Filed 3/23/16 Fidelity National Title Ins. Co. v. Cothran 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


FIDELITY NATIONAL TITLE                                              B258692
INSURANCE COMPANY,
                                                                     (Los Angeles County
         Cross-complainant and Respondent,                           Super. Ct. No. BC461969)

         v.

JONATHAN COTHRAN,

         Cross-defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Elizabeth
R. Feffer, Judge. Affirmed.
         Law Offices of Tang Kiet and Tang Kiet for Cross-defendant and Appellant.
         Hershorin & Henry, Lori C. Hershorin, Claudia Mourad for Cross-complainant
and Respondent.
                                __________________________________
       Cross-defendant Jonathan Cothran appeals from an order denying his special
motion to strike (anti-SLAPP motion under Code of Civil Procedure section 425.16) a
first amended cross-complaint for malicious prosecution filed by Fidelity National Title
Insurance Company (Fidelity Title). This is Cothran’s second anti-SLAPP motion aimed
at Fidelity Title’s cause of action for malicious prosecution. In a prior appeal, we
affirmed the trial court’s denial of Cothran’s first anti-SLAPP motion (Fidelity Nat. Title
Ins. Co. v. Cothran (Dec. 31, 2013, B245515) [nonpub. opn.]), and our decision in that
appeal is final. As we explain below, Cothran may not use a second anti-SLAPP motion
to challenge the same allegations in Fidelity Title’s cause of action for malicious
prosecution. Accordingly, we affirm.
                                     BACKGROUND
       Because we have already set forth the majority of the background facts in our
opinion in the prior appeal (Fidelity Nat. Title Ins. Co. v. Cothran, supra, B245515, pp.
2-10), we will quote extensively from that opinion.
“Underlying Action (Sanchez I)
       “On November 20, 2009, plaintiff Teodoro Sanchez filed the underlying action
                                                                                 1
(Case No. BC426454) against defendant Lawyers Title [Insurance Company][ ] and other
defendants who are not parties to the present action. Attorney Quyen [Kiet] filed the
underlying action on Sanchez’s behalf. Sanchez asserted class action causes of action
against Lawyers Title for fraud and deceit, unfair or unlawful business practices, and
violation of California’s Consumer Legal Remedies Act, and individual causes of action
against Lawyers Title for bad faith denial of insurance claim, intentional infliction of
emotional distress, and cancelation of deed of trust.

       1
         As we explained in our opinion in the prior appeal: “Lawyers Title Insurance
Company (Lawyers Title) is a defendant in both the underlying and present actions. At
some point during the pendency of the underlying or present action, Lawyers Title
merged with Fidelity National Title Insurance Company (Fidelity Title). Fidelity Title, as
‘successor by merger’ to Lawyers Title, filed the malicious prosecution cross-complaint
in the present action that is at issue on appeal. Fidelity Title is the respondent on appeal.”
(Fidelity Nat. Title Ins. Co. v. Cothran, supra, B245515, p. 2.)

                                              2
       “In the original complaint in the underlying action, Sanchez alleged, in or about
November 2008, he discovered a man named Gilberto Lopez (a defendant in the
underlying action) had stolen his identity and obtained a $75,000 loan from lender
Antalejeff, Inc. (another defendant in the underling action). The loan, which was secured
by a deed of trust against Sanchez’s property, was serviced by Capital Benefit Mortgage,
Inc. (a defendant in the underlying action). Shortly after learning about the fraudulent
loan in his name, Sanchez contacted Capital Benefit Mortgage and Antalejeff, but neither
assisted him in resolving the issue. The loan was in default and they wanted to foreclose
on Sanchez’s property.
       “Sanchez also alleged foreclosure could not proceed because the deed of trust
‘securing the fraudulent loan was defective’ as originally recorded in that it ‘was missing
the legal description, . . . also known as “Exhibit A”’ to the deed of trust. According to
Sanchez, Lawyers Title, the title insurer for Antalejeff, ‘took matters into [its] own hands
and unlawfully made the correction through fraudulent notarizations.’ Lawyers Title,
through its title officer Ron Fernando, ‘directed its regular notary public . . . to sign and
certify two blank All-Purpose Acknowledgements, without the physical presence or
actual consent of the signing party [Sanchez] in violation of California Civil Code
sections 1185(a) and 1189.’ Sanchez asserted he ‘is informed and believes that Class
Members were similarly affected by unlawfully produced and recorded “blank
acknowledgements” by’ Lawyers Title.
       “Sanchez further alleged, once Lawyers Title ‘corrected the deficiencies in the
fraudulently procured Deed of Trust by directing the notary public to violate state laws,’
Capital Benefit Mortgage and Antalejeff ‘were now free to resume [their] foreclosure
efforts.’ On July 22, 2009, a Notice of Default issued and foreclosure proceedings
commenced. Sanchez contacted Lawyers Title, in addition to Capital Benefit Mortgage
and Antalejeff, but received no assistance in resolving the matter.
       “In January 2010, Sanchez filed a first amended complaint in the underlying
action, asserting the same causes of action he alleged in the original complaint. After
Lawyers Title filed a demurrer to the first amended complaint—which was not ruled on

