Opinion
D072141
07-16-2018
CALIFORNIA VALLEY MIWOK TRIBE, Plaintiff and Appellant, v. CHADD EVERONE, Defendant and Respondent.
Manuel Corrales, Jr., for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton and Matthew S. McConnell for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00031738-CU-CO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed. Manuel Corrales, Jr., for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton and Matthew S. McConnell for Defendant and Respondent.
This is the latest state court appeal in a long contest involving membership in and control over the California Valley Miwok Tribe (Tribe or Plaintiff), and ultimately the authority to manage, on the Tribe's behalf, millions of dollars in Indian gaming funds. This time—the fifth appeal in this court—Plaintiff appeals from a judgment of dismissal after the court granted Chadd Everone's special motion to strike under Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP statute. We affirm.
Undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
A. Yakima Dixie
In 1916, the Bureau of Indian Affairs (BIA) acquired 0.93 acres in Calavaras County for the benefit of about 13 " ' "Sheepranch Indians." ' " (California Valley Miwok Tribe v. California Gambling Control Com. (2014) 231 Cal.App.4th 885, 890 (Miwok 2014).) The land, known as the Sheep Ranch Rancheria (Rancheria), was held in trust for the Indians by the federal government. (Ibid.)
" '[R]ancheria' " refers both to the land itself, and to the Indians residing there; in other words, rancheria is synonymous with both " 'reservation' " and " 'tribe.' "
Mabel Hodge Dixie, a granddaughter of persons identified as Sheepranch Indians, occupied the only home on the Rancheria. (Miwok 2014, supra, 231 Cal.App.4th at p. 890.) She died in 1971. After probate, her heirs—Merle Butler (her common law husband) and her four sons (Richard, Yakima, Melvin, and Tommy Dixie) possessed an undivided interest in the Rancheria. (Id. at pp. 890-891.) By 1998, of Mabel's heirs, only Yakima and Melvin were still alive. (Id. at p. 891.)
B. Silvia Burley
In the 1990's, Silvia Burley contacted the BIA about her Indian heritage. (Miwok 2014, supra, 231 Cal.App.4th at p. 891.) The BIA determined she might be related to a prior member of the Rancheria and gave her Yakima's contact information. (Ibid.)
In 1998, Yakima purportedly enrolled Burley, her two children (Rashel Reznor and Anjelica Paulk), and her granddaughter (Tristian Wallace) into the Tribe. (Miwok 2014, supra, 231 Cal.App.4th at p. 891.) Yakima was then listed as the Tribe's chairperson. (Ibid.)
In California Valley Miwok Tribe v. United States (D.D.C. 2006) 424 F.Supp.2d 197 (Miwok I), Yakima asserted that Burley was a distant relative who was " 'tribeless' " and approached him, asking that he give her and her daughters tribal status so they could receive government benefits, and he agreed. (Id. at p. 198, fn. 2.)
C. Tribal Organization
An Indian tribe may organize itself under the Indian Reorganization Act (IRA; 25 U.S.C. § 5101 et seq.) with federal assistance. In November 1998, Yakima and Burley signed a BIA-drafted resolution (Resolution) stating that the Tribe's membership consists of " ' "at least" ' " Yakima, Burley, Reznor, Paulk, and Wallace. They also established a general council to govern the Tribe. (Miwok 2014, supra, 231 Cal.App.4th at pp. 891-892.)
In April 1999, Burley informed the BIA that Yakima resigned as chairperson. (Miwok 2014, supra, 231 Cal.App.4th at p. 892.) However, Yakima claimed that Burley forged his signature on the resignation. (Ibid.)
D. Leadership Dispute: 1999-2005
Between 1999 and 2005 Yakima and Burley continued disputing tribal governance and membership. (Miwok 2014, supra, 231 Cal.App.4th at p. 892.) The BIA stated that if the Tribe did not internally resolve these disputes, it would suspend the government-to-government relationship between the Tribe and the United States. (Id. at p. 893.)
In 2004, the BIA rejected a new tribal constitution submitted by Burley because she had not included the whole tribal community in the process. (Miwok 2014, supra, 231 Cal.App.4th at p. 893.) The BIA did not recognize either Burley or Yakima as the tribal chairperson, nor did it recognize any tribal government. (Ibid.)
