Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Super. Ct. No. S.C. 090300 John Shepard Wiley, Jr., Judge.
Law Offices of Steven W. Kerekes and Steven W. Kerekes for Defendant and Appellant.
Gieleghem Law Office and Neil Gieleghem for Plaintiff and Respondent.
ROTHSCHILD, J.
Plaintiff Gray & Associates, a California law firm, brought this action for unfair competition against defendant Thomas A. White, a non-lawyer, alleging that White is advertising and holding himself out as an attorney and engaging in the unauthorized practice of law. The complaint seeks restitution of the fees paid to White by his clients and an order enjoining White from practicing law without a license. White moved to strike the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court denied the motion.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
We reverse and direct the court to grant the motion.
FACTS AND PROCEEDINGS BELOW
Gray brought this action under Business and Professions Code section 17200 which defines “unfair competition” as any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”
Gray alleges that White advertises and holds himself out as a lawyer. As evidence, Gray points to an internet site that lists White as a lawyer and to White’s letterhead that describes him as “Consultant, Record and Music Publishing Industries, Creative, Business and Legal Aspects.” In addition, Gray claims that White represents himself to entertainment law and business seminar audiences in such a way that non-attorneys who attended these seminars believe that White is a lawyer admitted to practice in California. Gray alleges on information and belief that White appears at these seminars “in order to advertise, market and promote his services as an ‘Artist Rights Consultant’ in order to obtain more ‘clients’ who would pay him ‘fees’ for his ‘professional services.’” Gray alleges on information and belief that “White enters into written‘retainer’ agreements with such ‘clients,’ and charges them substantial hourly ‘fees’ (e.g. $250.00 per hour) for his ‘professional’ services, in the same manner that a legitimate law firm or attorney licensed to practice in California would enter into a written retainer agreement with clients for legal services.” Gray also alleges on information and belief that White engages in the unauthorized practice of law by advising clients on “‘artist rights matters and the recovery of intellectual property rights and interests’” and by acting as a “‘professional estate planner.’”
White moved to strike Gray’s complaint under the anti-SLAPP statute on the grounds that Gray’s complaint for unfair competition arose from White’s acts in furtherance of his constitutional right of free speech and it is not probable that Gray will prevail on its claim. (§ 425.16, subd. (b).)
The trial court denied the motion, ruling that Gray’s cause of action arose from White’s alleged unauthorized practice of law and not from White’s speech. The court did not reach the issue of whether Gray had shown a reasonable probability of success on the merits.
White filed a timely appeal. Our review is de novo. (Computer Xpress v. Jackson (2001) 93 Cal.App.4th 993, 999.)
DISCUSSION
A. The Two Prongs Of A SLAPP Motion.
A Strategic Lawsuit Against Public Participation (SLAPP) is a meritless claim “arising from any act of the defendant in furtherance of the defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)
A court follows a two-step process in ruling on a SLAPP motion. First the court determines whether the defendant has made a threshold showing that the plaintiff’s cause of action arises from the defendant’s protected speech. If so, the court then determines whether the plaintiff has demonstrated a reasonable probability of prevailing on the merits. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To meet this burden, the plaintiff must make a prima facie showing of facts which, if proved at trial, would support a judgment in the plaintiff’s favor. (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1299.)
B. Public Forum Speech On Issues Of Public Interest.
Under section 425.16, subdivision (e) an “‘act in furtherance of a person’s right of . . . free speech . . . in connection with a public issue’ includes . . . any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest” and “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
Gray’s brief on appeal does not deny that artists’ intellectual property rights are an issue of public interest nor that the seminars where White spoke were public forums. Instead, Gray maintains that White is not entitled to the protection of the anti-SLAPP statute because the cause of action against White for unfair competition arises from White’s unauthorized practice of law, not from “any act of [White] in furtherance of [his] right of petition or free speech.” (§ 425.16, subd. (b).) (Cf. Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal.App.4th 1633, 1638 [a suit to enjoin the unauthorized practice of law is not subject to a SLAPP motion because the suit arises from the defendant’s private conduct on behalf of its clients, not from its exercise of free speech].) We disagree.
