herein is based on the incorrect premise that they were removed from office pursuant to Corporations Code section 5223. We conclude the individual defendants have not shown any error in the order which invalidated the October 2005 election and removed them from office. Therefore, said order is affirmed.^[9]

II. THE SECOND APPEAL

1. Trial court erred in granting the individual defendants special motion to strike the fifth cause of action against them for breach of fiduciary duty because the cause of action was not subject to a special motion to strike.

a. General principles related to a special motion to strike.

A SLAPP suit a strategic lawsuit against public participation seeks to chill or punish a partys exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted . . . section 425.16 known as the anti-SLAPP statute to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.] (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The purpose of the statute is to encourage continued participation in matters of public significance by preventing abuse of the judicial process. ( 425.16, subd. (a).) The statute is to be construed broadly. (Ibid.)

Section 425.16, subdivision (e), describes four categories of protected activity. As used in this section, act in furtherance of a persons 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; (4) or 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. ( 425.16, subd. (e).)

Analysis of a section 425.16 motion requires a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) In the first step, the trial court determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) If the trial court finds the defendant has made the required showing, it determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Ibid.)

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 defendants evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. [Citation.] (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether the defendants act underlying the plaintiffs cause of action itself was an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The principal thrust or gravamen of the claim determines whether section 425.16 applies. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)

With these principles in mind, we turn to the issue presented herein.

b. Trial courts determination the individual defendants conducted LLLs affairs in an unlawful manner precludes the individual defendants from making a prima facie showing that the cause of action against them for breach of fiduciary duty arose from their protected activity.

Here, in granting the individual defendants special motion to strike the fifth cause of action for breach of fiduciary duty, the trial court failed to give due consideration to the impact of Judge Janavss earlier ruling on the motion to invalidate the election.

It is the principal thrust or gravamen of the plaintiffs cause of action which determines whether section 425.16 applies. (Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 188.) The gravamen of the fifth cause of action against the individual defendants for breach of fiduciary duty was that they had breached as directors with respect to the conduct of LLLs affairs. With respect to the fifth cause of action, the prayer for relief requested only that the Court order [LLL] to enact a new constitution that is consistent with California law.

In granting McElroys motion to invalidate the October 2005 election, Judge Janavs had ruled: The October 2005 election is invalid. [LLLs] claimed compliance with the Bylaws was insufficient to provide a fair election under the Bylaws. Defendants failed to provide the candidacy list in a timely fashion, conducted absentee balloting prior to the actual election that denied other candidates the ability to be considered for a director position, and then imposed qualifications improper under the Bylaws upon nominees such that no individuals aide from those already serving on the Board were able to be on the ballot for consideration, and used unfair election procedures at the October 2005 election. Additionally, violations of the California Corporations Code exacerbated the unfairness.

Judge Janavs further found, inter alia, that McElroy was denied a reasonable opportunity to place his name in nomination for a director position. She specifically rejected Hamiltons claim that McElroy did not meet the qualifications necessary to be a nominee, noting the qualifications cited by Hamilton applied to executive officers, not to directors.

On appeal, the individual defendants have not attacked these findings by Judge Janavs, which findings are presumptively correct. (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 683.)

If the defendant concedes or the evidence conclusively establishes the conduct complained of was illegal, as a matter of law the defendant cannot make a prima facie showing the action arises from protected activity within the meaning of section 425.16. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367 [102 Cal.Rptr.2d 864], disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. [(2002)] 29 Cal.4th [53,] 68, fn. 5; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 459 [125 Cal.Rptr.2d 534].) (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1246; accord City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 621.)

Here, in granting the motion to invalidate the election, Judge Janavs in essence determined the individual defendants, as members of LLLs board of directors, had conducted LLLs affairs in an unlawful manner. As a consequence of Judge Janavs adverse ruling, the individual defendants could not thereafter make a prima facie showing on the special motion to strike that the cause of action against them for breach of fiduciary duty arose from their protected activity within the meaning of section 425.16. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1246.) Therefore, Judge Ferns should have denied the anti-SLAPP motion.^[10]

Accordingly, the order granting the special motion to strike must be reversed with directions to deny the motion.

III. THE THIRD APPEAL

1. The order awarding attorney fees and costs to the individual defendants pursuant to section 425.16 must be reversed.

In view of our reversal of the order granting the individual defendants anti-SLAPP motion, the individual defendants are not the prevailing party on the special motion to strike. Therefore, the June 23, 2006 order awarding $37,160.11 in attorney fees and costs to the individual defendants pursuant to section 425.16, subdivision (c) must be reversed.

Further, the reversal of the order granting the anti-SLAPP motion raises the issue of McElroys entitlement to attorney fees and costs.

Section 425.16, subdivision (c) states in relevant part: [A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorneys fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (Italics added.) Thus, unlike a prevailing defendant, a plaintiff who prevails by defeating a special motion to strike is not entitled to recover fees and costs under section 425.16 simply for having prevailed on the motion.