In response, Burley, purportedly on behalf of the Tribe, sued the United States in Miwok I, supra, 424 F.Supp.2d 197, asserting that the BIA was interfering in the Tribe's internal affairs by refusing to recognize the Tribe. The district court dismissed the complaint, and the Court of Appeals affirmed, noting that although the Tribe "has a potential membership of 250, only Burley and her small group of supporters had a hand in adopting her proposed constitution." (California Valley Miwok Tribe v. United States (D.C. Cir. 2008) 515 F.3d 1262, 1267.)
E. Indian Gaming Money
As a California tribe without a casino, the Tribe is entitled to receive $1.1 million per year from the Indian Gaming Revenue Sharing Trust Fund (RSTF). (Miwok 2014, supra, 231 Cal.App.4th at pp. 888-889.) In August 2005, the California Gambling Control Commission (Commission) notified the Tribe that it would withhold RSTF distributions until the BIA recognized an authorized Tribe leader. Since then, the Commission has placed the Tribe's funds in trust for later distribution. (Miwok 2014, supra, 231 Cal.App.4th at p. 889.) As of March 2013, the Commission was holding over $8.7 million, exclusive of interest, of the Tribe's RSTF funds. (Id. at p. 890.) The parties advise us that the current amount exceeds $13 million. "The tribal government that wins federal recognition will likely control the . . . million[s] held in trust, the $1.1 million annual payout, and any grants the federal government may bestow." (California Valley Miwok Tribe v. Salazar (D.D.C. 2013) 967 F.Supp.2d 84, 87 (Miwok II).)
F. The 2006 and 2010 BIA Decisions
By 2006, the dispute between Yakima and Burley was at an impasse. In a November 2006 decision (2006 Decision), the BIA published notice of a general council meeting of the Tribe, inviting Tribe and potential Tribe members to initiate the reorganization process. (Miwok 2014, supra, 231 Cal.App.4th at p. 894.) The BIA received 503 applications from individuals claiming to be lineal descendants of Tribe members. (Miwok II, supra, 967 F.Supp.2d at p. 88.)
Burley administratively appealed the 2006 Decision. (Miwok 2014, supra, 231 Cal.App.4th at p. 894.) That culminated in a 2010 decision (2010 Decision) by the Assistant Secretary-Indian Affairs for the United States Department of the Interior (the Assistant Secretary). In the 2010 Decision, the Assistant Secretary concluded there was " 'no need' " for the BIA to continue trying to organize the Tribe's government or to ensure that the Tribe conferred citizenship upon other Miwok Indians in the area. The Assistant Secretary rescinded the BIA's previous statements refusing to recognize Burley as the tribal chairperson. (Ibid.)
G. Yakima's Challenges to the 2010 Decision
In 2011, purportedly on behalf of the Tribe, Yakima filed a district court action challenging the 2010 Decision—Miwok II, supra, 967 F.Supp.2d 84. Burley intervened, and, while that action was pending, the Assistant Secretary withdrew the 2010 Decision and replaced it with an August 2011 decision (2011 Decision).
The 2011 Decision concluded, among other things, that (1) the BIA cannot compel the Tribe to expand its membership; (2) the Tribe's entire citizenship consisted of Yakima, Burley, her two daughters, and granddaughter; and (3) the Resolution established the Tribe's government, with whom BIA may conduct government-to-government relations. (Miwok II, supra, 967 F.Supp.2d at p. 89.) The Assistant Secretary acknowledged that this decision was " 'a 180-degree change of course' " from " 'positions defended by this Department in administrative and judicial proceedings over the past seven years.' " (Ibid.)
Yakima amended his complaint in Miwok II to challenge the 2011 Decision, and Burley intervened. (Miwok II, supra, 967 F.Supp.2d at p. 89.) After the district court denied Burley's motion to dismiss, the parties brought cross-motions for summary judgment. (Id. at pp. 94-95; California Valley Miwok Tribe v. Jewell (D.D.C. 2013) 5 F.Supp.3d 86 (Miwok III).) The district court granted Yakima's motion, determining that the Assistant Secretary "erred when he assumed that the Tribe's membership is limited to five individuals and further assumed that the Tribe is governed by a duly constituted tribal council . . . ." (Miwok III, at p. 88.) The district court was also concerned with the process under which Burley was enrolled in the Tribe, noting that when Burley first contacted Yakima he was "in jail and suffering from several serious illnesses and other disabilities"; however, the BIA made "no effort to determine what criteria Yakima used in determining Burleys' eligibility." (Id. at p. 99.) The court remanded to the Assistant Secretary to reconsider whether (1) tribal membership had been properly limited to five persons and (2) the Tribe's general council was a legitimate governing body. (Id. at pp. 99-100.)