                                               3
by the trial court—Sanchez filed a second amended complaint in July 2010, dropping the
class action causes of action and the allegations regarding Lawyers Title’s involvement in
procuring the fraudulent notarizations, and adding an individual cause of action for
negligence against Lawyers Title. Lawyers Title demurred to the second amended
complaint, and the trial court sustained the demurrer without leave to amend as to the
negligence cause of action and overruled the demurrer as to the cause of action for
intentional infliction of emotional distress.
       “In November 2010, Sanchez filed a third amended complaint in the underlying
action, asserting one cause of action against Lawyers Title for intentional infliction of
                       2]
emotional distress.[        Sanchez alleged his property was sold at a trustee’s sale on or about
December 8, 2009. In the cause of action for intentional infliction of emotional distress,
Sanchez alleged lender Antalejeff and loan servicer Capital Benefit Mortgage advised
him, when he attempted to cancel the trustee’s sale, that ‘the foreclosure sale was
proceeding at the insistence of’ Lawyers Title and he should contact Lawyers Title
‘directly to stop the sale.’ Sanchez further alleged that he contacted Lawyers Title’s
managing agent/attorney, who ‘was unresponsive and uncooperative.’ According to
Sanchez, Antalejeff, Capital Benefit Mortgage and Lawyers Title ‘acted in concert and
proceeded with the foreclosure process’ even though he sent them a report by a
fingerprint expert showing that the fingerprint on the notary public logbook was not
Sanchez’s fingerprint. Sanchez ‘demanded that the lending Defendants’ loss from
[Lopez’s] fraud be submitted to [Lawyers Title] for resolution rather than be resolved by
trustee’s sale.’ Sanchez asserted Lawyers Title’s conduct, as alleged in this cause of

       2
         “Sanchez asserted causes of action against Gilberto Lopez for fraud and
intentional infliction of emotional distress; causes of action against Antalejeff for
intentional infliction of emotional distress, cancelation of deed of trust and trustee’s deed
upon sale, and quiet title; a cause of action for intentional infliction of emotional distress
against Capital Benefit Mortgage; a cause of action for negligence against Dorothea
Adamson and Mayra Pineda (notaries); and causes of action against Enduravest, Inc. (the
party who acquired title to Sanchez’s property at the trustee’s sale) for cancelation of
deed of trust and trustee’s deed upon sale and quiet title.”

                                                  4
action, was ‘outrageous,’ entitling him to damages including punitive damages. Sanchez
did not base his intentional infliction of emotional distress cause of action in the
underlying action on Lawyers Title’s involvement in creating fraudulent documents.
       “Lawyers Title answered the third amended complaint and then, in February 2011,
                                         3]
filed a motion for summary judgment.[         Sanchez opposed the motion. The caption page
of Sanchez’s opposition indicates Sanchez was represented by attorney Quyen Kiet and
law firm [Kiet Cothran & Zirillo, APC (KCZ)]. As set forth in the trial court’s order
granting the summary judgment motion, ‘Lawyers Title moved for summary judgment on
the second cause of action for IIED [intentional infliction of emotional distress] on the
grounds that Lawyers Title’s conduct was not outrageous under California law in
advising its insured [Antalejeff] as to how to obtain policy benefits, that Lawyers Title’s
actions and communications with defendant Antalejeff were privileged as they were done
in conformity with its role, contractual duty, and obligation as the title insurer, there is no
evidence to show that Lawyers Title intended to cause plaintiff emotional distress, and
that by plaintiff’s own admission, Lawyers Title’s actions were not the cause of his
emotional distress.’
       “The trial court found the evidence submitted in connection with the motion for
summary judgment established, in pertinent part: ‘Beginning in December 2008,
Lawyers Title spoke with Antalejeff’s representatives about plaintiff’s fraud claim,
provided advice to Antalejeff about losses that were indemnifiable under the title policy,
and how California law requires a foreclosure sale to establish loss under the title policy
since plaintiff failed to file a verified quiet title action alleging the forgery.’ As Lawyers
Title’s expert explained in a declaration submitted in support of the summary judgment
motion, ‘such communications between an insured and the insurance company [are]
standard practice in the industry.’ On March 26, 2009, Sanchez tendered a claim to