The reference to section 128.5 in section 425.16, subdivision (c) means a court must use the procedures and apply the substantive standards of section 128.5 in deciding whether to award attorney fees under the anti-SLAPP statute. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392; accord Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.)^[11] A determination of frivolousness requires a finding the anti-SLAPP motion is totally and completely without merit ( 128.5, subd. (b)(2)), that is, any reasonable attorney would agree such motion is totally devoid of merit. [Citation.] (Decker, supra, at p. 1392, italics added.) (Moore v. Shaw, supra, at p. 199.)

In view of the trial courts ruling, albeit erroneous, granting the anti-SLAPP motion, we cannot say the anti-SLAPP motion was frivolous. Claims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 818.) Therefore, McElroys request for attorney fees and costs he incurred in connection with the anti-SLAPP motion is denied.

DISPOSITION

The order invalidating the October 2005 election is affirmed. The order granting the special motion to strike is reversed with directions to deny the special motion to strike. The order awarding attorney fees and costs to the individual defendants pursuant to section 425.16 also is reversed.

McElroys request for attorney fees and costs related to the anti-SLAPP motion is denied. McElroy shall recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

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^[1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

^[2] The first three causes of action violation of Corporations Code section 6330 requiring disclosure of membership lists and voting rights, violation of Corporations Code section 6333 requiring disclosure of accounting books and records and minutes of corporate meetings, and violation of Corporations Code section 6321 requiring disclosure of annual report were adjudicated by the trial court and are not in issue here.

^[3] The February 15, 2006 order, which appointed a referee, removed the board of directors from office and ordered the directors to cease to act, or hold themselves out as acting, for or on behalf of [LLL] . . .  is appealable as an order granting an injunction. ( 904.1, subd. (a)(6).)

^[4] LLL also joined in the April 3, 2006 notice of appeal but subsequently dismissed its appeal.

The April 3, 2006 notice of appeal also listed five other individual defendants as appellants: Early Lincoln, Karen McCaw, Tommy Orso, Daric Pernell and Tewanna Wade. However, these five defendants previously had been dismissed from the action and the appellants opening brief in No. B190293 states these five defendants are not parties to this appeal.

^[5] An order granting a special motion to strike is appealable. ( 425.16, subd. (i).) Here, the trial court granted the special motion to strike on March 20, 2006, and the clerk served notice of entry of the order that same day. Nonetheless, the notice of appeal filed June 1, 2006 is timely, even though it was filed more than 60 days after the March 20, 2006 order. California Rules of Court, rule 8.108(d) states in pertinent part: If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: [] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order[.] Here, on May 3, 2006, the clerk served notice of entry of the order denying reconsideration. Therefore, the notice of appeal filed 28 days later, on June 1, 2006, is a timely appeal from the March 20, 2006 order granting the special motion to strike.

^[6] There is some question as to whether the order awarding attorney fees pursuant to section 425.16, subdivision (c), is appealable. (Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150 [if motion for fees under  425.16 is filed after trial court rules on special motion to strike, the order granting or denying those fees is not an order granting or denying a special motion to strike and therefore is not immediately appealable under  425.16, subd (i)]; compare Johnston v. Corrigan (2005) 127 Cal.App.4th 553, 556.) In any event, we have discretion to deem the appeal from the order awarding fees and costs as a petition for writ of mandate in order to resolve the issues on the merits. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  88, pp. 147-149.) In doing so, we note that in addition to being fully briefed, this third appeal is consolidated with the related appeals which are before us for decision.

^[7] Corporations Code section 5223 states in relevant part: (a) The superior court . . . may . . . remove from office any director in case of fraudulent or dishonest acts or gross abuse of authority . . . .

^[8] Corporations Code section 5617 states in pertinent part: (a) Upon the filing of an action therefor by any director or member, or by any person who had the right to vote in the election at issue, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation. [] . . . [] (d) The court, consistent with the provisions of this part and in conformity with the articles and bylaws to the extent feasible, may determine the person entitled to the office of director or may order a new election to be held or appointment to be made, may determine the validity of the issuance of memberships and the right of persons to vote and may direct such other relief as may be just and proper. (Italics added.)

^[9] In view of the above, it is unnecessary to address McElroys contention that the new elections which were held on June 17, 2006 mooted the appeal of the individual defendants from the order invalidating the October 2005 election.

^[10] Because the activity of which McElroy complains was not protected activity within the meaning of section 425.16, we need not address the second step of section 425.16s two-step analysis. (Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1365.)

^[11] Irrespective of the statement in section 128.5 that it applies only to actions or tactics arising from a complaint filed, or a proceeding initiated, on or before December 31, 1994 ( 128.5, subd. (b)(1)), the procedures and standards of section 128.5 remain operative to guide the implementation of the attorney fee provision of section 425.16, subdivision (c). (Decker, supra, 105 Cal.App.4th at p. 1392.) (Moore v. Shaw, supra, 116 Cal.App.4th at p. 199, fn. 9.)