H. The 2015 Decision
On remand, the Assistant Secretary issued a new decision (2015 Decision) determining: (1) the Tribe's membership is not limited to five people, (2) the United States does not recognize a tribal government based on the Resolution, and (3) Burley and her family do not represent the Tribe.
I. Burley Challenges the 2015 Decision
Purportedly representing the Tribe, Burley filed a district court action challenging the 2015 decision. Yakima intervened. (California Valley Miwok Tribe v. Zinke (E.D.Cal., May 31, 2017, CIV NO. 2:16-01345 WBS CKD) 2017 U.S. Dist. Lexis 84282, at *1 (Miwok IV).) On cross-motions for summary judgment, the district court upheld the 2015 Decision. (Id. at *21-*22.) Burley's Ninth Circuit appeal of that judgment is pending. (California Valley Miwok Tribe v. Zinke (9th Cir. June 22, 2017, No. 17-16321) (Miwok V).)
J. State Court Litigation
Meanwhile, in 2008 Burley (purportedly on behalf of the Tribe) filed an action in state court to compel the Commission to pay the Tribe's RSTF funds. (California Valley Miwok Tribe v. California Gambling Control Commission (Super. Ct. San Diego County, 2008, No. 37-2008-00075326-CU-CO-CTL).) Yakima intervened. (Miwok 2014, supra, 231 Cal.App.4th at p. 896.) On appeal, we affirmed summary judgment for the Commission, determining that the Commission properly withheld the Tribe's RSTF funds until there is an undisputed authorized tribal representative to receive the money. (Id. at p. 911.)
K. The Instant Litigation
In 2015, Plaintiff filed the instant complaint alleging a cause of action for intentional interference with prospective economic advantage against Everone, and a separate "cause of action" against him and the Commission for conspiracy to do so.
The complaint alleges other causes of action against the Commission, several of which the court dismissed on demurrer. The parties advise us that subsequently Plaintiff dismissed the remaining causes of action against the Commission without prejudice. The Commission is not a party to this appeal.
Specifically, Plaintiff alleges that after Yakima resigned as tribal chairman, Everone sought to take control of the Tribe and build a casino. The complaint alleges that Everone convinced Yakima to falsely state that his resignation as tribal chairperson was a forgery. Plaintiff alleges "[t]his then created a Tribal leadership dispute between Yakima . . . and Burley that has since 1999 caused havoc with the Tribe . . . ." The complaint alleges that Yakima maintained that his signature was forged until his February 2012 deposition, when he admitted he "in fact resigned in April of 1999, that his resignation was not forged as he had previously claimed, and that the signatures on the Tribal resignation documents were in fact his."
We occasionally refer to Plaintiff rather than "the Tribe" because of the ongoing leadership dispute.
Plaintiff alleges that Everone "took over control" of Yakima's "affairs," "managed and directed" Yakima's "litigation in the state and federal cases" and "manages" Yakima's "[f]action" of the Tribe. The complaint further alleges that Everone " 'controls' " Yakima and uses him for Everone's "own personal, financial benefit." Plaintiff alleges that Everone fabricated the claim that Yakima's resignation was forged as part of a "scheme to take over the Tribe for his own financial purposes."
Paragraph No. 100 of the complaint alleges "wrongful acts of interference" that were "done by Everone either directly or through his attorneys" as follows:
"a. Working together with the Commission's attorneys, the Attorney General's Office, to defeat Plaintiff's suit against the Commission for an order releasing the subject RSTF monies to the Tribal Council under Burley's leadership. Everone knew that [Yakima] had resigned and that his claim that his resignation was a forgery was false. That false claim created the Tribal leadership dispute that caused the Commission to ultimately withhold the subject RSTF payments from the Tribe and to cause [sic] the U.S. District Court in Washington, D.C., to remand the [Assistant Secretary's] August 31, 2011 decision for reconsideration. The Commission then used the U.S. District Court's decision to continue to withhold those funds . . . .
