LOS ANGELES KOREAN METHODIST CHURCH v. HAAN

LOS ANGELES KOREAN METHODIST CHURCH, Plaintiff and Respondent.
v.
KENNETH T. HAAN et al., Defendants and Appellants,

B208200.

Court of Appeals of California, Second Appellate District, Division Eight.

February 4, 2010.

Kenneth T. Haan, in pro. per.; Kenneth T. Haan & Associates, Douglas E. Klein and Michael H. Kim for Defendants and Appellants the Los Angeles Korean Methodist Church, Inc., Jong Hwan Kim, Doug Y. Park, Je Oun Kim, Jong Hwan Choi, Andrew Kim, Ki Sung Song and Byung Jik Cho.

Henry M. Lee, Henry M. Lee and Douglas Han, for Plaintiff and Respondent.

Not to be Published in the Official Reports

RUBIN, Acting P. J.

Attorney Kenneth T. Haan, the Law Offices of Kenneth T. Haan, and other defendants appeal from various orders of the court involving demurrers and special motions to strike various iterations of complaints and cross-complaints. We affirm.

FACTS AND PROCEEDINGS

This lawsuit involves two groups of church members battling over selection of the pastor and control of the Los Angeles Korean Methodist Church, a place of worship where the two groups once prayed as one. The "Nam faction," which the regional organization of Methodist churches supports, champions the pastorship of Kang Sik Nam. The "Kim faction" supports the pastorship of Jong Hwan Kim.

In September 2007, respondent Los Angeles Korean Methodist Church on behalf of the Nam faction filed its first amended complaint against appellants. The complaint alleged multiple causes of action against members of the Kim faction and their attorney, Kenneth T. Haan.^{[ 1 ]} Two weeks later, the collective embodiment of the Kim faction, The Los Angeles Korean Methodist Church, Inc., filed a first amended cross-complaint against the Nam faction.^{[ 2 ]} The cross-complaint alleged the Nam faction converted weekly offerings from church members that rightfully belonged to the Kim faction. It also alleged the regional organization of Methodist churches tortiously interfered with the Kim faction's internal governance of the church. Finally, it alleged the Nam faction had misled church members into believing Pastor Nam was the rightful pastor and that the Kim faction's members were usurpers trying to seize control of the church. Among other relief, appellants' cross-complaint sought a preliminary injunction governing the two factions' use of the church. The trial court granted the injunction, and in a separate appeal we affirmed the particulars of that injunction although we remanded the matter for the posting of a bond. (See Los Angeles Korean Methodist Church v. Jong Hwan Kim (June 21, 2009, B204687) [nonpub. opn.].)

Attorney Haan disputed the merit of respondent church's first amended complaint. He asserted all the allegations against him arose from his legal representation of respondent church in a lawsuit over the church's purchase of its building from another religious organization. Arguing the litigation privilege (Civ. Code, § 47, subd. (b)) barred each cause of action against him, he demurred to respondent's complaint. In addition, he moved several weeks later to strike the complaint as a SLAPP suit. (Code Civ. Proc., § 425.16 "Strategic Lawsuit Against Public Participation".)

Respondent church moved for leave to amend its complaint to address Haan's demurrer by adding a cause of action for legal malpractice to join its claim against him for breach of fiduciary duty. Opposing Haan's demurrer and special motion to strike, respondent church noted the litigation privilege and anti-SLAPP statute did not apply to legal malpractice and breach of fiduciary duty. At the hearing on Haan's demurrer, the court noted it was disposed toward granting respondent church leave to file a second amended complaint. The court recognized, however, that respondent church should not be allowed to avoid a special motion to strike by amending its complaint before the hearing on the motion. The court thus withheld granting respondent church leave to amend as to Haan until the court could hear and rule on Haan's motion to strike, which was set for 11 days later. The court granted leave, on the other hand, for respondent to amend its complaint as to the non-Haan defendants whose interests the motion to strike did not affect.

