Filed 6/24/26 Thottam v. Edgar CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PHOENIX THOTTAM, B351320
(Los Angeles County
Cross-complainant and Super. Ct. No. 25AVCV00804)
Appellant,
v.
CARLY EDGAR et al.,
Cross-defendants and
Respondents.
APPEAL from order of the Superior Court of the County of
Los Angeles, Daniel L. Alexander, Judge. Affirmed.
Phoenix Thottam, in pro. per., for Cross-Complainant and
Appellant.
Manning Law, Craig Coté and Tristan P. Jankowski, for
Cross-Defendants and Respondents.
Phoenix Thottam appeals from the trial court’s order
granting cross-defendant Carly Edgar’s motion to strike his cross-
complaint pursuant to the anti-SLAPP statute, Code of Civil
Procedure section 425.16.1 We affirm and remand the case to the
trial court to consider Edgar’s request for appellate attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
A. Edgar’s Complaint
In June 2025, Edgar filed a verified complaint with the
following relevant allegations. Edgar was a member of a
protected class under the Americans with Disabilities Act of 1990
(ADA; 42 U.S.C. §§ 12101 et seq.; 12102(2)) and relied on a
wheelchair for mobility. She was a “high-frequency litigant” who
had filed more than 10 complaints alleging a construction-related
accessibility claim in the preceding 12 months.2
Thottam owned a property in Pearblossom on which
defendant F. Javier Jimenez operated a Shell-branded business.
In October 2024, Edgar made a purchase at the business. She
encountered architectural barriers that violated the Standards
for Accessible Design prescribed by the ADA (ADA Standards),
1 Undesignated statutory references in this opinion are to the
Code of Civil Procedure.
2 Private individuals may bring actions to enforce construction-
related accessibility requirements. (Civ. Code, § 55.) A “‘high-
frequency litigant’” includes a “plaintiff who has filed 10 or more
complaints alleging a construction-related accessibility violation within
the 12-month period immediately preceding the filing of the current
complaint alleging a construction-related accessibility violation.”
(§ 425.55, subd. (b)(1).) Special requirements, not implicated in this
appeal, apply to complaints filed by such litigants. (See § 425.50; Gov.
Code § 70616.5.)
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including an unsecured floor mat, aisles that did not provide
adequate clear width, a transaction counter that exceeded the
maximum allowed height, and inadequate clear floor space in
front of the counter. She asserted a single claim for violation of
the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) and prayed
for injunctive and declaratory relief, statutory damages, and
attorney fees.
B. Thottam’s Cross-Complaint
Thottam answered the complaint and filed a verified cross-
complaint against Edgar and her attorneys, Manning Law, APC
and Craig Coté (collectively, cross-defendants). He alleged his
“cross-complaint ar[ose] from Cross-Defendants’ bad faith,
abusive, and vexatious initiation and prosecution of a knowingly
meritless disability access lawsuit, filed as a means of extracting
settlement payments from innocent property owners.” Further,
the complaint “[was] part of a systemic pattern of filings by a self-
admitted high-frequency litigant (HFL) and her counsel aimed at
leveraging against Defendants the cost of defense rather than
actually or materially vindicating actual civil rights.”
(Underlining omitted.) Thottam asserted claims for malicious
prosecution, abuse of process, civil conspiracy, intentional
infliction of emotional distress (IIED), declaratory relief, and a
request for sanctions. He prayed for compensatory and punitive
damages of no less than $500,000, declaratory relief, sanctions,
and attorney fees.
C. Edgar’s Anti-SLAPP Motion
Edgar filed a special motion to strike the cross-complaint.
She argued the cross-claims arose from protected conduct — the
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filing of the complaint. She argued Thottam could not
demonstrate a probability of prevailing because the cross-claims
were barred by the litigation privilege (Civ. Code § 47, subd. (b)).
She also argued he could not establish the underlying case was
terminated in his favor, an essential element of his cross-claim
for malicious prosecution.