       3
        “In connection with the [first] anti-SLAPP motion, cross-defendants presented
evidence showing, on April 8, 2011, before the trial court heard Lawyers Title’s summary
judgment motion in the underlying action, a criminal court in an action filed against
Lopez voided the fraudulent deed of trust and restored title to Sanchez.”

                                                5
Lawyers Title for compensatory damages arising from the alleged fraudulent loan.
Lawyers Title denied the claim because Sanchez was not an insured under the title policy.
‘Lawyers Title owed no duties to plaintiff as he was not the named insured under the
policy.’ At his deposition, Sanchez testified ‘the “only reason” he is suffering pain is due
to the fact that “someone took out a loan on the subject property” and that “someone
encumber[ed] [his] property with a Deed of Trust.”’ Sanchez believed he still owned the
property because he continued to live there, although he was ‘aware that title was legally
transferred.’
       “On May 3, 2011, the trial court granted Lawyers Title’s motion for summary
judgment, finding ‘no triable issues of material fact with respect to whether [Lawyers
Title] acted outrageously, had any intent to inflict injury upon plaintiff [Sanchez], or
acted with the realization that injury will result.’ The court also found Sanchez’s
‘damages were not caused by [Lawyers Title], who did not cause plaintiff’s property to
be encumbered with the deed of trust.’ Judgment was entered on May 24, 2011. [Fn.
omitted.]
“Present Action (Sanchez II)
       “Complaint
       “On May 20, 2011, before the judgment in the underlying action was entered,
Sanchez filed the present action (Case No. BC461969) against Lawyers Title, asserting
class action causes of action for slander of title and unlawful business practices and an
individual cause of action for intentional infliction of emotional distress. Kiet, Cothran
and KCZ are the attorneys/law firm who commenced and are prosecuting the present
action. After Lawyers Title filed a demurrer to the complaint—which was not ruled on
by the trial court—Sanchez filed a first amended complaint on September 13, 2011,
adding an individual cause of action for slander of title against Lawyers Title.
       “In the first amended complaint in the present action, Sanchez alleged the
underlying action against Lawyers Title ‘was limited in scope to only IIED [intentional
infliction of emotional distress] for wrongfully advising and inducing the Lender to
foreclose.’ Sanchez further alleges he ‘files this action under a different set of facts and

                                              6
circumstances unrelated to [Sanchez]’s injuries in the Previous [underlying] Action.
Specifically, the harm to [Sanchez] alleged herein arises from [Lawyers Title]’s separate
malicious acts of July 2009: its conspiracy to commit perjury and intentional recording of
fraudulent documents. Furthermore, [Sanchez] is informed and believes that [Lawyers
Title] engaged in this misconduct at a scale that affected hundreds to thousands of
consumers to warrant a class wide action.’
       “In his cause of action for intentional infliction of emotional distress in the present
action, Sanchez alleged: ‘(1) [Lawyers Title] knowingly induced Notary Adamson to
declare false acknowledgements under penalty of perjury in support of the amended
Forged Trust Deed; this is criminal misconduct and outrageous on its face; (2) [Lawyers
Title] then recorded the false acknowledgements as a public record. It was outrageous to
publicize that [Sanchez] signed a deed of trust, when in fact he did not; (3) when notified
of its misconduct, [Lawyers Title] refused to mitigate and/or cure its wrongful recording;
(4) [Lawyers Title] knew that [Sanchez] suffered as a previous victim of real estate fraud
and despite this knowledge it too victimized [Sanchez] by misappropriating [Sanchez]’s
                                4]
identity to amend the Deed.’[
“Demurrer
       “In October 2011, Lawyers Title demurred to the first amended complaint in the
present action on numerous grounds including that Sanchez’s claims in the present action
are barred by collateral estoppel. Sanchez opposed the demurrer. On February 2, 2012,
the trial court issued an order sustaining the demurrer without leave to amend as to the

       4
          “In connection with the [first] anti-SLAPP motion, cross-defendants presented
evidence showing, on September 28, 2011, Ron Fernando, a title officer at Lawyers Title,
was indicted on charges related to false acknowledgements he prepared in connection
with the fraudulent deed of trust which was secured by Sanchez’s property. The class
action causes of action for slander of title and unlawful business practices in the present
action are based on these alleged false acknowledgements. Moreover, on July 25, 2012,
Sanchez filed a third action against Antalejeff, Capital Benefit Mortgage, Fernando,
Enduravest and Lawyers Title for identity theft, slander of title and cancelation of cloud
on title, with allegations regarding these alleged false acknowledgements (Case No.
BC488560).”