Gray’s cause of action for unfair competition is based in significant part on White’s activities in furtherance of his right of free speech. Gray alleges White’s appearances at entertainment industry seminars and statements to the media serve as an advertising and marketing tool through which White steals clients who might otherwise go to Gray for advice on their rights. Gray further alleges it brought this action “to bar [d]efendants from further engaging in unlawful, unfair and fraudulent business acts or practices within the meaning of California’s Unfair Competition Law, Bus. & Prof. Code § 17200, et seq.; and from further engaging in unfair, deceptive, untrue or misleading advertising within the meaning of California’s False Advertising Law, Bus. & Prof. Code § 17500, et. seq. by way of defendants’ unlicensed and illegal practice of law in this State.” (Italics added, underscoring omitted.)
Gray does not argue the anti-SLAPP protections are unavailable to White because his communications are unprotected commercial speech. (But see our opinion in Rezec v. Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135, 140.) In any event, the record shows that White’s public appearances are at the invitation of non-profit organizations of which he is a member, such as the Beverly Hills Bar Association (adjunct, non-attorney member), the National Association of Record Industry Professionals and the Association of Independent Music Producers. At these appearances White speaks on topics chosen by the organizations, not his services as an “artist rights consultant.”
Indeed the majority of the allegations in Gray’s complaint relate to White’s speech in public forums on the issue of artists’ intellectual property rights. These include allegations that: (1) White “describes and advertises himself in the entertainment industry as an ‘Artist Rights Consultant’” and claims that he “‘specializes in artist rights matters and recovery of intellectual property rights and interests’”; (2) White “made equivalent representations as to his activities as an ‘Artist Rights Consultant’ in connection with [a seminar]”; (3) White appears at entertainment industry institutes and seminars “in order to advertise, market and promote his services as an ‘Artist Rights Consultant’”; (4) White gave an interview to an internet news source in which he was quoted as an “‘advisor’” to the family of Orson Wells concerning a dispute over the rights to Well’s films Citizen Kane and Touch of Evil; (5) White’s letterhead describes White as a “[c]onsultant” on the “[l]egal [a]spects” of the “Record and Music Publishing Industries” (underscoring omitted); and (6) White holds himself out as an attorney on the internet.
Finally, the complaint seeks, among other things, an injunction prohibiting White from “[a]dvertising or otherwise describing [his] professional activities in any manner that suggests that [he is an attorney] licensed to practice law in the State of California[.]”
When a cause of action, as in this case, arises out of both protected and unprotected activity the anti-SLAPP protections apply to the entire cause of action. (Fox Searchlight Pictures v. Paladino (2001) 89 Cal.App.4th 294, 308.) Accordingly, because Gray’s cause of action arises out of both protected activity (speech on a public issue) and unprotected activity (unauthorized practice of law), the protection of the anti-SLAPP statute applies.
C. The Illegal Conduct Exception
Gray next contends that even if its cause of action for unfair competition arises in part from White’s speech in public forums about an issue of public importance, his speech is not entitled to protection under the anti-SLAPP statute because the evidence conclusively shows that White’s speech is unlawful in itself and is done in furtherance of White’s unlawful practice of law. Gray relies on Flatley v. Mauro (2006) 39 Cal.4th 299, 320 in which our Supreme Court held that a defendant cannot satisfy the first step of the SLAPP inquiry if “the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law[.]”
Business and Professions Code section 6127, subdivision (b) prohibits “[a]dvertising or holding oneself out as practicing or as entitled to practice law or otherwise practicing law in any court, without being an active member of the State Bar.”
Our Supreme Court has held that the “‘practice of law’” involves “‘legal advice and counsel’” but that not all legal advice and counsel involves the practice of law. (Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542-543, citations omitted.) For legal advice to constitute the practice of law the advice must relate to “‘difficult or doubtful legal questions . . . which, to safeguard the public, reasonably demand the application of a trained legal mind.’” (Baron v. City of Los Angeles, supra, 2 Cal.3d at p. 543, citation omitted.)
