Firsov v. Babichev CA6

Filed 9/7/22 Firsov v. Babichev CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

SERGEY FIRSOV, H048500 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 19-CV-345499)

v.

YEVGENIY BABICHEV et al.,

Defendants and Respondents.

The trial court dismissed under Code of Civil Procedure section 425.16 (the anti- SLAPP law) one of the causes of action in appellant Sergey Firsov’s lawsuit. Firsov contends the dismissal was improper and also challenges the related attorney fee awards to the prevailing parties. As we will explain, Firsov has not shown the trial court made any legal error, and we will therefore affirm the orders. I. BACKGROUND The record does not contain the complaint, the anti-SLAPP special motion to strike, or Firsov’s opposition to the motion, so we derive most of the background information from the order granting the anti-SLAPP motion. Firsov sued the lawyer who represented his wife in divorce proceedings and the person who served as a Russian language translator for the lawyer. Firsov alleged an intentional tort cause of action, based on what he says is a false English translation of an email in Russian. The email in question is from Firsov to his wife and contains the Russian word “mochit” in reference to his wife’s lawyer. When she learned of the email,

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the lawyer petitioned for a civil harassment restraining order against Firsov. In support of the petition, she included a declaration from the translator indicating the word “mochit” means “to kill” in Russian. The lawyer was successful in obtaining a restraining order; Firsov then sued both the lawyer and the translator. (The complaint apparently contains other causes of action against other defendants; we cannot discern the nature of those claims from the record in this appeal.) The translator moved to strike the cause of action against him under the anti- SLAPP statute, which provides a mechanism for speedy resolution of actions found to have been “brought primarily to chill the valid exercise” of free speech rights. (Code Civ. Proc. § 425.16, subd. (a).) Finding that the cause of action arose from protected activity (writings in connection with litigation) and that Firsov had not shown a probability of success on the merits, the trial court granted the motion. The lawyer who represented Firsov’s wife also achieved dismissal of a cause of action under the anti- SLAPP law. Those defendants moved for attorney fees under Code of Civil Procedure section 425.16, subdivision (c)(1), which provides for reasonable fees to a defendant prevailing on an anti-SLAPP motion. The trial court awarded $11,000 in attorney fees to the lawyer defendant, and $5,600 to the translator defendant. II. DISCUSSION A. Anti-SLAPP Rulings Firsov contends the trial court was wrong to strike the cause of action on anti- SLAPP grounds because the purportedly false declaration by the translator is not protected by the anti-SLAPP statute. (See Code of Civ. Proc. § 425.16, subd. (b)(1) [defining protected activity as any act in furtherance of the right of petition or free speech].) On appeal, a challenged order is presumed correct. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Error must be affirmatively shown, which means the appellant has a duty to provide an adequate record to the reviewing court to establish error. (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. 2