Filed 6/29/26 8e6 Corp. v. Max CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

8E6 CORP., et al., B343515

Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 19STCV30623)
v.

DAVID MAX et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles
County, Jon R. Takasugi, Judge. Affirmed.
Rogari Law Firm and Ralph Rogari for Defendant and
Appellant David Max.
Mary Lee for Defendant and Appellant Ralph Rogari.
Newmeyer & Dillion, Benjamin P. Pugh and Jason Moberly
Caruso for Plaintiffs and Respondents 8e6 Corp., George Shih,
Frank Wood and Mahendra Vora.
No appearance for Plaintiff and Respondent Rodney Miller.
 David Max, a former shareholder in respondent 8e6 Corp.
(8e6), and Ralph Rogari, Max’s counsel, appeal an order denying
their request seeking attorney fees from 8e6 and several 8e6
agents (the fiduciaries).1 The request sought fees associated with
Max’s and Rogari’s respective anti-SLAPP motions to strike 8e6
and the fiduciaries’ malicious prosecution action. (See Code Civ.
Proc., § 425.16.)2 The anti-SLAPP motions became moot when 8e6
and the fiduciaries dismissed their malicious prosecution action.
Max and Rogari may nevertheless be entitled to attorney fees under
section 425.16, subdivision (c)(1) if the court determines it would
have granted the anti-SLAPP motions on the merits. (See Pfeiffer
Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218
(Pfeiffer); Liu v. Moore (1999) 69 Cal.App.4th 745, 751.)
The trial court conducted such an analysis and correctly
concluded the fiduciaries’ malicious prosecution action was not a
SLAPP. On this basis, it denied Max and Rogari’s joint motion for
fees. We affirm.

1 The fiduciaries are respondents George Shih, Frank Wood,
Mahendra Vora, and Rodney Miller.
2 Unless otherwise indicated, all subsequent statutory
references are to the Code of Civil Procedure. “SLAPP” is an
acronym for “strategic lawsuit against public participation.”
Section 425.16 is commonly referred to as the “anti-SLAPP statute.”

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SELECTED FACTUAL AND PROCEDURAL BACKGROUND3
A. Max’s Lawsuit Against 8e6 and the Fiduciaries
1. Complaint
In December 2016, Max, through his counsel Rogari, filed
a lawsuit against 8e6 and the fiduciaries (Max I). Max alleged a
cause of action against 8e6 for breach of the corporation’s obligation
to permit shareholders to inspect its books and records. Against
the fiduciaries, Max alleged causes of action for breach of fiduciary
duty and conversion. Max supported the causes of action against
the fiduciaries with factual allegations about a 2016 liquidation of
certain 8e6 corporate assets and the manner in which the fiduciaries
communicated about and distributed the proceeds of that liquidation.
The claims appeared, at least in part, to be shareholder derivative
claims on behalf of 8e6.4

2. 8e6’s Motions and Changing Status in Max I
In February 2017, 8e6 moved for a change of venue. It also
filed a motion asking the court to require Max to file a bond before
pursuing his shareholder derivative claims, because “there [was]
no reasonable possibility that the . . . action . . . [would] benefit the
corporation or its shareholders.” (Corp. Code, § 800, subd. (c)(1).)

3 The litigation below has a tortuous and extensive history.
In this section, we provide only the background most relevant to
the instant appeal. We provide additional detail as needed in the
Discussion section below.
4 The caption and body of the complaint identify 8e6 as a
real party in interest as well as a defendant. The complaint also
alleges the fiduciaries breached duties owed to the corporation
and converted assets belonging to the corporation. Finally, the
complaint seeks, inter alia, relief on behalf of 8e6: return to the
corporation of the allegedly converted funds.

3
 Approximately a week before the scheduled hearing on the bond
and venue motions, Max requested Max I be dismissed “as to 8e6
Corporation only.” He used a judicial counsel form stating it “may not
be used for dismissal of a derivative action.” The clerk entered the
dismissal.5 The court then took 8e6’s venue and bond motions off
calendar as moot.