"b. Hiring a San Diego law firm . . . to 'intervene' in the Plaintiff's suit against the Commission and falsely state that [Yakima] never resigned . . . . The intervention was a sham and was calculated to interfere and stop the Plaintiff from receiving the subject RSTF monies.
"c. Arranging through his San Diego attorneys to falsely state to the State court and the federal court that the Tribe consists of more than 200 members, when in fact the Tribe consists of five (5) enrolled members.
"d. Filing suit in the federal court in Washington, D.C. . . . so as to control and manipulate the litigation to his advantage to the detriment of the Plaintiff. . . .
"e. Misleading the U.S. District Court in Washington, D.C., through his attorneys, by never mentioning the fact that [Yakima] had admitted he in fact resigned, and failing to tell the court that his assertion that he did resign was false and concocted by Everone, and thereby causing the [c]ourt to remand the [Assistant Secretary's] decision for reconsideration.
"f. Sending a Christmas card to the State Superior Court, only to have the court return it as inappropriate, in an obvious attempt to influence the court.
"g. Having his San Diego attorneys take the lead in a joint defense with the Commission (through the Attorney General's office) against the Plaintiff in the state court action, and allowing the Commission rely [sic] on Everone's team of lawyers to litigate against the Plaintiff.
"h. Through his San Diego lawyers, falsely 'administratively' appealing the BIA's January 2011 letters to the Tribe . . . .
"i. Meeting with the Commission and their staff and attorneys during the course of litigation in an attempt to influence them to continue to withhold the subject RSTF monies from the Tribe.
"j. Meeting with the BIA to get them to stop recognizing the Tribal Council under Burley's leadership and unlawfully attempting to get the Tribe 're-organized,' including, but not limited to, gathering non-enrolled Indians together to falsely say they are 'members' of the Tribe, and then using these fabricated developments as a foundation to falsely argue in the state court action that the Tribe consists of over 200 members . . . .
"k. Filing false documents with the state and federal court, and with the [Assistant Secretary], that [Yakima's] adoption of Burley was forged or fraudulent, so as to falsely raise doubts in the court's mind about the validity of the General Council under her leadership.
"l. Falsely attempting to create 'uncertainty' in the Tribal leadership and 'certainty' in the Tribal Council and in the Tribal membership, so
as to cause the state courts to order that the RSTF monies being withheld from the Tribe continue to be withheld, until that uncertainty is gone, and working with the Commission and the Commission's lawyers to argue those points to the state courts.
"m. Falsely claiming in the federal court that Resolution #GC-98-01 is void . . . so as to prevent the Commission from distributing the subject RSTF monies to the Tribe.
"n. In each one of Everone's false claims about the Tribe's leadership . . . the Commission worked together with Everone to advance these claims before the state and federal courts, which the Commission used as a basis to continue to wrongfully withhold the Plaintiff's RSTF monies.
"m. [sic] Everone's interference caused the California State Court of Appeal . . . to affirm the trial court's grant of summary judgment in favor of the Commission, thus allowing the Commission to continue to withhold the RSTF monies from the Tribe indefinitely . . . . Everone then, through his lawyers, filed an opposition to Plaintiff's petition for review before the Supreme Court . . . further interfering with the Plaintiff's prospective economic advantage."
L. Anti-SLAPP Motion
Everone's attorneys filed an anti-SLAPP motion asserting that "Paragraph 100 and all of its subparts purport to detail the wrongful conduct by Everone. All of the alleged conduct is directly associated with various legal proceedings" and is "precisely the sort of conduct the anti-SLAPP statute is meant to protect." After considering Plaintiff's opposition and conducting a hearing, the court granted the motion and subsequently entered a judgment of dismissal.
DISCUSSION
I. THE COURT PROPERLY GRANTED THE ANTI-SLAPP MOTION
A. General Anti-SLAPP Principles
" 'A SLAPP [strategic lawsuit against public participation] is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. " 'While SLAPP suits masquerade as ordinary lawsuits such as . . . interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right.' " ' " (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 585 (Okorie); see City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 375 (D'Alessio) [archetype SLAPP actions involve intentional interference with economic advantage].) To combat such lawsuits, "the Legislature has authorized a special motion to strike claims that are based on a defendant's engagement in such protected activity." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060 (Park).)