                                              7
cause of action for intentional infliction of emotional distress on the ground the cause of
action was barred by collateral estoppel because the same ‘issues were actually litigated
in the prior dispute and the issues were decided on the merits.’ As to the class action
allegations, the court sustained the demurrer with leave to amend. The court overruled
the demurrer as to the individual cause of action for slander of title.
“Cross-Complaint
       “On May 22, 2012, Fidelity Title, as ‘successor by merger to’ Lawyers Title filed
a cross-complaint in the present action against attorneys Cothran and Kiet and the law
firm KCZ (collectively, cross-defendants), asserting causes of action for malicious
prosecution and abuse of process. Fidelity Title based the malicious prosecution action
on cross-defendants’ filing and continued pursuit of the underlying action, and his filing
of the first amended complaint in the present action with a duplicate cause of action for
intentional infliction of emotional distress. [Fn. omitted.] [¶] . . . [¶]
“[First] Anti-SLAPP Motion
       “On July 16, 2012, cross-defendants [including Cothran] filed their [first] anti-
SLAPP motion under [Code of Civil Procedure] section 425.16, asking the trial court to
strike Fidelity Title’s cross-complaint. Cross-defendants argued the causes of action in
the cross-complaint arise from protected activity within the meaning of the anti-SLAPP
statute, and Fidelity Title cannot demonstrate a probability of prevailing on either cause
of action. As to the malicious prosecution cause of action, cross-defendants argued
Fidelity Title cannot demonstrate a probability of prevailing on its claim because ‘the fact
that [Lawyers Title] prevailed on [Sanchez]’s cause of action for intentional infliction of
emotional distress, by way of summary judgment in the TAC [third amended complaint
in the underlying action] and by way of demurrer in the FAC [first amended complaint in
the present action], does not establish a lack of probable cause or the malice element on
the part of [Sanchez]’s attorneys.’ . . .
       “In its written opposition to the [first] anti-SLAPP motion, Fidelity Title conceded
the causes of action in the cross-complaint arise from protected activity but urged the trial



                                               8
court to deny the anti-SLAPP motion because Fidelity Title can demonstrate a probability
of prevailing on its claims. . . .
       “On October 3, 2012, the trial court heard oral argument on the anti-SLAPP
motion and issued an order denying it as to the cause of action for malicious prosecution
and granting it as to the cause of action for abuse of process. . . .” (Fidelity Nat. Title Ins.
Co. v. Cothran, supra, B245515, pp. 3-10.)
Prior Appeal
       Cross-defendants, including Cothran, appealed from the trial court’s order,
contending the trial court should have granted their first anti-SLAPP motion as to both
causes of action and not just as to the abuse of process cause of action. We affirmed the
trial court’s denial of the first anti-SLAPP motion as to the malicious prosecution cause
of action, concluding Fidelity Title demonstrated a probability of prevailing on its
malicious prosecution claim against cross-defendants (including Cothran) based on the
filing and continued pursuit of the underlying action which terminated in Lawyers Title’s
favor. (Fidelity Nat. Title Ins. Co. v. Cothran, supra, B245515, p. 12.) At oral argument
in the prior appeal, Fidelity Title conceded it could not base its malicious prosecution
cause of action in the present action on Sanchez’s filing of the intentional infliction of
emotional distress cause of action in the present action, even though the trial court
sustained the demurrer to that cause of action without leave to amend, because the
present action had not terminated. (Ibid.) Accordingly, on remand, Fidelity Title filed a
first amended cross-complaint for malicious prosecution against cross-defendants,
omitting the allegations about Sanchez’s filing of the intentional infliction of emotional
                                                  5
distress cause of action in the present action.




       5
        On August 21, 2015, Fidelity Title filed a request for judicial notice in this court
with documents filed in the prior appeal. Because those documents are not necessary to
our resolution of this appeal, we deny the request for judicial notice.