On December 18, 2007, the court heard Haan's special motion to strike respondent's complaint. The court found the anti-SLAPP statute did not apply to causes of action against an attorney for malpractice and breach of fiduciary duty. The court therefore denied Haan's special motion to strike. The court additionally lifted the temporary withholding of its permission for respondent church to amend its complaint as to Haan, and allowed respondent to clarify its theories of Haan's liability to respondent church for malpractice and breach of fiduciary duty. About six weeks later, toward the end of January 2008, respondent church filed its second amended complaint, thus triggering a flurry of new pleadings, motions, and cross-motions.

Several days after respondent filed its second amended complaint, appellants filed their second amended cross-complaint. The cross-complaint added Henry Lee, the attorney for the cross-defendants, as a cross-defendant. Several weeks later, Haan demurred to respondent church's second amended complaint, arguing the litigation privilege defeated the church's claims against him. A few weeks after Haan filed his demurrer, attorney Lee filed a special motion to strike appellants' second amended cross-complaint. Lee argued the cross-complaint was a SLAPP suit against him for his representation of the other cross-defendants. Ten days later, Haan filed a second special motion to strike respondent church's second amended complaint. Haan argued the second amended complaint was a SLAPP suit against him for his representation of the other defendants.

April 8, 2008, was the hearing date for Haan's demurrer to respondent church's second amended complaint. The court opened the hearing by announcing it could not rule on Haan's demurrer while Haan's special motion to strike, which was set for hearing on April 22, was pending. The previous December the court had denied Haan's special motion to strike respondent's first amended complaint, and the court found Haan's pending special motion to strike the second amended complaint was an ill-disguised and unsupported motion for reconsideration of the court's December ruling. Because the pending special motion to strike did not comply with the rules governing a motion for reconsideration, the court on its own motion struck Haan's motion.

Having disposed of Haan's special motion to strike, the court turned to Haan's demurrer to respondent's second amended complaint. The court noted it had previously admonished Haan that a court does not weigh conflicts in the evidence in ruling on a demurrer because a court may properly consider only the complaint's allegations and judicially noticeable facts. It did so because the first 17 pages of Haan's demurrer contained what the court called a "plethora" of assertions disputing the truthfulness of respondent's complaint. Noting the complaint alleged Haan had previously represented respondent church in its purchase of the church building over which the Nam and Kim factions were battling for control, the court ruled that Haan's demurrer to respondent's complaint was not well-taken.

The following week, the court heard attorney Lee's special motion to strike appellants' second amended cross-complaint as a SLAPP suit against him for his representation of the other cross-defendants. The court denied the motion. The minute order does not explain the court's reason for the denial, but when the court ruled it also issued an order to show cause why it should not strike appellants' entire second amended cross-complaint for alleging a conspiracy between attorney Lee and his clients without satisfying the statutory prerequisites for claiming an attorney-client conspiracy.

The hearing on the order to show cause took place on May 5, 2008. The court found appellants' second amended cross-complaint had not complied with Civil Code section 1714.10 governing the pleading of causes of action against an attorney and his client. The court thus struck from the cross-complaint all allegations against attorney Lee, but gave appellants leave to file a cross-complaint that satisfied section 1714.10. This appeal followed.^{[ 3 ]}

DISCUSSION

1. No Appellate Jurisdiction Over Denial of Haan's First Anti-SLAPP Motion

Haan moved to strike as a SLAPP suit respondent church's first amended complaint against him. On December 18, 2007, the court denied the motion. Haan contends the court erred because "the underlying conduct at issue involved speech stemming from [his] legal representation" of the church. Appellants' notice of appeal does not mention the December 18 order. The notice of appeal states the orders appellants were challenging were:

"Orders entered on April 8, 2008 in Department 16 of the above-entitled Court formally denying Defendants' Special Motion to Strike and striking Defendants' Special Motion to Strike the Second Amended Complaint."^{[ 4 ]}

A timely notice of appeal is jurisdictional. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Without a timely notice of appeal identifying the December 18 order, we may not entertain an appellate challenge to that order. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.)

Appellants accurately cite the principle that we must construe a notice of appeal liberally if it is reasonably clear what they are challenging. (In re Joshua S. (2007) 41 Cal.4th 261, 272; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.) That principle defeats appellants here, however, because it is clear they appealed from the April 8 order denying Haan's motion to strike the second amended cross-complaint, not, as they urge, the December 18 order denying Haan's motion to strike the first amended cross-complaint.

