Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC376057, Ruth Ann Kwan, Judge.
Law Offices of Tabone and Derek L. Tabone for Plaintiffs and Appellants.
P.K. Schrieffer, Paul K. Schrieffer, Michelle McCoy Wolfe, Alfred J. Shine, Jr., and Mitchell J. Freedman for Defendants and Respondents.
ASHMANN-GERST, J.
Appellants Takui Aivazian (Aivazian) and Atna Enterprises, Inc. (Atna) sued respondents Robert Thompson and Sharon Thompson (collectively the Thompsons) for conduct allegedly designed to drive Aivazian and Atna out of their restaurant and banquet hall business. Because the trial court granted the Thompsons’ anti-SLAPP motion, Aivazian and Atna now appeal.
We find no error and affirm.
Because this appeal involves an anti-SLAPP motion, Aivazian and Atna can prevail if they show that Code of Civil Procedure section 425.16 does not apply or they demonstrate a likelihood of success on the merits by presenting a prima facie case. (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19.) The facts relevant to the likelihood of success are stated in a light favorable to Aivazian and Atna.
Aivazian, her husband and his business partner, Mr. Migroyan, are Armenian. Atna was formed in 2004 to purchase and operate a business known as The Bric Montrose. The business had been in the same location since 1966 where it operated as a banquet hall, bar and restaurant with a full liquor license. While Aivazian’s husband and Mr. Migroyan were in the process of purchasing The Bric Montrose facility from Viorica Lung (Lung), Aivazian visited The Bric Montrose and first met Sharon Thompson (Sharon). She wanted to know who was buying the business. When she did not get an answer from Lung, Sharon stated that it better not be Armenians because she did not like Armenians. She also stated that if Armenians purchased The Bric Montrose, she would put them out of business.
Aivazian owns and manages Atna. She declared that she purchased all of Mr. Migroyan’s stock.
The Bric Montrose was located at 2833 Honolulu Avenue. After making the purchase, Aivazian’s husband and Mr. Migroyan wanted to remodel and also expand into an empty space at 2837 Honolulu Avenue. Atna wrote to the City of Glendale’s zoning administrator to inquire about any restrictions. Edith Fuentes (Fuentes), the zoning administrator, responded by letter, stating: The property at 2833 Honolulu Avenue was zoned C1, Neighborhood Commercial Zone. On October 27, 1983, Conditional Use Permit case No. 7501-CU (conditional use permit) was granted with conditions to allow the continued serving of alcoholic beverages at the existing full service restaurant. In addition, a zoning use certificate was issued on February 26, 2002, for a full service restaurant, banquet hall and bar. The latest use of 2837 Honolulu Avenue was as a tutorial school and general office. Condition No. 5 of the conditional use permit stated that it would terminate upon a major change in the type of services offered to the public as determined by the zoning administrator. Based on these facts and the conditional use permit, Fuentes concluded that the services Atna proposed to offer would not constitute a major change. Atna was told to contact the zoning planners to discuss the possible need for additional parking.
Atna entered into a 16-year lease for 2837 Honolulu Avenue and hired an architect to draw and submit plans for the remodel. While this was occurring, The Bric Montrose remained open as a restaurant and banquet hall. A building permit was issue on October 2, 2005. The business closed and construction began. Final inspection and approval occurred on May 23, 2006. Once completed, the facility reopened as the Montrose Collection Restaurant and Banquet Hall (Montrose) and Atna obtained a parking reduction permit so it would not have to provide or acquire the use of nine additional parking spaces for its customers.
Sharon repeatedly made dinner reservations but never appeared. Montrose stopped taking her reservations. Aivazian saw Sharon photographing and videotaping Montrose’s customers, particularly during private parties. The Thompsons complained to the police about illegal parking even though Montrose hired valets for events and did not have a parking problem. The Thompsons also complained to the police that Montrose was a public disturbance. Nobody else complained, and Montrose always kept noise inside the restaurant. Further, the Thompsons complained to the police that Montrose was cooking outside in violation of the Glendale Municipal Code. Montrose never cooked outside.
