Filed 9/3/26 Patel v. Vaghashia CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
VIKPULKUMAR PATEL, B346281
Plaintiff and Respondent, (Los Angeles County Super. Ct. No.
v. EC064357)
GOVIND VAGHASHIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Ashfaq G. Chowdhury, Judge. Affirmed.
Lal Harris & Edwards Law Group, Hari S. Lal, and Jack W. Rippy for Defendant and Appellant.
Law Office of Mandeep S. Rupal, Mandeep S. Rupal, and Alex W. Richter for Plaintiff and Respondent.
Defendant and appellant Govind Vaghashia (Defendant)
prevailed on a Code of Civil Procedure section 425.16 motion to strike abuse of process claims in a complaint filed by Vipulkumar Patel (Plaintiff).1 Defendant later moved for an anti-SLAPP attorney fees award in excess of $230,000, but the trial court denied the motion because it found two prior settlement agreements, taken together, barred Defendant from recovering attorney fees. We are asked to decide an issue Defendant did not raise in the trial court: whether Defendant could and did bargain away his right to seek attorney fees under the anti-SLAPP statute.
I. BACKGROUND
In August 2015, Plaintiff filed suit against two of his former employers, Defendant and his brother Prashant Vaghashia (Prashant), alleging wage and hour violations. Plaintiff’s lawsuit became part of a series of legal proceedings in state and federal court involving Defendant, Prashant, members of their families, related entities, and other parties.2 Plaintiff ultimately filed a second amended complaint (the operative pleading) that included (among other things) two new claims predicated on allegations Defendant directed a subordinate to file a false police report: harassment/retaliation and abuse of process (respectively, the ninth and tenth causes of
1 Undesignated statutory references that follow are to the Code of Civil Procedure. 2 Defendant and Prashant collaborated on various business and real estate ventures before their relationship deteriorated and litigation ensued.
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action). Defendant then moved to strike these two causes of action pursuant to the anti-SLAPP statute.
The trial court denied the motion as to the harassment/retaliation cause of action but granted the motion as to the abuse of process cause of action and struck that claim. In an unpublished decision, a different panel of this court reversed the trial court’s decision on the harassment/retaliation cause of action, held that the conduct at issue was protected activity, and remanded the matter for the trial court to determine in the first instance whether Plaintiff could demonstrate a probability of prevailing on the merits of his harassment/retaliation claim. (Patel v. Vaghashia (March 26, 2024, B316395) [nonpub. opn.] (Patel I).) Patel I also awarded Defendant his costs on appeal.
In June 2022, after the anti-SLAPP motion had been heard but while the appeal in Patel I was still pending, Defendant and his brother Prashant agreed in writing to settle other pending litigation by releasing all claims and dismissing all actions (the 2022 Agreement). In partial exchange for a settlement payment of $35 million, Prashant agreed in paragraph 10 to “indemnify, defend, pay the attorneys’ fees and costs for, and hold harmless [Defendant] from and against any and all claims, debts, liabilities, demands, damages[,] or obligations of every nature whatsoever, in law or in equity, that are based upon or arise out of [Plaintiff’s] Case.” Paragraph 10 provided further: “To the extent the cooperation of any of the Govind Parties is needed for the defense of [Plaintiff’s] Case, the Govind Parties shall reasonably cooperate, including providing documents and/or their availability to testify and/or execute settlement documents. The Prashant Parties will choose counsel for the Govind Parties.”
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Paragraph 31 of the 2022 Agreement provided that the parties could not assign any of their “released claims” to any other party.3 Plaintiff was not a signatory to the 2022 Agreement.4 Within days of the remittitur in Patel I, Defendant moved to recover his attorney fees. He maintained that because the trial court had struck the tenth cause of action and because Patel I had awarded him his costs on appeal, he was “apparently” the prevailing party under the anti-SLAPP statute and thereby entitled to his attorney fees. Defendant sought to recover a total of $234,664.30 in fees for legal work related to the anti-SLAPP motion and the related appeal.