3. The Fiduciaries’ Demurrer to the Complaint
The fiduciaries demurred to the complaint on the basis that Max
could no longer assert derivative claims on behalf of now nonparty
8e6. After the deadline for filing an amended complaint had passed,
and without leave of court to do so, Max filed what purported to be an
amended complaint. The filing named 8e6 as a “party” and realleged
the previously dismissed inspection of records cause of action, this
time against “all defendants.” Counsel for 8e6 and the fiduciaries
repeatedly asked Rogari whether Max was attempting to reinsert 8e6
as a defendant and/or assert derivative claims. Rogari’s responses to
these inquiries did not clarify the issue.
The court struck Max’s attempted amendment, finding
“[t]he original complaint [was] operative” and that it included only
derivative claims against the fiduciaries. Because Max had dismissed
8e6, the real party in interest to those derivative claims and thus an
indispensable party, the complaint “fail[ed] to state facts sufficient to
constitute a cause of action.” On this basis, the court sustained the
demurrer with leave to amend.

5 Max ultimately obtained, via discovery in Max I, access to
the corporate records that were the subject of the sole cause of
action against 8e6 in Max I.

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 4. The Fiduciaries’ Demurrer to First Amended
Complaint
On March 29, 2018, Max filed a timely first amended complaint
(the FAC), alleging, solely in his individual capacity, two causes of
action against the fiduciaries: “conspiracy to defraud” and breach
of fiduciary duty. The FAC did not name 8e6 as either a real
party in interest or a defendant. Max alleged that the fiduciaries,
as officers, directors, and/or preferred shareholders of 8e6, owed
fiduciary duties to Max, and that the fiduciaries breached these
duties in 2016 by “dissolv[ing]” corporate assets in a manner that
“would solely benefit the preferred shareholders” and by “engag[ing]
in self-dealing.” (Max v. Shih (Nov. 30, 2020, B301010) [nonpub.
opn.].) The fiduciaries filed, and the court overruled, a demurrer
to the FAC’s fiduciary duty claim.
The court, however, sustained the demurrer as to the
conspiracy to defraud claim. The court ruled “[c]ivil conspiracy is
not a cause of action,” and that Max had failed to “allege[ ] sufficient
facts to constitute a cause of action for fraud[;] [s]pecifically, [he]
did not allege facts suggesting he justifiably relied on the alleged
misrepresentations and suffered resulting damages.” The court
granted Max leave to amend within 15 days.
Max filed a notice of election not to amend the conspiracy to
defraud claim. After the allotted time for amendment had expired,
the fiduciaries filed answers to the FAC.

5. Max’s Failed Attempt To File Second
Amended Complaint
On January 15, 2019, Max requested leave to file a second
amended complaint. The proposed complaint included a new
“conspiracy to defraud” claim based on alleged misrepresentations
different from those alleged in the FAC. The court denied leave for
various reasons, including that Max had chosen not to amend within

5
the time the court allotted following its demurrer ruling. The court
rejected Max’s argument that he had only learned of the basis for the
amended claim during discovery in August 2018, both because the
court did not view this new information as crucial to the proposed
amended fraud claim, and because Max unduly delayed in filing
proposed amendments even after he obtained that discovery.

6. Fiduciaries’ Motion for Summary Judgment
on the FAC
On April 29, 2019, the court granted the fiduciaries’ motion for
summary judgment on the sole remaining claim in the FAC: breach
of fiduciary duty. The court found the duties Max’s claim relied on
were duties the fiduciaries owed all shareholders, not Max specifically.
Accordingly, any claim for breach of that duty was derivative, and
Max lacked standing to pursue it in his individual capacity.

B. 8e6 and the Fiduciaries’ Malicious Prosecution
Action Against Max and Rogari
On August 29, 2019, 8e6 and the fiduciaries filed the instant
lawsuit against Max and his attorney Rogari, alleging Max I was a
malicious prosecution.
On September 23, 2019, Max timely appealed the judgment
in Max I. The next day, 8e6’s counsel wrote to Rogari that,
“[b]ased on [Drummond v. Desmarais (2009) 176 Cal.App.4th
439, 457 (Drummond)], the malicious prosecution case should be
stayed pending the resolution of the [Max I] appeal.” 8e6’s counsel
suggested the parties stipulate to such a stay. Rogari refused.
On October 3, 2019, 8e6 filed a motion to stay the malicious
prosecution action pursuant to Drummond.