In support of its claim that White was engaging in the unauthorized practice of law, Gray submitted the declaration of its principal, attorney Nancy Gray. She states that in representing clients on issues involving intellectual property matters she deals with copyright, trademark and related intellectual property issues. Based on her experience, she declares: “[I]t is my opinion that one who advises clients for a fee about their intellectual property rights must be a lawyer.” In Baron, however, our Supreme Court held practicing law is more than giving advice to a client for money. (Baron v. City of Los Angeles, supra, 2 Cal.3d at p. 543.) Thus, even assuming that Gray qualifies as an expert on what constitutes the practice of law, her conclusory opinion, unaccompanied by an explanation of what particular advice given by White constitutes the practice of law, has no evidentiary value. (Cf. Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [“[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests’”].)
The only other evidence on “practicing law” consists of White’s own declaration, his deposition in another matter and public statements he has made describing his consulting business. This evidence falls far short of “conclusively establishing” that White engages in the unauthorized practice of law or that he holds himself out as entitled to practice law.
White stated in his declaration in support of his SLAPP motion and in a deposition in another matter that on occasion he “advises” persons in the entertainment industry about their “intellectual property rights.” He described this advice as “[p]roviding consulting services, as requested, to performing artists, authors, and other creative individuals and their retained counsel . . . concerning the business of entertainment, and the administration and management of payment streams (often referred to in the entertainment industry as ‘rights’) in the form of royalties, residuals, and similar financial assets[.]” Gray offered no evidence that White’s advice went beyond the description in his declaration. None of White’s activities described in his declaration constituted the practice of law as our Supreme Court described that term in Baron v. City of Los Angeles, supra, 2 Cal.3d at page 543.
Responding to Gray’s allegation that he advertised as a lawyer on the FindLaw web site, White testified: “I played no part whatsoever in the creation or publication of that listing, did not solicit or request it, and in fact I had no knowledge whatsoever of the existence of it until I was served with this [c]omplaint[.]” White further testified that upon learning of the listing, he contacted FindLaw and demanded that his name be removed. Nine days later he received a confirmation from FindLaw that his name had been deleted from its web site. Gray offered no contradictory evidence.
As to describing himself as a “consultant” on the “legal aspects” of the record and music publishing industries, White testified the reference to “legal aspects” referred to his services “as a litigation consultant, expert witness, and manager of litigation expense.” Again, Gray offered no evidence to the contrary.
Finally, White denied he engaged in “estate planning.” Gray produced no contrary evidence.
Gray introduced no evidence to show that White furnishes advice to his clients or to the participants in seminars on subjects involving “difficult or doubtful legal questions” whose resolution “demand[s] the application of a trained legal mind.” Gray offered no testimony from any of White’s clients describing advice they received from White. It offered no transcripts or notes from any of White’s seminars reflecting the type of advice he gave there. And, it failed to present testimony from any seminar participant who was led to believe by White’s statements that he was licensed to practice law.
D. Probability Of Success On The Merits.
The lack of evidence to support Gray’s charge of unauthorized practice of law, discussed in Part C, above, leads us to conclude that Gray has not shown a probability of success on the merits.
As we discussed above, Nancy Gray’s conclusory legal opinion that all advice concerning intellectual property rights constitutes legal advice is unsupported. White’s undisputed description of his consulting business does not support the conclusion that he is practicing law. Gray did not produce any evidence contradicting White’s statement that he played no part in his listing as an attorney on the FindLaw website, that he was unaware of the listing until Gray called it to his attention and that FindLaw removed his name promptly when he demanded that it do so. Nor did Gray produce any evidence that White’s appearances at seminars or other public statements caused any person to believe that White was licensed to practice law in California.
DISPOSITION
The order denying White’s anti-SLAPP motion is reversed and the cause is remanded to the trial court with directions to enter a new order granting the motion and awarding White reasonable attorney fees for the proceedings in the trial court and on appeal. White is awarded his costs on appeal.
We concur: MALLANO, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)