The anti-SLAPP statute, section 425.16, provides that a "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue 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." (Id., subd. (b)(1).) As used in the statutory scheme, an "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . ." (Id., subd. (e)(1) & (2).) A statement is in connection with litigation under section 425.16, subdivision (e)(2) "if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.)
"Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute . . . ." (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35 (Rohde).) So is "communicative conduct such as the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).)
In ruling on a motion under section 425.16, the court engages in a two-step process. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) This second step is described as a " 'summary-judgment-like procedure.' " (Ibid.)
Only a claim that satisfies both prongs on the anti-SLAPP statute—i.e., that arises from protected activity and lacks even minimal merit—is subject to being stricken under section 425.16. (Okorie, supra, 14 Cal.App.5th at p. 591.)
"We review a trial court's decision on a special motion to strike de novo. [Citation.] In engaging in the two-step process, we consider 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' [Citation.] 'However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." ' " (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 129-130.)
B. Analysis—The Cause of Action Arises from Protected Activity
Everone's burden at step one is to show that the cause of action for intentional interference with prospective economic advantage arises from protected activity. A claim arises from protected activity if the activity underlies or forms the basis for the claim. (Park, supra, 2 Cal.5th at p. 1062.) "Critically, 'the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.' " (Id. at p. 1063.) "In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Ibid.)
The trial court correctly determined that Plaintiff's cause of action for interference with prospective economic advantage arises from Everone's protected activity. This conclusion is made manifest in the complaint. An essential element of a cause of action for intentional interference with economic advantage is that the defendant engaged in wrongful acts designed to disrupt the economic relationship between the plaintiff and a third person. (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1005.) Paragraph No. 100 of the complaint alleges these wrongful acts by stating, "Everone's actions in interfering with the Tribe's right to the subject RSTF monies, . . . are . . . the following:" (1) hiring lawyers to " 'intervene' " in litigation, (2) misrepresenting to courts that the Tribe consists of more than 200 members, (3) misleading courts by not mentioning that Yakima admitted he resigned, (4) sending a Christmas card to the superior court in an attempt to influence the court, (5) instructing his attorney to conduct a joint defense with the Commission in the state court, (6) initiating an administrative appeal of a BIA decision, (7) meeting with the Commission during litigation to advocate withholding RSTF monies, (8) filing "false" documents in courts and administrative proceedings about Burley's enrollment in the Tribe, (9) creating uncertainty in tribal leadership and membership to cause courts to order withholding RSTF money, (10) making false claims in court about the Resolution, (11) causing the Court of Appeal to affirm summary judgment for the Commission, and (12) responding to Plaintiff's petition for review in the California Supreme Court.
This alleged speech and petitioning activity does not merely supply evidence of motive, intent, or some other element of the cause of action—but rather the speech and petitioning activity is explicitly alleged to be the injury-producing conduct, the acts upon which liability is based. After paragraph No. 100 enumerates this litigation activity, paragraph No. 101 alleges, "All of these wrongful acts of interference were done by Everone either directly or through his attorneys . . . ." (Italics added.) Paragraph No. 102 then alleges, "[T]he Commission's decision to withhold Plaintiff's RSTF monies . . . was caused in whole or in part by Everone's actions as herein alleged . . . ."
Thus, paragraph Nos. 100 through 102 of the complaint demonstrate that Plaintiff is suing Everone because of the evidence he submitted, the positions he took, and the litigation papers he filed in state, federal, and administrative tribunals. Such activities are protected under the anti-SLAPP statute. (§ 425.16, subd. (e)(1) & (2); Rusheen, supra, 37 Cal.4th at p. 1056 [" 'A cause of action "arising from" defendant's litigation activity may appropriately be the subject of a section 425.16 motion . . . .' "]; Rohde, supra, 154 Cal.App.4th at p. 35 ["statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute"].)
Disagreeing with this conclusion, Plaintiff asserts that Everone's wrongful conduct is not the litigation activity alleged in paragraph No. 100, but rather his false claim that Yakima's resignation as tribal chairperson was forged. Plaintiff contends that the activities alleged in paragraph No. 100 are "incidental or collateral" and "evidence" of Everone's overall scheme to take control of the Tribe and its rights to gaming money.