Before Defendant’s attorney fee motion was heard, and pursuant to the stipulation in the 2022 Agreement that Prashant would indemnify and defend Defendant in the lawsuit filed by Plaintiff, Prashant settled Plaintiff’s lawsuit pursuant to a written settlement agreement executed in 2024 (the 2024 Agreement). The 2024 Agreement was signed by Plaintiff and Prashant, but not Defendant, and it repeatedly made reference to
3 In pertinent part, paragraph 31 provides as follows: “The Parties hereby warrant and represent that they are the owners of all the released claims, and that they have not assigned or transferred, or attempted or purported to assign or transfer, any of the claims released herein to any other person or entity.” 4 Defendant, after first successfully moving to enforce the 2022 Agreement, later sought to vacate it. The trial court in that proceeding ruled Defendant was judicially estopped from vacating the agreement and a different division of this court affirmed. (Vaghashia v. Vaghashia (2024) 106 Cal.App.5th 188, 191.)
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the earlier 2022 Agreement between Prashant and Defendant. Under the terms of the 2024 Agreement, Plaintiff agreed to dismiss his lawsuit against Defendant and Prashant in exchange for $500,000—though that contemplated payment was made contingent on Prashant receiving the money he was due under the 2022 Agreement. The settlement agreement further provided that the parties would “bear their own attorney’s fees and costs.” Upon execution of the 2024 Agreement, Defendant did not contest the settlement of Plaintiff’s lawsuit or Prashant’s authority to enter into the 2024 Agreement.
Pursuant to the 2024 Agreement, Plaintiff filed, and the trial court entered, a request for dismissal with prejudice of the entire action. The trial court also vacated the upcoming hearing date on Defendant’s earlier-filed motion for anti-SLAPP attorney fees.
Defendant, however, filed another motion for anti-SLAPP attorney fees that sought the same amount of fees as before. He continued to argue he was the prevailing party on the anti- SLAPP motion because the trial court struck the abuse of process cause of action and he “prevailed on the appeal with an award of costs” as to the harassment/retaliation claim.
Plaintiff opposed Defendant’s renewed motion for attorney fees. Plaintiff argued the 2024 Agreement made the parties each responsible for their own attorney fees. Plaintiff acknowledged Defendant did not sign the 2024 Agreement but he argued Defendant was nonetheless bound by that agreement because Defendant, in the 2022 Agreement, gave “all rights and liabilities with respect to the instant lawsuit to Prashant . . . , including the right to settle the instant lawsuit.” In addition, Plaintiff contended Defendant’s fee request was excessive because it
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included “numerous” time entries for work unrelated to the anti- SLAPP motion.
The trial court held a hearing on Defendant’s renewed motion for anti-SLAPP attorney fees in December 2024, but the record includes no reporter’s transcript or settled statement memorializing the proceedings. A minute order issued in connection with the hearing states the trial court denied the motion and found, pursuant to the 2022 and 2024 Agreements, that Defendant was “contractually barred” from obtaining an award of attorney fees. Specifically, the court’s minute order states Defendant in the 2022 Agreement had “assigned” his “rights and liabilities” in Plaintiff’s lawsuit to Prashant and Prashant had validly settled Plaintiff’s lawsuit with an attorney fee waiver in the 2024 Agreement.5 Defendant moved for reconsideration of the trial court’s ruling and maintained reconsideration was required because Plaintiff’s opposition, which raised new facts (the designation of Prashant to handle defense of Plaintiff’s lawsuit in paragraph 10 of the 2022 Agreement), was never served on Defendant and he should be allowed to file a reply. Without addressing the language of paragraph 10 of the 2022 Agreement, Defendant argued that because Plaintiff was neither a party to nor a third- party beneficiary of the 2022 Agreement, Plaintiff had no right to enforce that agreement. The trial court agreed to grant reconsideration and vacated its earlier order denying fees so that Defendant could file a reply to Plaintiff’s opposition papers.
5 In its minute order, the trial court also expressed “grave concerns” about representations made by Defendant’s counsel that Plaintiff did not oppose the fee motion.
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Defendant then filed the contemplated reply brief and argued he was not bound by the attorney fee waiver provision of the 2024 Agreement because he was not a party to or a third- party beneficiary of that agreement. Although the 2022 Agreement was a basis for both Plaintiff’s opposition to the fee motion and the vacated ruling on that motion by the trial court, Defendant did not discuss the terms of that agreement— including paragraph 10 making Prashant responsible for his defense—or the effect of that agreement on his attorney fee claim.