The Thompsons met with Nancy Rabensteine (Rabensteine), the director of Robin’s Nest Pre-School located at 2912 Honolulu Avenue and informed her that Montrose was operating illegally by having unlawful private parties. They also told Rabensteine that if she provided Montrose with access to the Robin’s Nest Pre-School parking lot, she would be responsible for the consequences. In addition, they told Rabensteine that if she patronized Montrose, such as for a school party, it would be illegal and the City of Glendale would prosecute her.
The City of Glendale told Montrose to stop holding private parties and banquets. At a zoning hearing, Fuentes revoked the parking reduction permit due to Montrose’s alleged failure to comply with the condition that banquet use only be incidental. Atna appealed to the Board of Zoning Appeals. When Atna lost, it appealed to the City Council of Glendale. No action was taken, so Atna filed a petition for writ of mandate. Meanwhile, Montrose obtained offsite parking and continued to operate.
According to the Thompsons, Montrose was subject to a local ordinance prohibiting it from holding banquets for private parties in more than 30 percent of a restaurant’s space. They contend that the City of Glendale determined that Montrose violated an ordinance and, as a result, revoked certain parking and use permits. The Thompsons did not cite to the record. In their reply brief, Aivazian and Atna state that the hearing involved the revocation of their zoning use certificate as well as their parking reduction permit.
Aivazian and Atna sued the Thompsons for intentional interference with prospective economic advantage, slander, intentional infliction of emotional distress and injunction based on the following allegations. The Thompsons have attempted to damage Montrose’s reputation and drive away its customers. Among other actions, the Thompsons are guilty of making false reports to the police for violations of the Glendale Municipal Code; repeatedly calling to make reservations for dinner and not showing up in order to cause Montrose to incur expenses in anticipation of business; making false statements that Montrose is being operated illegally and will be shut down; videotaping and photographing all persons coming and going from Montrose in an attempt to invade their privacy and drive them away; and threatening local business owners with civil or criminal prosecution if they patronize Montrose or assist it by providing parking spaces. The Thompsons’ action caused a loss of patronage, an increase in expenses, and harm to Aivazian’s and Atna’s reputations.
The Thompsons demurred to the complaint and their demurrer was sustained with leave to amend. Aivazian and Atna filed a first amended complaint on January 3, 2008. Soon after, the Thompsons filed an anti-SLAPP motion pursuant to section 425.16. At the ensuing hearing, the trial court issued a tentative ruling stating that the allegations fell within the protection of section 425.16. The false statements and threats were protected under Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (Briggs) and Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 (Paul) because they were made in connection with the City of Glendale’s investigation of a zoning violation. Based on Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1513 (Chabak), the reports of crimes to the police were also protected. The videotaping and photographing were protected because the Thompsons were providing evidence to a code enforcement officer of the City of Glendale. In support, the trial court cited Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600 (Gallanis-Politis). Again citing Gallanis-Politis, the trial court ruled that the no show reservations were protected. Finally, the trial court indicated that Aivazian and Atna failed to establish a probability of prevailing on the merits because they did not present any evidence to support their claims. In particular, Aivazian and Atna failed to offer any evidence establishing the falsity of statements that Montrose was operating illegally and was going to be shut down. After reviewing the tentative ruling, Aivazian and Atna submitted on their papers.
We accept the representation of Aivazian and Atna that the demurrer was sustained with leave to amend. As they acknowledge, the appellate record does not contain the trial court’s ruling.
We accept the representation of Aivazian and Atna that they filed a first amended complaint on January 3, 2008. This pleading is not contained in the clerk’s transcript. In their opening brief, they purport to cite to the first amended complaint by referencing “AR 1-10.” The meaning of this reference is unclear. The clerk’s transcript is the only record we have been provided that contains court documents. Pages 1 through 10 of the clerk’s transcript contain the Los Angeles Superior Court civil case summary and the original complaint. We note the civil case summary indicates that a first amended complaint was in fact filed. According to Aivazian and Atna, the first amended complaint alleges a claim for trade libel.
The Thompsons’ anti-SLAPP motion was granted and a judgment of dismissal was entered in their favor.
This timely appeal followed.