Appellants' reliance on Holden v. California Emp. etc. Com. (1950) 101 Cal.App.2d 427 (Holden) is misplaced because that case is distinguishable. In Holden, the court entered a minute order dismissing a petition for writ of mandate. The order did not state a formal order or judgment was to follow, which meant the order was appealable. (Id. at p. 430.) Two days after the order issued, the court entered its judgment, which was a formality and under the rules of court not appealable. Two days after entry of judgment, the petitioner filed a notice of appeal from the nonappealable judgment, not from the appealable order entered four days earlier. The Holden court found the notice was nevertheless effective.

Appellants cite Holden for the proposition that mislabeling an order as a judgment and attaching the wrong date to its issuance does not render a notice of appeal ineffective. The notice in Holden referred to the judgment, but the petitioner's intent to appeal from the order dismissing his petition was indisputable. The Holden court noted: "the intent of appellant to seek a review of the action of the trial court in dismissing his petition is crystal clear. No one connected with this appeal was or could have been misled by the misdescription of the order of December 12th as the judgment of December 14th." (Holden, supra, 101 Cal.App.2d at p. 430.) What is crystal clear here, in contrast, is appellants' notice of appeal refers to the April 8 order, not the December 18 order, orders dealing with different pleadings, hearings and rulings.

Appellants contend their notice of appeal "necessarily contemplates and encompasses" the December 18 order because the notice speaks of "orders" "denying" and "striking" Haan's anti-SLAPP motion. Appellants assert the April 8 order "merely `struck' "Haan's motion, whereas the December 18 order "denied" his motion. Thus, according to appellants, their notice necessarily meant the December 18 order when the notice used the word "denied." Their argument makes sense, however, only if we delete from their notice language they wish us to overlook: Appellants appeal from "Orders entered on April 8, 2008" involving the "Second Amended Complaint."

Appellants also contend their notice of appeal "must necessarily refer back to" the December 18 order because the court erred in allowing respondent church to file a second amended complaint before Haan had the opportunity to appeal from the court's December order. In support, appellants cite decisions that prohibit plaintiffs from trying to moot in the trial court or on appeal a defendant's anti-SLAPP motion by filing an amended complaint that tries through artful pleading to hide SLAPP-offensive allegations. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 612-613.) Those decisions are good law, but they offer no guidance in interpreting the notice of appeal here.^{[ 5 ]}

2. Leave for Respondent Church to File Second Amended Complaint

After denying on December 18 Haan's special motion to strike respondent church's first amended complaint, the court granted the church leave to file a second amended complaint. Appellants contend the court erred. The purported rule they contend the court violated is the following:

"Once the Appellants filed their original anti-SLAPP motion to the First Amended Complaint, the Respondents could not seek leave of court to file a Second Amended Complaint until the expiration of the time period within which to appeal the denial of the anti-SLAPP motion." (Italics added.)

According to appellants, their time to file an appeal from the December 18 order ran until June 18, 2008.

The authorities appellants cite do not support them. Those authorities establish that when the losing side on a SLAPP motion takes an appeal, the plaintiff cannot circumvent the defendant's right to appellate review of the trial court's ruling by filing an amended complaint. (See Roberts v. Los Angeles County Bar Assn., supra, 105 Cal.App.4th at pp. 612-613; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074.) Here, appellants did not seek review of the December 18 order, and therefore their authorities do not apply. Moreover, appellants cannot argue that respondent church hastily filed its second amended complaint in a race to extinguish appellants' right to appeal from the order denying Haan's motion to strike. The court denied Haan's motion on December 18, at which time it stated it would allow respondent church until late January to file an amended complaint. Appellants did not then object that the court's granting leave to amend the complaint might interfere with their right to seek appellate review of the December 18 order. And when respondent church filed its second amended complaint toward the end of January, appellants did not object that the amended pleading thwarted their right to appellate review. Appellants' contention that the court denied them their right to appeal from the December 18 order merits no further discussion.