With Defendant’s reply on file, the trial court held another attorney fees hearing (for which we again have no reporter’s transcript or suitable substitute) and denied Defendant’s motion for anti-SLAPP attorney fees. A minute order issued in connection with the hearing explains the court again relied on the 2022 and 2024 Agreements to find Defendant was “contractually barred from receiving an award of attorney’s fees” as a result of the “assignment” of Defendant’s rights and liabilities in Plaintiff’s lawsuit to Prashant, who settled Plaintiff’s lawsuit with an agreement that each party bear their own attorney fees. Elaborating, the court’s minute order noted the 2022 Agreement had been “upheld” on appeal (in Vaghashia, supra, 106 Cal.App.5th 188) and expressly authorized Prashant to resolve Plaintiff’s lawsuit: “[W]ith the authority given [to Prashant] in the . . . 2022 . . . Agreement, [Prashant] negotiated a
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resolution to this matter, including the provisions regarding ‘each party to bear their own attorney’s fees and costs.’”6
II. DISCUSSION
Defendant’s principal argument on appeal is that paragraph 10 of the 2022 Agreement was not an express assignment of his right to seek attorney fees as a prevailing party in Plaintiff’s lawsuit. Defendant forfeited this argument by failing to advance it in trial court, and regardless, the argument fails on the merits. The express terms of the 2022 Agreement make Prashant responsible for handling the defense of Plaintiff’s lawsuit, give Prashant authority to choose counsel who would handle the defense, and contemplate that the lawsuit would be settled. Prashant was therefore properly empowered to settle the lawsuit and did so on terms that preclude an award of attorney fees. Even assuming Defendant were right that the 2022 Agreement must constitute a legal assignment of his rights in connection with Plaintiff’s lawsuit, the law does not require an
6 The trial court’s minute order also identified other independent grounds warranting denial of Defendant’s fees motion. First, the court observed that the 2022 Agreement authorized Prashant to choose Defendant’s counsel in Plaintiff’s lawsuit and “as far as the Court is aware,” defense counsel was not “chosen by [Prashant] to represent anyone in this action.” Second, the court found the amount of fees requested by Defendant was “simply not credible.” Third, the court found the motion was “deficient on its face,” because the billing statements “made it unclear whether the work done was on this case or on the other cases in the constellation of cases involving [D]efendant.”
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assignment to be express; only a manifestation of an intent to transfer a party’s rights is required and the trial court did not err in finding such intent was shown.7
A. The Argument Challenging the 2022 Agreement’s Designation of Prashant to Handle Defense of Plaintiff’s Lawsuit Is Forfeited Because It Was Not Made in the Trial Court
“Appellate courts generally will not consider matters presented for the first time on appeal. [Citations.]” (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143.) Such arguments are generally deemed forfeited. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226; see also Vallejo Police Officers Assn. v. City of Vallejo (2017) 15 Cal.App.5th 601, 621 [explaining that “‘theories not raised in the trial court cannot be asserted for the first time on appeal’” because “‘it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal’”].)
The issue of whether Defendant in the 2022 Agreement gave Prashant the right to settle Plaintiff’s lawsuit under any terms, including an attorney fee waiver, was raised by Plaintiff in
7 In light of our rationale for resolving the appeal, we have no need to discuss the remaining arguments Defendant makes on appeal, i.e., that the trial court should not have denied his fees request in its entirety because the anti-SLAPP statute makes an award of fees “mandatory, not discretionary”; that the court improperly questioned his attorney’s authority to represent Defendant; and that Plaintiff purportedly failed to make “any specific objection” to his fees request.
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his opposition to the fee motion and accepted by the trial court in its initial (and later vacated) ruling. Defendant nonetheless did not discuss the meaning and effect of paragraph 10 of the 2022 Agreement in his motion for reconsideration or in his reply brief after reconsideration was granted. (Defendant instead addressed only whether Plaintiff was a party to or a third-party beneficiary of the settlement agreements.) That means the issue is forfeited.