DISCUSSION
Aivazian and Atna contend that none of their allegations fall within the scope of section 425.16. In the alternative, they contend they demonstrated a likelihood of prevailing on the merits. We disagree.
1. The anti-SLAPP statute; standard of review.
“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition... shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) When ruling, the trial court must first decide whether the defendants have demonstrated that their alleged wrongful acts involved their constitutional rights of petition or free speech in connection with a public issue. If the defendants meet this burden, the trial court must then determine whether the plaintiffs have demonstrated that there is a probability that they will prevail on their claims. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.) An appellate court reviews the trial court’s ruling de novo. (Ibid.)
2. Applicability of section 425.16 to the allegations.
This appeal pertains to the first amended complaint. Because it is not in the appellate record, the record is technically inadequate for review. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Nonetheless, the Thompsons ignore this omission, so we presume the first amended complaint tracks the original complaint and analyze the alleged conduct accordingly.
a. No show reservations.
The trial court’s tentative ruling stated that the no show reservations came within the ambit of section 425.16 based on Gallanis-Politis.
According to Aivazian and Atna, none of the Thompsons’ speech is protected by section 425.16 because it was designed to destroy Montrose and did not arise from an activity in furtherance of their right of free speech or petition. However, Aivazian and Atna do not mention or discuss Gallanis-Politis is their opening brief. The only time Aivazian and Atna mention Gallanis-Politis is in their reply brief, and only in connection with the allegation that the Thompsons videotaped and photographed people coming and going from Montrose. Nor do Aivazian and Atna specifically argue that the no show reservations fall outside the scope of section 425.16. Instead, they provided generalized argument. We deem this portion of their appeal waived. It is the duty of an appellant, not the courts, “‘by argument and the citation of authorities to show that the claimed error exists.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)
b. Videotaping and photographing.
The trial court cited Gallanis-Politis and opined that section 425.16 protected the Thompsons’ videotaping and photographing of Montrose customers because they opened a code enforcement case and they were gathering evidence for the code enforcement officer for the City of Glendale. The argument in Aivazian and Atna’s opening brief does not specifically apply to the alleged videotaping and photographing. Once again, the argument is generalized. They do not explain why the trial court’s tentative ruling was legal error.
We deem the issue waived.
c. False statements about Montrose.
Based on Briggs and Paul, the trial court found that the Thompsons’ statements to private individuals about Montrose operating illegally and shutting down were protected by section 425.16 because they were made in connection with the City of Glendale’s investigation of a zoning violation. Aivazian and Atna do not discuss Briggs or Paul in either their opening brief or reply brief, nor do they provide any argument or authority that pinpoints why they contend that the false statement allegations are beyond the grasp of an anti-SLAPP motion.
No error has been shown.
d. Threats to local business owners.
The trial court concluded that the Thompsons made their statements to Rabensteine in connection with a proceeding authorized by law (the permit revocation hearing) and section 425.16 therefore applied. Aivazian and Atna’s opening brief does not explain why this was wrong. They argue the issue in their reply brief, but that is too late. To reach the issue would be unfair to the Thompsons. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.)
In fact, Sharon declared that she spoke to Rabensteine after Fuentes issued her ruling and told Montrose that its zoning use permit would be revoked unless it proved within four months that it was a bona fide restaurant. Aivazian and Atna advert to Sharon’s declaration in the reply brief but do not analyze why the Thompsons’ statements still do not fall within section 425.16. Even though the comments may have occurred after Fuentes initially ruled, there were further proceedings involving administrative appeals and a petition for writ of mandate.
e. Police reports.
In its tentative ruling, the trial court cited Chabak and stated that police reports are protected speech under section 425.16.
In Chabak, the defendant filed a police report stating that she had been touched inappropriately by the plaintiff. The court held that the defendant’s statements to the police clearly arose from the right to petition the government and were protected activity under the anti-SLAPP statute. (Chabak, supra, 154 Cal.App.4th at pp. 1511–1512.) Aivazian and Atna provided no law to the contrary in their opening brief. It is only in the reply brief that they discuss Chabak. “‘A point not presented in a party’s opening brief is deemed to have been abandoned or waived. [Citations.]’ [Citation.]” (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
To be complete, we have assessed Aivazian and Atna’s reply brief argument and found it unpersuasive. Though they contend that Chabak must be limited to reports of sexual abuse, they read Chabak too narrowly. In holding that a police report falls within the ambit of section 425.16, Chabak never suggested that its analysis was dependent upon the police report’s content.