3. Striking of Haan's Second Anti-SLAPP Motion

On January 28, 2008, respondent church filed its second amended complaint. In response, Haan filed a demurrer and, a few weeks later, a second special motion to strike. The hearing on the motion to strike was set for April 22. At the hearing on Haan's demurrer on April 8, the court explained it could not rule on the demurrer while Haan's motion to strike was pending. Looking beyond the form of that motion to its substance, the court declared the motion was a thinly disguised and substantively unsupported motion for reconsideration that violated statutory rules for moving for reconsideration. The previous December, the court had denied Haan's first special motion to strike, finding the litigation privilege did not protect Haan from the allegations in respondent's complaint. Concluding both the December and pending motions to strike rested on the same assertion of the litigation privilege, the court reiterated that the anti-SLAPP statute did not apply to a client, such as respondent church, who sued its former attorney (Haan) for breach of fiduciary duty and legal malpractice. The court told Haan, "They're [plaintiffs] alleging that [Haan] represented them and had a conflict of interest and acted adversely to their own clients and facilitated stealing money from their own clients. That's not subject to SLAPP. That's subject to legal malpractice and breach of fiduciary duty . . . ."

Strict procedural requirements apply to a motion for reconsideration, among them the need to show new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subds. (a)-(b).) A moving party's failure to comply with those procedural requirements deprives the court of jurisdiction to hear the motion. (Id., subd. (e).) Finding the motion to strike fatally flawed, the court told Haan that postponing a ruling until the scheduled hearing of April 22 served no purpose. The court explained: "I don't think you're understanding me, but I can't make it any more explicitly at this point. [¶] I don't know what you would do differently if you argued the SLAPP motion on April 22nd because your moving papers are what they are. They say what they say." On its own motion the court thus struck Haan's motion to strike.

Appellants assert the court erred. First, they contend the court's order is a nullity because the second amended complaint was, in their view, "never legally operative" since respondent church had filed it during the purported six-month window in which appellants claimed a right to appeal from denial of Haan's first anti-SLAPP motion to strike. Appellants write: "Since the Second Amended Complaint was never legally operative, the trial court's sua sponte order striking the Second Anti-SLAPP motion was void." Because appellants cite no authority to support their contention, it fails. (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 727; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)

Appellants also contend the court's April 8 order denied Haan due process because the court refused Haan an opportunity to be heard. Not so. The special motion to strike was Haan's motion. As the moving party, his job was to put in his moving papers his contentions, arguments, and legal authority. The court let Haan argue his motion at the hearing. (Cf. Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 261-262 [summary judgment reversed where trial court entered judgment solely on papers and denied opposing party hearing altogether despite statutory right to a hearing].) The court noted, however, that Haan's oral presentation added nothing to his written motion and Haan did not argue to the contrary. Moreover, appellants have not suggested on appeal what, if anything, Haan might have argued on April 22 — the scheduled hearing date — that he did not argue on April 8, the day the court heard the motion. Appellants are therefore mistaken in describing the court's ruling against Haan on April 8 as an unfair "`bolt from the blue out of the trial judge's chambers.'" (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286 [likening an order where no notice and opportunity to be heard to a "bolt from the blue"].)

Finally, appellants contend the court erred in treating Haan's motion as one for reconsideration. They note that a defendant may renew its special motion to strike when the plaintiff amends its complaint. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 835.) A motion for reconsideration, in contrast, involves a "subsequent application for the same order." (Code Civ. Proc., § 1008, subd. (b).) Haan's first special motion to strike sought an order to strike respondent church's first amended complaint; his second special motion to strike was against the second amended complaint, a different pleading from the first, and thus arguably not a motion for reconsideration.

We conclude that even if the court erred in labeling Haan's second special motion to strike as a motion for reconsideration, appellants fail to show the court's ruling denying the motion was substantively wrong. The court denied Haan's first motion to strike because respondent's first amended complaint claimed malpractice and breach of fiduciary duty by Haan and the anti-SLAPP statute does not apply to such claims. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629-631.) Respondent's second amended complaint elevated those claims against Haan to explicit causes of action. And, indeed, appellants complain that the court's April 8 order denying Haan's second special motion to strike the second amended complaint "reiterated the rationale for denying Appellants' anti-SLAPP motion back on December 18, 2007" against the first amended complaint. Appellants do not show that the court misapplied the exception to anti-SLAPP motions for malpractice and breach of fiduciary duty in either its December ruling involving the first amended complaint or its April ruling involving the second amended complaint. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [substance of complaint's allegations about defendant's activities, not their label, governs analysis of SLAPP motion to dismiss]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671.) Accordingly, appellants show no reversible error.