In a declaration, Edgar described her disabilities, her
reliance on a wheelchair, and her visit to the gas station and
store located on Thottam’s property. According to Edgar,
obstacles inside prevented her from using the ATM and buying
food and drink. A floor mat caught the wheels of her wheelchair,
boxes blocked her path through narrow aisles, and a display of
chip bags “stuck out” and hit her face. The transaction counter
was too high for her to use, and employees did not assist her.
Corey Taylor, a California Certified Access Specialist
(CASp),3 also provided a declaration describing an inspection of
the store he conducted in June 2025. Taylor described access
barriers that violated the ADA Standards, including the
unsecured floor mat; walking surfaces that, in three locations, did
not provide clear width of the required minimum of 36 inches; a
transaction counter that was 1.5 inches taller than the allowed
maximum height; and clear space at the counter smaller than the
standard required.
Edgar’s counsel provided a declaration to support the
request for attorney fees of $13,000.
3 A CASp has been certified pursuant to Government Code
section 4459.5 to provide services that include investigating facilities
for compliance with state and federal accessibility laws, standards,
codes, and regulations. (Civ. Code, § 55.52, subd. (a)(3); Cal. Code
Regs., tit. 21, § 113.)
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In opposition, Thottam filed no evidence and asserted no
objection to Edgar’s evidence. He filed only a six-page brief. He
argued the cross-complaint did not arise from protected conduct
because it did not target Edgar’s lawsuit but instead was directed
toward a pattern of predatory ADA litigation and falsified factual
contentions filed with the intent to extort owners and induce
settlements.
Thottam addressed the litigation privilege in four
sentences. He did not dispute that the IIED, declaratory relief,
and sanctions claims were barred by the privilege but argued,
without analysis, that it did not apply to the other cross-claims
and did not protect attorneys from liability for misconduct arising
from exploitative litigation tactics. He argued that Edgar’s
status as a high-frequency litigant and her “exaggerated and
immaterial claims” exposed cross-defendants to liability for
“weaponizing the litigation process for economic gain.” Thottam
did not oppose the attorney fee request.
Following a hearing, the trial court granted the motion and
awarded attorney fees of $13,000 to Edgar. Thottam appealed
from the order granting the motion.
DISCUSSION
A. Governing Law - the Anti-SLAPP Statute
“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.” (§ 425.16, subd. (b)(1).) An
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“‘act in furtherance of a person’s right of petition or free
speech . . . in connection with a public issue’” includes written
statements “in connection with an issue under consideration or
review” by a “judicial body” and other conduct “in furtherance of
the exercise of the constitutional right of petition . . . .” (§ 425.16,
subd. (e)(1), (2), (4).)
“Anti-SLAPP motions are evaluated through a two-step
process. Initially, 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.”
(Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1061.) “If the defendant carries its burden, the
plaintiff must then demonstrate its claims have at least ‘minimal
merit.’” (Ibid.)
We review an order granting an anti-SLAPP motion de
novo and in so doing, conduct the same two-step analysis.
(Newport Harbor Offices & Marina, LLC v. Morris Cerullo World
Evangelism (2018) 23 Cal.App.5th 28, 42.) We analyze the issues
independent of the trial court’s reasoning, and if the decision is
correct on any theory, we affirm the order regardless of the
correctness of the grounds on which the court reached its
conclusion. (White v. Davis (2023) 87 Cal.App.5th 270, 287.)
B. Analysis4
Thottam asserts error in both steps of the anti-SLAPP
analysis.
4 We deny Thottam’s request for judicial notice of an order and
amended cross-complaint, both filed in the trial court after the anti-
SLAPP ruling. (In re Kenneth D. (2024) 16 Cal.5th 1087, 1106
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1. Step One - The Cross-Claims Arose From Protected
Conduct
The trial court found that all causes of action in the cross-
complaint were based on protected conduct. We agree.