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 C. Max and Rogari’s Anti-SLAPP Motions To Strike
the Malicious Prosecution Complaint
On October 18, 2019, Max and Rogari filed anti-SLAPP
motions to strike the malicious prosecution complaint in its entirety.
8e6 asked the court to continue the anti-SLAPP motion hearing
pending a decision on the Drummond motion to stay the malicious
prosecution action. The trial court denied the request to continue and
motion to stay.
Soon thereafter, 8e6 and the fiduciaries voluntarily dismissed
the entire malicious prosecution action without prejudice. They
contend they did this in light of the court’s refusal to stay the
malicious prosecution action pending the outcome of the Max I
appeal. Because the malicious prosecution action was no longer
pending, the court denied as moot Max and Rogari’s motions to
strike it as a SLAPP.

D. Initial Request for Anti-SLAPP Attorney Fees
and Resolution of Max I Appeal
Max and Rogari filed a joint motion for attorney fees under
the anti-SLAPP statute’s mandatory fee provision. (See § 425.16,
subd. (c).) The court stayed the matter pending resolution of the
Max I appeal.
On November 30, 2020, we affirmed the judgment in Max I
on the basis that the evidence did not support a triable question of
whether the fiduciaries had breached any duty they owed Max in
his individual capacity.6

6 Although we affirmed the judgment, we disagreed with the
trial court’s assessment that the fiduciaries owed no duty to Max
in his individual capacity, at least on one of the two alternative
theories he presented.

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 After the remittitur issued, the trial court denied Max and
Rogari’s fee request without discussing or ruling on the merits of their
anti-SLAPP motions.
In 2024, we reversed that denial on the basis that assessing
the merits of the underlying anti-SLAPP motion is a “ ‘predicate’ ”
to ruling on an anti-SLAPP fee motion. We instructed the trial
court to adjudicate the merits of the anti-SLAPP motions and,
based thereon, determine Max and Rogari’s entitlement to fees
under section 425.16, subdivision (c).
Following remand, the court held a hearing on the fee motions.
On November 7, 2024, the trial court denied fees based on a detailed
analysis of the anti-SLAPP motions’ merits.
Max and Rogari timely appealed that denial.
DISCUSSION
A. Applicable Legal Framework
“The Legislature enacted [the anti-SLAPP statute] to prevent
and deter ‘lawsuits . . . brought primarily to chill the valid exercise
of the constitutional rights of freedom of speech and petition for
the redress of grievances.’ (§ 425.16, subd. (a).)” (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The statute
“provides a procedure for weeding out, at an early stage, meritless
claims arising from [such] protected activity.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 384 (Baral), italics omitted.)
With certain exceptions inapplicable here, “a prevailing
defendant on [an anti-SLAPP motion] shall be entitled to recover
that defendant’s attorney’s fees and costs.” (§ 425.16, subd. (c)(1).)
Where, as here, “a plaintiff dismisses an action while an anti-
SLAPP motion is pending, the defendant may nonetheless be
entitled to recover attorney fees.” (Wilkerson v. Sullivan (2002)
99 Cal.App.4th 443, 446; accord, Pfeiffer, supra, 101 Cal.App.4th

8
at p. 218.) Whether a defendant is entitled to attorney fees under
such circumstances “wholly depend[s] upon a determination of
the merits of the [underlying] SLAPP motion.” (Pfeiffer, supra, at
p. 218; Wilkerson, supra, at p. 447.)
Section 425.16 provides “a two-step process” for assessing
the merits of an anti-SLAPP motion. (Navellier v. Sletten (2002)
29 Cal.4th 82, 88.) “First, the court decides whether the defendant
has made a threshold showing that the challenged cause of action
is one arising from protected activity. [Citation.] . . . [Citation.] If
the court finds that such a showing has been made, it must then
determine whether the plaintiff has demonstrated a probability of
prevailing on the claim.” (Ibid.)
To satisfy the second prong, a plaintiff need only establish
a “ ‘minimum level of legal sufficiency’ ” (Grewal v. Jammu (2011)
191 Cal.App.4th 977, 989; Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291 (Soukup)). Specifically, the plaintiff
“must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to sustain
a favorable judgment if the evidence submitted by the plaintiff is
credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)