4. Striking Second Amended Cross-Complaint

Appellants' second amended cross-complaint added respondent church's attorney Henry Lee as a cross-defendant. Arguing the cross-complaint was a SLAPP against him for his representation of the other cross-defendants, Lee specially moved to strike the cross-complaint. The court denied Lee's motion. Although the hearing was reported, appellants did not include the reporter's transcript in the record and the court's minute order does not reveal the court's reasoning.^{[ 6 ]} When the court denied Lee's motion to strike, the court issued an order for appellants to show cause why the court should not strike their cross-complaint for failing to satisfy the statutory pleading requirements governing their allegations against attorney Lee. Under those requirements, found at Civil Code section 1714.10, subdivision (a), a plaintiff must receive a court's permission to allege a cause of action against an attorney for civil conspiracy with the attorney's client, but appellants had not sought the court's permission here to add Lee as a cross-defendant.^{[ 7 ]} Following the hearing three weeks later on the order to show cause, the court struck from appellants' second amended cross-complaint all allegations against Lee. In striking the allegations, the court granted appellants leave to file papers complying with section 1714.10.

Appellants assert the court committed several errors. First, appellants seem to suggest Civil Code section 1714.10 applies only to causes of action labeled "conspiracy" and note they styled none of their claims as actions for conspiracy. Appellants' suggestion is incorrect. The substance of the allegations, not their label, governs whether section 1714.10 applies. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.) The statute applies to allegations that seek to make an attorney civilly liable with the attorney's client for the plaintiff's alleged injuries.

Appellants contend the court erred in striking the cross-complaint's allegations after Lee had waived his right to seek such relief. Appellants correctly note that an attorney can waive the plaintiff's failure to comply with Civil Code section 1714.10 by not timely raising the plaintiff's omission. (Civ. Code. § 1714.10, subd. (b) ["The defense shall be raised by the attorney charged with civil conspiracy upon that attorney's first appearance by demurrer, motion to strike, or such other motion or application as may be appropriate. Failure to timely raise the defense shall constitute a waiver thereof"].) According to appellants, Lee should have raised their failure to comply with the statute during what they mischaracterize as Lee's first appearance. Appellants write:

"[O]n March 4, 2008, the Lee Cross Defendants filed their answer to the Second Amended Cross-Complaint. This was more than 30 days after service and filing of the Second Amended Cross-Complaint. That was the precise moment to raise this defense. This constituted the first appearance. That response denied the allegations of the cross-complaint and asserted affirmative defenses on behalf of all of the other cross-defendants. However, there was no response on behalf of the Lee Cross-Defendants who were named as a cross defendant as were all of the other cross defendants."

Appellants did not include in the record the March 4 answer, thereby violating a fundamental rule of appellate practice prohibiting references to matters outside the record. Their failure prevents us from reviewing the answer to confirm their description of it. Respondent church directs our attention, however, to the clerk's filing docket in the record. The docket entry for the March 4 answer shows that attorney Lee filed the March 4 answer in his representative capacity on behalf of all cross-defendants and that Lee was not among the answering cross-defendants. Appellants do not acknowledge their mischaracterization of the record, passing on it as if it never happened. Instead, appellants shift ground in their reply brief without admitting they are doing so by arguing it does not matter whether Lee joined the March 4 answer because he could have but did not and that is how he waived the defense. Appellants write:

"Respondent's brief argues that although a collective Answer was filed on March 4, 2008 by the cross defendants' in response to the [second amended cross-complaint], that answer does not include the name of Mr. Lee, since Mr. Lee's name was (quietly) omitted as an answering party. In a footnote, Respondent asks this Court to note that if you study the names closely, Mr. Lee's name is not present on the list of answering cross-defendants. . . . Thus, even if Mr. Lee's responsive pleading was due along with the other cross-defendants, Respondent reasons that since Lee technically did not personally `appear' on March 4, 2008, the Answer on behalf of all the cross-defendants cannot be faulted for failing to `raise the defense' of § 1714.10, as required by the statute. Nevertheless, LEE certainly had the opportunity to `raise the defense' in the Answer of March 4, 2008 . . . ." (Underscore omitted, italics added.)