B. Prashant Had Authority to Settle Plaintiff’s Lawsuit and the Settlement Precludes an Award of Attorney Fees
Even putting aside the forfeiture, Defendant’s argument challenging the trial court’s settlement agreements-based rationale for denying fees fails on the merits. Defendant is focused on whether the 2022 Agreement effected a formal “assignment” of rights (perhaps owing to the trial court’s diction in its minute order). That, however, introduces an unnecessary legal theory into the analysis. The question is not whether there has been an assignment of rights per se, the question is whether the 2022 Agreement made Prashant responsible for defense of Plaintiff’s lawsuit and granted him authority to settle that lawsuit. It obviously did.
Paragraph 10 designated Prashant as the person who would “defend” against Plaintiff’s lawsuit. The same paragraph gave Prashant authority to choose the attorney who would handle the defense. And perhaps most important, the same paragraph obligated Defendant to reasonably cooperate in “execut[ing] settlement documents,” but only “[t]o the extent the cooperation of any of the Govind Parties is needed.” That gave Prashant all the authority he needed to settle Plaintiff’s lawsuit, and he did so
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pursuant to an agreement (that Defendant did not contemporaneously contest) making all parties responsible for their own attorney fees.8 Furthermore, even if Defendant were right that the question of an entitlement to fees does turn on the legal concept of an “assignment,” Defendant is still wrong that the 2022 Agreement cannot be such an assignment. Defendant believes, for instance, that paragraph 31 of the 2022 Agreement “conclusively disproves” the 2022 Agreement effected an assignment, but the anti-assignment provision of that paragraph is expressly limited to the claims Defendant, Prashant, their families, and their related entities had against each other; it does not bear on the question of whether Defendant assigned away his rights to anti-SLAPP attorney fees from Plaintiff. Defendant also believes that “[u]nder settled California law, an assignment must be express, clear, and unequivocal, and ‘will not be presumed’ from silence or implication.” That is just wrong on the law. “[A]n effective assignment . . . may be expressed orally as well as in writing; may be the product of inference; and where the parties to a transaction . . . by their conduct indicate an intention to [make an assignment], the courts will imply an assignment thereof. In making such a determination, substance and not form controls.”
8 Tellingly, Defendant to this day still does not contest the 2024 Agreement insofar as it resulted in the dismissal with prejudice of Plaintiff’s claims against him. He just wants the sweet without the bitter (see generally Bailey v. United States (2013) 568 U.S. 186, 206 (conc. opn. of Scalia, J.)): an invalidation of the agreement only insofar as it precludes him from recouping anti-SLAPP attorney fees. That selective approach to the agreement is untenable.
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(Greco v. Oregon Mut. Fire Ins. Co. (1961) 191 Cal.App.2d 674, 683, internal citations omitted; accord, Sunburst Bank v. Executive Life Ins. Co. (1994) 24 Cal.App.4th 1156, 1164; McCown v. Spencer (1970) 8 Cal.App.3d 216, 225.) Pursuant to the settlement agreements and his conduct, Defendant showed he assigned his rights in connection with Plaintiff’s lawsuit— including any settlement thereof—to Prashant.
Defendant additionally maintains a prevailing defendant on an anti-SLAPP motion cannot bargain away his or her statutory right to attorney fees unless he or she does so expressly. He repeatedly cites Navellier v. Sletten (2003) 106 Cal.App.4th 763, 775, for the proposition that “‘any waiver of anti-SLAPP rights must be “clear and unmistakable.”’” The quoted language does not appear anywhere in Navellier and that opinion does not support the proposition for which he cites it.9 Insofar as Defendant contends a party can never bargain away an entitlement to anti-SLAPP fees as part of a global settlement of litigation because doing so would violate Civil Code section 3513 (“a law established for a public reason cannot be contravened by a private agreement”), the argument is unavailing. The 2024 Agreement’s stipulation that all parties would bear their own attorney fees and costs does not “contravene” the anti-SLAPP statute. At most, the 2024 Agreement incorporated the prospect of an award for some amount of anti-SLAPP fees as part of the
9 Defendant also purports to quote Ketchum v. Moses (2001)
24 Cal.4th 1122 as stating an anti-SLAPP fee award “is mandatory and ‘not subject to equitable defenses or private contractual limitations.’” Again, the purportedly quoted language appears nowhere in the Ketchum opinion.
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calculus of mutually agreeable terms that would end the litigation.
DISPOSITION
The trial court’s attorney fees order is affirmed. Plaintiff is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM (D.), J.