B. The Fiduciaries’ Malicious Prosecution Action
Had the Requisite Minimal Merit
There is no dispute, and we agree, 8e6 and the fiduciaries’
malicious prosecution action targeted protected activity—
specifically, Max’s and Rogari’s prosecution of Max I. Whether the
malicious prosecution action constitutes a SLAPP thus depends
entirely on the second prong of the anti-SLAPP analysis: whether
8e6 and the fiduciaries established the malicious prosecution
action had the requisite “ ‘minimal merit.’ ” (Cuevas-Martinez v.
Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1117 (Cuevas).)
We review this issue de novo. (See Ross v. Seyfarth Shaw LLP

9
(2023) 96 Cal.App.5th 722, 734.) To assess this, we begin with
the elements of a meritorious malicious prosecution claim. Such
a claim requires the plaintiff to prove a prior action “commenced
by or at the direction of ” the malicious prosecution defendant
was (1) “pursued to a legal termination” on the merits favorable to
the malicious prosecution plaintiff; (2) “brought without probable
cause;” and (3) “initiated with malice.” (Soukup, supra, 39 Cal.4th
at p. 292.)
Max and Rogari argue the fiduciaries failed to meet their
second prong burden. We disagree. The fiduciaries met their
burden on at least one cause of action: the conspiracy to defraud
claim against them. That is enough. (See Cuevas-Martinez, supra,
35 Cal.App.5th at p. 1119 [single malicious prosecution claim may
be based on prior action alleging numerous causes of action].)

1. Favorable Termination
The trial court sustained a demurrer as to the conspiracy to
defraud cause of action in Max I because Max failed to allege facts
supporting a legally cognizable claim. Max declined the court’s
offer to correct this deficiency through amendment. He thereby
“ ‘ “practically confesse[d] that he has alleged in his pleading every
fact he is prepared to prove in support of his action.” (Wells v.
Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785.) This should
“ ‘ “be regarded as a conclusive determination of the litigation on
its merits.” ’ ” (Ibid.) Thus, the court terminated the conspiracy
to defraud claim on the merits in the fiduciaries’ favor.
Max and Rogari argue that the logic of treating a failure
to amend following a sustained demurrer as a final termination
on the merits should not apply here. They note Max attempted,
unsuccessfully, to file a further amended complaint that also
alleged a conspiracy to commit fraud claim, and that Max included

10
a variant of that claim in a subsequent lawsuit against the
fiduciaries as well (Max v. 8e6 Corp., et al. (Super. Ct. L.A.
County, No. 19STCV1160) (Max II)). We are not persuaded.
Even assuming our favorable termination analysis may consider a
proposed amended complaint the court rejected and/or a complaint
in separate litigation, these filings did not correct the fatal
deficiencies in the FAC’s conspiracy claim. Rather, they reflect
a new, entirely different claim. The FAC’s conspiracy to defraud
claim alleged self-dealing and misrepresentations in 2015–2016
documents regarding “taxes 8e6 . . . owed . . . and funds needed
to be distributed to preferred shareholders to justify a low, falsely-
based redemption share price for common shareholders.” Both
the proposed claim in the failed second amended complaint and the
fraud claim in Max II, by contrast, allege “false representations . . .
in 2007 and 2008 regarding 8e6[’s] . . . financial strength at the
time to induce [Max] to not exercise his redemption rights” prior
to a merger. Indeed, in a 2022 unpublished opinion, we held that
Max I “did not mention or involve the basis of [Max II]: fraudulent
misrepresentations regarding [a] transaction in 2008. Thus, both
the injury and the [fiduciaries’] offending conduct at issue in the
two fraud claims are distinct.” (Max v. 8E6 Corp. (Mar. 29, 2022,
B307406) [nonpub. opn.].)