Instead of appellants' characterizations, we turn to the court's description of the record. The court found Lee appeared on March 18 when he filed his special motion to strike the second amended cross-complaint as a SLAPP suit. The court found this appearance was Lee's first as a cross-defendant, stating "[A]s far as I can tell from the pleadings, ever since [Lee] was sued, the first thing that came up was the SLAPP motion. He hasn't answered or demurred yet." Appellants cite no authority that Lee's filing an anti-SLAPP motion was a "first appearance" that extinguished his right to move to strike the cross-complaint under Civil Code section 1714.10. Indeed, decisions show that motions under section 1714.10 and the anti-SLAPP statute are independent matters that a defendant can file separately from each other. (See, e.g., Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 668, fn. 5.)

Appellants also contend the court erred because Civil Code section 1714.10 recognizes two exceptions to its requirement that a plaintiff receive a court's permission before filing conspiracy allegations against an attorney. The first exception rests on the existence of an "independent legal duty" from the attorney to the plaintiff.^{[ 8 ]} The independent duty presupposes conduct by an attorney separate from the attorney's role as the client's agent; if the attorney acted solely as the client's agent, no liability attaches to the attorney. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc., supra, 131 Cal.App.4th at p. 818; Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 394.) The second exception arises when the attorney provides more than legal services and gains more financially than legal fees.^{[ 9 ]} (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc., supra, at p. 834.)

Appellants' cross-complaint does not spell out what, if anything, Lee did that was separate from his work as the attorney for the other cross-defendants. The cross-complaint treats all the cross-defendants, including Lee, as a single group in its litany of allegedly actionable conduct. The cross-complaint alleges the cross-defendants misled church members about the eligibility of church elders to continue their official duties, misidentified the true pastor, interfered with the church's receipt of members' weekly contributions, and improperly accessed the church's bank account. To the extent any of those allegations apply particularly to Lee — a level of detail missing from the cross-complaint — they are not necessarily inconsistent with Lee's acting solely as attorney for the other cross-defendants. Moreover, the allegations are silent about Lee's receiving any financial gain beyond his professional fees.

Appellants claim the court acknowledged their cross-complaint alleged Lee did more than solely act as attorney for the other cross-defendants. Appellants write: "Even the Trial Court's April 16, 2008 tentative ruling recognized that the allegations come within the purview of the exceptions to the prefiling requirement . . . ." In support, appellants purport to quote the court's tentative ruling of April 16, but without a record citation and without including the ruling in the record. Moreover, appellants do not show that the court adopted its tentative ruling as its actual order. Accordingly, we pass on their contention.^{[ 10 ]}

Finally, appellants appear to have misconstrued the court's order striking their allegations against Lee in their second amended cross-complaint. Contrary to what appellants seem to state, the court did not strike the entire complaint; it struck only the allegations against Lee. Appellants' puzzlement on the point seems to arise from confusing the court's minute order issuing the order to show cause with the court's ruling following the hearing on the order to show cause. Appellants' opening brief initially states the order to show cause was directed only toward the court's contemplation of striking some portions of the cross-complaint, but the opening brief then states, hinting at impropriety by the court, that the court struck the entire cross-complaint. The record shows the opposite. The order to show cause contemplated striking the entire complaint, but the ruling after the hearing struck only the paragraphs containing allegations against attorney Lee. Whatever the extent, or source, of appellants' confusion, authorities prohibit striking an entire complaint solely because it contains a cause of action that the plaintiff should not have alleged without first complying with Civil Code section 1714.10. (Alden v. Hindin (2003) 110 Cal.App.4th 1502, 1507-1508.) Those authorities do not, however, prohibit a court from excising allegations that violate the statute, which is what the court did here.

DISPOSITION

The court's orders are affirmed. Respondent to recover its costs on appeal.

WE CONCUR:

BIGELOW, J.

BAUER, J.^{[ 11 ]}

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