3. Likelihood of success on the merits.
Aivazian and Atna argue that even if section 425.16 applies, they demonstrated a likelihood of success on the merits.
a. Slander.
In the context of this case, slander is a false and unprivileged oral statement that charges a person with a crime or tends to injury them “by imputing something with reference to [their] office, profession, trade, or business that has a natural tendency to lessen its profits.” (Civ. Code, § 46, subd. (3).) Reports to law enforcement personnel of suspected criminal activity by a third person are privileged under Civil Code section 47. However, a false report “can be the basis for tort liability... if the plaintiff can establish the elements of the tort of malicious prosecution.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 355.)
To support their slander cause of action, Aivazian and Atna advert to the declaration of Rabensteine. She declared that Sharon “came to speak to me with a man who I believe to be her husband. She proceeded to inform [me] that [Montrose] was operating illegally[] by having illegal private parties in violation of the Glendale [Municipal] Code. They told me everybody in the neighborhood was against this business and the trouble and the noise they cause.”
To prove falsity, Aivazian and Atna offered the declaration of their attorney, Derek L. Tabone. He declared that Fuentes revoked Montrose’s parking reduction permit because it was violating the condition that banquets be incidental to Montrose’s use. Even though Fuentes considered incidental use to mean, among other things, less than four days a week, there was no evidence that Montrose had banquets more than three days a week.
This evidence is insufficient. Aivazian and Atna did not directly dispute that they were having illegal private parties. Nor did they provide and analyze the applicable zoning ordinances and offer evidence that, despite any findings by Fuentes, they were in compliance with the law. Fuentes had more than one test for incidental use and those other tests were not discussed. We are unable to conclude, on this record, that Aivazian and Atna offered a prima facie case of slander.
b. Intentional infliction of emotional distress.
The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
Neither in her opening brief or reply brief did Aivazian advert to any evidence to establish any of the elements. Instead, she argues that the alleged slander and no show reservations amounted to outrageous conduct. Even if true, she has not shown that she suffered extreme emotional distress. The declaration she submitted below makes no mention of her mental state.
c. Intentional interference with prospective economic advantage.
To prevail on this last cause of action, Aivazian and Atna must demonstrate: (1) an economic relationship between the plaintiff and a third party; (2) the defendants’ knowledge of the existence of the relationship; (3) the defendants’ intentional wrongful conduct designed to interfere with that relationship; (4) actual disruption; and (5) damages to plaintiff. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 380, fn. 1, 392–393.) The wrongful conduct necessary for the third element is conduct that is “wrongful by some legal measure other than the fact of interference itself.” (Id. at p. 393.)
Aivazian and Atna did not discuss in their appellate briefs why the alleged conduct was wrongful by some legal measure other than the fact of the interference. Further, they did not advert to any evidence establishing that Montrose suffered damages. As a result, their argument on this cause of action is waived. “It is not our responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)
We need not discuss the injunction cause of action. Aivazian and Atna concede that it is not a cause of action but a remedy. Because they did not show a likelihood of success on the merits of their causes of action, they cannot show a likelihood of obtaining an injunction. We note that Aivazian and Atna represent that the first amended complaint contained a cause of action for trade libel. Due to the absence of the operative pleading from the appellate record, this representation cannot be verified. As argued in the opening brief, the trade libel cause of action is based on the same allegations that support the slander cause of action. Thus, even if we were to consider the trade libel cause of action, Aivazian and Atna could not prevail.
In their reply brief, Aivazian and Atna contend that the Thompsons’ wrongful conduct was an invasion of customer privacy by videotaping and photographing them. As we previously indicated, belated arguments are waived. On top of that, Aivazian and Atna did not analyze the law of invasion of privacy and therefore did not demonstrate that the Thompsons’ conduct was unlawful.
DISPOSITION
The judgment is affirmed.
The Thompsons shall recover their costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.