In some instances, speech and petitioning activity is peripheral to the actual claim in a complaint. (See, e.g., Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 809 [overall thrust of complaint attacked alleged business misdeeds rather than "collateral activity of pursuing governmental approvals"].) However, that is not the case here. A fair reading of the complaint shows that Everone's litigation activities are not incidental or collateral to the gravamen of the claim, but rather are the core of Plaintiff's cause of action for intentional interference with economic advantage. Paragraph No. 100 alleges some 15 instances of litigation activity that Plaintiff contends "interfer[ed] with the Tribe's right to the subject RSTF monies." Then, in paragraph No. 102, Plaintiff alleges that "the Commission's decision to withhold Plaintiff's RSTF monies" was caused by those very activities.
Plaintiff also contends that Everone's litigation is "mere evidence related to his liability of wrongful interference" or "mere evidence of . . . his continuing efforts to steal control of the Tribe so he can build a casino." However, the complaint's allegations show otherwise. For example, paragraph No. 100(a) alleges that the false forgery claim was the basis for the district court's remand of the 2011 Decision for reconsideration. Paragraph No. 100(e) alleges the false claim of forgery mislead the court. Paragraph No. 100(l) alleges that Everone "[f]alsely" created uncertainty in tribal leadership and worked with his attorneys "to argue those points to the state courts." Thus, Plaintiff's complaint expressly alleges that the petitioning activity is injury-producing and not "mere evidence" of something else. (See Okorie, supra, 14 Cal.App.5th at p. 593 [anti-SLAPP ruling upheld where the speech at issue "is explicitly alleged to be the injury-producing conduct"].)
This analysis also applies to the only other cause of action alleged against Everone—conspiracy. That cause of action relies on the same alleged litigation conduct, but adds that "the Commission conspired with Everone to accomplish Everone's goal and purpose of stopping the release of RSTF monies . . . ." Moreover, conspiracy is not a separate cause of action, but a form of vicarious liability. (Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 837.)
C. Illegality Exception
Not all petitioning activity is protected by the anti-SLAPP statute. For example, section 425.16 cannot be invoked by a defendant "whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition." (Flatley v. Mauro (2006) 39 Cal.4th 299, 317 (Flatley).) However, this exception may be applied only when "the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." (Id. at p. 320.) For the first time in the reply brief, Plaintiff argues that Everone "illegally" used the Tribe's name in violation of criminal statutes and, therefore, his petitioning activity is "illegal as a matter of law."
This issue is forfeited. "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075; Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2.)
D. Second Prong—Litigation Privilege
Under the second prong of the anti-SLAPP analysis, Plaintiff has the burden of establishing a probability of prevailing on its claim through admissible evidence. (Okorie, supra, 14 Cal.App.5th at p. 590.)
A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim. (Flatley, supra, 39 Cal.4th at p. 323.) The litigation privilege, codified in Civil Code section 47, provides in part: "[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . ." (Id., subd. (b).) The privilege is designed to afford litigants freedom to access courts without fear of being sued in " ' " 'derivative tort actions.' " ' " (D'Alessio, supra, 214 Cal.App.4th at p. 381.)
The litigation privilege applies " 'to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.' " (Rusheen, supra, 37 Cal.4th at p. 1057.) Thus, the " 'pleadings and process in a case are generally viewed as privileged communications.' " (Id. at p. 1058.) The litigation privilege applies to the communicative act of filing false testimony or declarations. (Ibid.)
The trial court correctly determined that the litigation privilege applies here. Paragraph No. 100 of the complaint alleges that Everone made communications in connection with judicial proceedings in the superior court, the Court of Appeal, the federal district court, and administrative tribunals. As pled, all of Everone's alleged conduct was undertaken to achieve the objects of litigation—that is, to further the Yakima faction's interest in tribal organization, membership, and governance.
Plaintiff contends Everone cannot invoke the litigation privilege because he was not a named party or legal representative for a named party in the litigation enumerated in the complaint. However, "the privilege is not restricted to the actual parties to the lawsuit . . . ." (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529.) Nonlitigants possessing a "substantial interest in the outcome of the pending litigation" are "authorized participants" who may assert the privilege. (Costa v. Superior Court (1984) 157 Cal.App.3d 673, 678.)