2. Effect of Max I Appeal
Nor do we agree with Max and Rogari that the pendency of
the Max I appeal during the malicious prosecution action prevented
the fiduciaries from establishing the favorable termination element
of their malicious prosecution claim. “The law . . . necessarily views
[a malicious prosecution] plaintiff as able to plead and prove, at the
moment judgment is entered [in the underlying action], a favorable
termination of the underlying action, despite the pendency, or

11
potential pendency, of an appeal.” (Drummond, supra, 176
Cal.App.4th at p. 458.) Such an appeal may render a claim for
malicious prosecution premature, but “the proper remedy is to
stay the [malicious prosecution] action” pending disposition of the
underlying appeal. (Ibid.) Had the trial court stayed, as it should
have, the malicious prosecution action pending resolution of the
Max I appeal, by the time that stay lifted, our affirmance would
not have posed an impediment to 8e6 and the fiduciaries proving
favorable termination. Max and Rogari’s filing an appeal from the
judgment in Max I thus did not undermine 8e6 and the fiduciaries’
ability to prove the favorable termination element of their malicious
prosecution claim.
The authorities Max and Rogari cite in arguing otherwise—
Ray v. First Federal Bank (1998) 61 Cal.App.4th 315 and Friedman
v. Stadum (1985) 171 Cal.App.3d 775—predate Drummond’s
thoughtful analysis of this issue, with which we agree. Indeed,
Drummond considered and rejected as inefficient and unsound
Friedman’s approach of requiring a malicious prosecution plaintiff
to dismiss and then refile his action depending on the outcome of an
appeal from the prior action. (Drummond, supra, 176 Cal.App.4th
at p. 458.) In addition, Ray, supra, is inapposite: It holds that
where, unlike here, the merits of an action are considered for the
first time on appeal, a favorable merits-based termination “may
occur on appeal” for the purposes of a malicious prosecution claim.
(Ray, supra, at p. 321.)

3. Probable Cause
The question of probable cause is “whether, as an objective
matter, the prior action was legally tenable or not.” (Sheldon Appel
Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 868.) “A litigant will
lack probable cause for his action” if, inter alia, “he seeks recovery

12
upon a legal theory which is untenable under the facts known to
him.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164–165
(Sangster).)
Max’s conspiracy to defraud theory is untenable under the
facts Max himself alleged, and that were thus “known to [Max
and Rogari].” (Sangster, supra, 68 Cal.App.4th at p. 165.) Namely,
the FAC alleges facts inconsistent with Max having relied on the
fiduciaries’ purported misrepresentations. It alleges “[t]he false
representations [in 2015 and 2016 letters] along with the writing
asking [Max] to redeem his shares in 8e6 . . . were made and sent to
[Max] in an attempt to defraud [him] out of his investment in 8e6,”
and the fiduciaries “repeated the[se] false representations” in
subsequent writings about “the need to distribute additional money
to [the fiduciaries] and preferred stockholders, . . . asserting that
common stockholders such as Max were only entitled to $0.52 for
their shares. [¶] . . . [Max] objected to [the fiduciaries’] proposed
self-dealing as reflected in [these writings]” and “refused to redeem
his shares in 8e6.” (Italics added.) The FAC further confirms
that the fiduciaries were “unable to trick [Max] into redeeming his
shares for the minuscule sums proposed,” and instead “simply used
their control of the corporation’s bank accounts to effectuate their
fraud scheme.” Because these alleged facts are inconsistent with
a legally tenable fraud-based claim against the fiduciaries,7 and
because Max and Rogari were necessarily aware of them when
they filed the FAC, they lacked probable cause to bring the FAC’s
conspiracy to defraud claim.

7 As the trial court correctly noted in its demurrer ruling on
this claim, there exists no independent cause of action for civil
conspiracy, so Max needed to plead the elements of a fraud claim to
support his “conspiracy to defraud” cause of action.

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 4. Malice
“The malice element goes to the defendant’s subjective intent
in initiating or continuing the prior action.” (Olivares v. Pineda
(2019) 40 Cal.App.5th 343, 356.) “It is not limited to actual hostility
or ill will toward the plaintiff.” (Sierra Club Foundation v. Graham
(1999) 72 Cal.App.4th 1135, 1157.) “ ‘Since parties rarely admit
an improper motive, malice is usually proven by circumstantial
evidence and inferences drawn from the evidence.’ ” (Golden State
Seafood, Inc. v. Schloss (2020) 53 Cal.App.5th 21, 34.)
Although lack of probable cause is alone insufficient to
support an inference of malice, “proof of malice can consist of
evidence a party knowingly brings an action without probable
cause.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226,
italics added; Soukup, supra, 39 Cal.4th at p. 292.) Here, the
allegations in the complaint negating an element of the conspiracy
to defraud claim—that Max knew he did not rely on any purported
misrepresentations—support an inference that Max, as the party
verifying the complaint, and Rogari, as the attorney drafting
it, “knowingly br[ought] an action without probable cause.”