“Filing a lawsuit is an act in furtherance of the
constitutional right of petition, regardless of whether it has
merit.” (JSJ Limited Partnership v. Mehrban (2012) 205
Cal.App.4th 1512, 1521.) Here, each of Thottam’s cross-claims
arose from Edgar’s filing a lawsuit. Thottam’s malicious
prosecution claim alleged that the “underlying complaint was
filed without probable cause and with malice.” The abuse of
process claim alleged cross-defendants “willfully misused the
legal process by filing this action not for adjudication on the
merits, but to pressure settlement from a baseless claim.” The
civil conspiracy claim alleged cross-defendants “acted in concert
to engage in unlawful and fraudulent litigation conduct,” and
“jointly agreed to use the litigation process to harm and harass”
Thottam. The declaratory relief claim alleged an actual
controversy regarding cross-defendants’ “liability for bad faith
litigation” and sought a declaration that the “underlying lawsuit
was initiated and pursued in bad faith and without probable
cause.” The IIED and sanctions claims incorporated the
preceding allegations.
Thottam contends the trial court summarily found he based
all his claims on the filing of Edgar’s complaint, when it should
have engaged in a claim-by-claim analysis. He does not,
however, identify any allegations of unprotected conduct that
would support a claim against cross-defendants. Instead, citing
[reviewing courts generally do not take judicial notice of evidence not
presented to the trial court].)
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Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), he argues that,
to the extent he alleged that Edgar’s action “was pursued through
unlawful or extortionate misuse of process, such conduct is not
protected if illegality is established as a matter of law.” Thottam
fails, however, to support this argument with analysis or citation
to the record. Accordingly, we deem it forfeited. (United Grand
Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)
Even if not forfeited, the narrow exception described in
Flatley does not compel reversal. The Flatley plaintiff sued an
attorney for engaging in extortionate communications, and the
attorney moved to strike the complaint under the anti-SLAPP
statute. Our Supreme Court held the motion was properly
denied because the anti-SLAPP statute is not available to strike
a complaint when the moving defendant concedes, or the evidence
conclusively establishes, that the allegedly protected speech was
illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320.)
This exception is generally limited to criminal, not merely illegal,
conduct. (See Fremont Reorganizing Corp. v. Faigin (2011) 198
Cal.App.4th 1153, 1169.) Here, Thottam fails to show that cross-
defendants engaged in protected speech that was illegal, let alone
criminal, as a matter of law. Cross-defendants do not concede
their actions were illegal, and in opposition to the anti-SLAPP
motion, Thottam submitted no evidence to establish illegality
conclusively. He did not show that the “narrow circumstance”
described in Flatley exist in this case.
2. Step Two - Minimal Merit of The Cross-Claims
Thottam contends that in conducting the second step of its
anti-SLAPP analysis, the trial court improperly found the entire
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cross-complaint barred by the litigation privilege.5 As we will
explain, the court correctly found that the privilege barred all
cross-claims except for malicious prosecution. To the extent it
found the privilege barred the malicious prosecution claim, any
error was harmless.
The litigation privilege is relevant to the second step in the
anti-SLAPP analysis in that “it may present a substantive
defense a plaintiff must overcome to demonstrate a probability of
prevailing.” (Flatley, supra, 39 Cal.4th at p. 323.) The privilege
applies to any communication (1) made in judicial or quasi-
judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that [has] some connection or logical relation to the action.
(See People v. Potter Handy, LLP (2023) 97 Cal.App.5th 938, 947
(Potter).) It is not limited to statements made during a trial or
other proceedings, but may extend to steps taken prior thereto, or
afterwards. (Ibid.) The privilege is absolute, applying to all
publications, irrespective of their maliciousness (ibid.), and it
applies to all torts except malicious prosecution. (Id. at p. 950.)
The litigation privilege has been held to bar a claim similar
to Thottam’s cross-claims. In Potter, district attorneys sued a law
firm for unlawful business practices under the unfair competition
law (UCL) (Bus. & Prof. Code, § 17200, et seq.). The appellate
court, affirming an order sustaining a demurrer without leave to
amend, reasoned: “[T]he conduct alleged to violate the UCL is
5 Thottam did not argue to the trial court that the cross-claims for
IIED, declaratory relief, and sanctions fell outside of the litigation
privilege, and accordingly, has forfeited any such argument on appeal.
(Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59,
68.)
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the filing of ADA/Unruh Civil Rights Act lawsuits in federal court
based on false standing allegations, and the use of those lawsuits
to coerce settlements. Both types of conduct constitute
communications falling within the broad reach of the privilege
and its absolute protection of access to the courts.” (Potter, supra,
97 Cal.App.5th at p. 948.) Here, as we have explained, each
cross-claim arose from Edgar’s filing her complaint and her
alleged use of the litigation process to extract settlement
payments. This was communicative conduct that fell within the
litigation privilege, and Thottam failed to show that any
exception applied. Hence, the privilege barred all the cross-
claims except for malicious prosecution.
It is unclear from the trial court’s order whether the
malicious prosecution cross-claim was among those the court
found to be barred by the privilege. To the extent it was, any
such error was harmless. Cross-defendants persuasively argue,
as they did below, that an essential element of malicious
prosecution was absent: resolution of the underlying action in
Thottam’s favor. (Citizens of Humanity, LLC v. Ramirez (2021)
63 Cal.App.5th 117, 128.) This element requires termination of
the entire action on the merits. (Ibid.) Thottam’s malicious
prosecution claim arose from his allegation that the “underlying
complaint was filed without probable cause and with malice.”
However, the underlying case had not been terminated in his
favor, preventing him from establishing the malicious
prosecution claim had minimal merit.6
6 Because we conclude Thottam failed to carry his burden of
showing his cross-claims had minimal merit for the reasons we have
discussed, we need not address his other contentions, including his
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3. Attorney Fees
Under subdivision (c) of section 425.16, “a prevailing
defendant on a special motion to strike shall be entitled to
recover that defendant’s attorney’s fees and costs.” An award is
made to “adequately compensate the defendant for the expense of
responding to a baseless lawsuit.” (Dove Audio, Inc. v. Rosenfeld,
Meyer & Susman (1996) 47 Cal.App.4th 777, 785 (Dove).) We
review an attorney fee award for abuse of discretion. (Ibid.)
The trial court granted Edgar’s request for attorney fees of
$13,000 based on her counsel’s declaration that he spent 18 hours
to draft the motion papers and his estimate of eight hours to
draft a reply and prepare for argument. Thottam contends the
award lacked evidentiary support because counsel did not furnish
“task-by-task time entries” or evidence of time actually spent
through the hearing.
These arguments are forfeited. Thottam did not oppose the
fee request in the trial court. (See Blackburn v. Charnley (2004)
117 Cal.App.4th 758, 769 [arguments not raised in opposition to
fee motion were forfeited].)
Thottam’s arguments are unpersuasive in any event.
Detailed time records were unnecessary. (See Mardirossian &
Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.) The
trial court could rely on an estimate of the hours counsel expected
to spend before the hearing. Before ruling on the fee request, the
court could assess whether the reply and argument at hearing
fairly represented eight hours of work. (See G.R. v. Intelligator
(2010) 185 Cal.App.4th 606, 620–621 [rejecting losing anti-
SLAPP plaintiff’s argument that fee award should include only
argument that the trial court erred in basing its step two decision on
whether Edgar was likely to prevail on her complaint.
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exact amounts, not estimates].) Thottam also fails to explain why
the time spent was excessive, giving us no reason to conclude the
award was an abuse of the trial court’s discretion. (Id. at p. 621
[fee determination will not be disturbed unless the appellate
court is convinced it is clearly wrong].)
Edgar requests attorney fees on appeal. (Dove, supra, 47
Cal.App.4th at p. 785 [appellate attorney fees are recoverable by
successful anti-SLAPP movant].) We remand the case to the trial
court to consider Edgar’s request for attorney fees incurred in
this appeal under section 425.16, subdivision (c).
DISPOSITION
The trial court’s order is affirmed. The case is remanded to
the trial court for consideration of Edgar’s request for attorney
fees incurred in this appeal. Edgar is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, Acting P. J.
We concur:
TAMZARIAN, J.
**COGLIATI, J.
** Judge of the Santa Cruz County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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