Everone is an authorized participant entitled to assert the litigation privilege. Indeed, Plaintiff's opening brief essentially concedes this by stating, "The lawsuits were all orchestrated by Everone. Everone simply used [Yakima's] name. . . . It all comes from Everone." The opening brief further concedes that "Everone has directly litigated" and "filed legal briefs" on Yakima's behalf. Similarly, the complaint alleges that Everone is the "managing agent" and " 'officer' " of Yakima's tribal faction who "managed and directed [Yakima's] litigation in the state and federal cases."
Because the court properly determined the litigation privilege applies, it is unnecessary to address Everone's alternative argument that as a matter of law, Plaintiff has "no right to the Tribe's RSTF funds, and thus . . . cannot possibly demonstrate that Everone interfered with their prospective economic advantage." We express no opinion on that issue.
Plaintiff also contends the court erred in granting the anti-SLAPP motion because Everone submitted no declarations. Plaintiff asserts that as a result, the undisputed evidence (and allegations in the complaint) "support[] a claim of economic interference and fraud."
This argument fails because Plaintiff cannot establish a probability of prevailing if the litigation privilege precludes Everone's liability. (Flatley, supra, 39 Cal.4th at p. 323; Brody v. Montalbano (1978) 87 Cal.App.3d 725, 737-738 [litigation privilege a defense to interference with prospective economic advantage].) Everone was not required to submit declarations because the allegations of Plaintiff's complaint show there is no reasonable probability that Plaintiff's intentional interference claim would prevail because Everone's allegedly wrongful conduct was privileged. (See Rusheen, supra, 37 Cal.4th at p. 1065.)
II. PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IS DENIED
On appeal, Plaintiff has filed a request for judicial notice of several documents, including Yakima's death certificate, indicating Yakima died in December 2017. For the first time in the reply brief, Plaintiff contends that Yakima's death "moots the 17[-]year-long tribal leadership dispute" and compels rejection of Everone's assertion that Plaintiff has no right to the RSTF funds.
We deny Plaintiff's request for judicial notice of Yakima's death certificate because his December 2017 death occurred postjudgment. "Matters occurring after entry of judgment are ordinarily not reviewable. The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 337, p. 387.)
There is an exception to this rule where a postjudgment occurrence causes an appeal to become moot. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Invoking that exception, Plaintiff contends Yakima's death "moots the 17[-]year-long tribal leadership dispute" that has prevented the Commission from paying the Tribe RSTF funds. In a related argument, Plaintiff contends that as a result of Yakima's death, "the Burley faction has the right to receive the RSTF payments for the Tribe." (Boldface and some capitalization omitted.)
We reject this argument because the merits of the tribal leadership dispute, and the resolution of that issue, is not properly before us in this appeal. As explained ante, the judgment is affirmed because the trial court correctly determined that Plaintiff's causes of action against Everone arise from his protected activity under section 425.16, which are also encompassed within the litigation privilege. Therefore, the resolution of the dispute over tribal leadership is irrelevant to the disposition of this appeal. Likewise, Yakima's postjudgment death is not relevant to any issue in this appeal. (See Best Buy Stores, L.P. v. Superior Court (2006) 137 Cal.App.4th 772, 779 [refusing to take judicial notice of documents not relevant to any issue on appeal].)
Plaintiffs also request this court take judicial notice of: (1) Yakima's opposition to Plaintiff's request for judicial notice in Miwok V, (2) a Court of Appeals order in Miwok V deferring disposition of a request for judicial notice to the merits panel, (3) excerpts from the Federal Register identifying the Tribe as recognized and eligible to receive BIA services, and (4) pages from the Tribe's website. Plaintiffs contend these documents are properly subject to judicial notice and relevant to their argument "that Everone has interfered with, and continues to interfere with the Tribe's right to . . . [RSTF] payments . . . ."
We deny the request for judicial notice of these documents because they are not relevant to any issue on appeal. The appeal is based on the record presented to the trial court when it ruled on the anti-SLAPP motion. (See People's Home Savings Bank v. Sadler (1905) 1 Cal.App. 189, 193, disapproved on other grounds in Reitano v. Yankwich (1951) 38 Cal.2d 1, 4.) Moreover, it is improper to take judicial notice of the truth of matters stated on a website. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889.)
DISPOSITION
The judgment is affirmed. Defendant is entitled to costs incurred on appeal.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.