5. The Fiduciaries’ Other Bases for Alleging
Malicious Prosecution
Max and Rogari appear to suggest that even if one of their
Max I causes of action against the fiduciaries was faulty, the
fiduciaries were required to show, but failed to, that Max and
Rogari maliciously prosecuted all causes of action against the
fiduciaries in Max I. We disagree. “[A]n action for malicious
prosecution lies when but one of alternate theories of recovery
[against a defendant] is maliciously asserted.” (Bertero v. National
General Corp. (1974) 13 Cal.3d 43, 57, fn. 5; accord, Soukup, supra,
39 Cal.4th at p. 292; Crowley v. Katleman (1994) 8 Cal.4th 666, 679,

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695.) Moreover, for anti-SLAPP purposes, when a plaintiff has
alleged a “single malicious prosecution cause of action premised on
numerous theories, he need[ ] . . . show only the requisite merit as
to any one of those theories” in order to survive an anti-SLAPP
motion. (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1119.)
Thus, maliciously prosecuting one Max I cause of action—
the conspiracy to defraud theory against the fiduciaries—is alone
sufficient to support that the fiduciaries’ malicious prosecution
claim had minimal merit.

C. The Malicious Prosecution Complaint Was Not
a SLAPP
Because the fiduciaries’ malicious prosecution claim had
the requisite minimal merit, the entire malicious prosecution
complaint—containing both that claim and 8e6’s malicious
prosecution claim—cannot constitute a SLAPP. Max’s and Rogari’s
anti-SLAPP motions asked the court to strike “the entirety” of the
malicious prosecution complaint that 8e6 and the fiduciaries jointly
filed. Max and Rogari did not seek, in the alternative, to strike
certain claims contained therein. (Baral, supra, 1 Cal.5th at p. 393
[“[w]e agree . . . that the Legislature’s choice of the term ‘motion to
strike’ reflects the understanding that an anti-SLAPP motion, like
a conventional motion to strike, may be used to attack parts of a
count as pleaded”].) Accordingly, Max and Rogari could not have
prevailed on their anti-SLAPP motions.8 (See Oasis West Realty,

8 Placing the burden on the anti-SLAPP movant to identify
what portions of a complaint the movant seeks to strike is
consistent with California Supreme Court authority requiring
the movant to specifically identify the portions of a lawsuit arising
from protected activity, if the entire lawsuit does not. (See Park v.
Nazari (2023) 93 Cal.App.5th 1099, 1108 [“[w]here a defendant

15
LLC v. Goldman (2011) 51 Cal.4th 811, 821 [if a single cause of
action arising entirely from protected activity asserts “a number of
acts of alleged misconduct and theories of recovery,” “for purposes of
reviewing the ruling on an anti-SLAPP motion, it is sufficient to
focus on just one,” if that one has the requisite merit].)

D. Max and Rogari Are Not Entitled to Attorney Fees
An award of attorney fees under the anti-SLAPP statute
is “wholly dependent upon a determination of the merits of the
[underlying] SLAPP motion.” (Pfeiffer, supra, 101 Cal.App.4th
at p. 218.) We agree with the trial court that Max’s and Rogari’s
anti-SLAPP motions, had they not been rendered moot, would have
been denied on the merits. The court thus correctly denied their
motion for fees.

moves to strike the entire complaint and fails to identify, with
reasoned argument, specific claims for relief that are asserted to
arise from protected activity, the defendant does not carry his or
her first-step burden so long as the complaint presents at least one
claim that does not arise from protected activity”].)

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 DISPOSITION
The order is affirmed. Respondents shall recover their costs on
appeal.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

BENDIX, J.

M. KIM, J.

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