                                               9
       The California Supreme Court denied cross-defendants’ petition for review and
our appellate decision became final on March 27, 2014 when this court issued the
remittitur.
Second Anti-SLAPP Motion
       On April 7, 2014, Cothran filed his second anti-SLAPP motion asking the trial
court to strike the malicious prosecution cause of action in Fidelity Title’s first amended
cross-complaint as to him. Cross-defendants Quyen Kiet and KCZ did not join in the
motion.
       In this second anti-SLAPP motion, Cothran made a new argument that he did not
make in his first anti-SLAPP motion—that Fidelity Title could not demonstrate a
probability of prevailing on its malicious prosecution cause of action as to him because
he did not represent Sanchez in the underlying action.
       In our opinion in the prior appeal, we pointed out the record was clear that both
cross-defendants Quyen Kiet and KCZ prosecuted the underlying action on behalf of
Sanchez. (Fidelity Nat. Title Ins. Co. v. Cothran, supra, B245515, pp. 5, 13.) As
discussed above, Kiet filed the underlying action and both Kiet and KCZ represented
Sanchez in opposing Fidelity Title’s successful summary judgment motion. In cross-
defendants’ first anti-SLAPP motion, Cothran did not dispute he also prosecuted the
underlying action. In fact, in the reply brief in support of the first anti-SLAPP motion,
cross-defendants indicated they were all Sanchez’s “attorneys of record” in both the
present and underlying actions. (Id. at p. 13.) For the first time on appeal in connection
with the first anti-SLAPP motion, however, cross-defendants argued Fidelity Title could
not demonstrate the prior action was commenced or prosecuted by all cross-defendants,
including Cothran. We concluded cross-defendants had forfeited the argument by not
raising it in the trial court. (Ibid.) Thus, on remand, Cothran filed a second anti-SLAPP
motion—challenging the same allegations in Fidelity Title’s malicious prosecution cause
of action he had challenged in his first anti-SLAPP motion—in order to make an
argument he had neglected to make in his first anti-SLAPP motion.



                                             10
       In opposition to Cothran’s second anti-SLAPP motion, Fidelity Title argued
Cothran “d[id] not get a second bite at the apple” because the law of the case barred
consideration of the second anti-SLAPP motion. Fidelity Title also opposed the motion
on the merits.
       On August 4, 2014, the trial court heard oral argument on Cothran’s second anti-
SLAPP motion and denied it based on the law of the case and, alternatively, on a
consideration of the merits. On August 20, 2014, after receiving Cothran’s written
objections to Fidelity Title’s proposed order, the trial court signed and adopted Fidelity
Title’s proposed order as the order on the motion. On September 8, 2014, Cothran
                                            6
appealed from the August 20, 2014 order.
       On October 8, 2014, the trial court signed Cothran’s proposed order denying his
second anti-SLAPP motion, which Cothran submitted to the court on August 18, 2014
with his objections to Fidelity Title’s proposed order. Accordingly, at that time there
were two orders denying the second anti-SLAPP motion—the August 20, 2014 order
from which Cothran appealed, and the October 8, 2014 order signed after the matter (the
denial of Cothran’s anti-SLAPP motion) was stayed in the trial court as a result of this
appeal (Code Civ. Proc., § 916, subd. (a)). After Fidelity Title pointed out the
discrepancy to the trial court, the trial court struck the October 8, 2014 order on the
ground that it was signed in error. The October 8, 2014 order is not appealable. This
appeal is from the August 20, 2014 order.




       6
         On appeal, Cothran argues Fidelity Title violated California Rules of Court, rule
3.1312(a) in the preparation and submission of the proposed order in that Fidelity Title
failed to serve the proposed order on Cothran within five days of the ruling and instead
served it 10 days after the ruling. Cothran did not raise this issue in the trial court when it
submitted its objections to the proposed order on August 18, 2014. Cothran has forfeited
this issue on appeal. Notwithstanding that, Cothran does not explain how he might have
been prejudiced given that the trial court did not sign Fidelity Title’s proposed order until
after the court received Cothran’s objections to that proposed order.

                                                11
                                        DISCUSSION
Second Anti-SLAPP Motion
       We disagree with Cothran’s assertion he is entitled to file another anti-SLAPP
motion after unsuccessfully appealing the denial of his first anti-SLAPP motion. Fidelity
Title did not add a cause of action to its cross-complaint or assert brand new allegations
against Cothran in the malicious prosecution cause of action. Cothran’s second anti-
SLAPP motion asks the court to strike the same cause of action and the same allegations
he challenged in his first anti-SLAPP motion. Cothran argues he is entitled to a second
bite at the apple because he forfeited an argument the first time around. He cites no
authority indicating it is permissible for a party to file successive anti-SLAPP motions as
a means of having the court reconsider its earlier denial of an anti-SLAPP motion.
       Cothran references a subsection of the anti-SLAPP statute which reads: “If the
court determines that the plaintiff has established a probability that he or she will prevail
on the claim, neither that determination nor the fact of that determination shall be
admissible in evidence at any later stage of the case, or in any subsequent action, and no
burden of proof or degree of proof otherwise applicable shall be affected by that
determination in any later stage of the case or in any subsequent proceeding.” (Code Civ.
Proc., § 425.16, subd. (b)(3).) The problem with Cothran’s interpretation of this
provision is that we are not a “later stage of the case.” It is not as if Fidelity Title is
attempting to use the trial court’s ruling on the first anti-SLAPP motion to defeat a later-
filed summary judgment motion (which would be impermissible under this provision).
Here, Fidelity Title is merely saying Cothran cannot make the same motion against
Fidelity Title twice because Cothran did not like the decision the first time around and
wants to make an argument he forfeited in connection with the first motion. We agree
with Fidelity Title’s position.
       In connection with Cothran’s first anti-SLAPP motion, we decided Fidelity Title
established a probability of prevailing on its cross-action for malicious prosecution
against Cothran based on the filing and continued pursuit of the underlying action which



                                               12
terminated in Lawyers Title’s favor. We have no legal cause to reconsider our decision.
                                                                          7
The trial court properly denied Cothran’s second anti-SLAPP motion.
          Our determination Fidelity Title established a probability of prevailing on its
cross-action for malicious prosecution is not admissible (and may not be cited as law of
the case) at a later stage of this action (e.g., a summary judgment motion) or in another
action.
Fidelity Title’s Motion for Attorney Fees
          Cothran devotes less than a page of his opening brief to his argument the trial
court failed to comply with the anti-SLAPP statute when it granted Fidelity Title’s
motion for attorney fees on September 24, 2014. The order awarding Fidelity Title
$3,987.50 in attorney fees and $60 in costs is not part of the August 20, 2014 order
denying Cothran’s anti-SLAPP motion from which Cothran appealed. Cothran did not
file a separate notice of appeal from the September 24, 2014 order (although he filed an
amended civil case information statement on October 27, 2014 indicating he was
appealing from the September 24, 2014 order), and he cites no authority indicating that
order is directly appealable in any event. While Code of Civil Procedure section 425.16,
subdivision (i), provides that an order granting or denying an anti-SLAPP motion is
directly appealable, it does not similarly provide that a subsequent interlocutory order
awarding or denying attorney fees under section 425.16, subdivision (c), is immediately
appealable. (See Doe v. Luster (2006) 145 Cal.App.4th 139, 145 [“An interlocutory
order awarding or denying attorney fees under section 425.16, subdivision (c), is not
immediately appealable under section 425.16, subdivision (i)”]; see also Baharian-Mehr
v. Smith (2010) 189 Cal.App.4th 265, 274 [“we agree with the holding in Doe [v. Luster,

          7
         On July 1, 2015, Fidelity Title filed a motion for sanctions against Cothran. On
July 2, 2015, Fidelity Title filed a motion to dismiss this appeal. Fidelity Title argues this
appeal is frivolous and prosecuted only for delay and harassment. Cothran opposes the
motions. He continues to argue his second anti-SLAPP motion was proper and has merit.
We deny the motion for sanctions and the motion to dismiss the appeal. Although
Cothran’s arguments on appeal lack merit, we do not believe this appeal from an
appealable order is subject to dismissal or sanctions.

                                               13
supra, 145 Cal.App.4th 139] that a separate attorney fee order [not issued simultaneously
with the ruling on the anti-SLAPP motion] should not be heard on interlocutory
appeal”].) The order granting Fidelity Title’s motion for attorney fees is not properly
before us on this appeal.
                                       DISPOSITION
       The order denying Cothran’s April 7, 2014 anti-SLAPP motion is affirmed.
Fidelity Title is entitled to recover costs on appeal.
       NOT TO BE PUBLISHED.




                                                         CHANEY, J.


We concur:



              ROTHSCHILD, P. J.



              JOHNSON, J.




                                              14
