Opinion
B330105
12-06-2024
JAMES A. KAY, JR., et al., Plaintiffs and Respondents, v. LEVI LESCHES, Defendant and Appellant.
Garrett & Tully, Stephen J. Tully, Ryan C. Squire, Brian W. Ludeke and John C. Tully for Defendant and Appellant. Timothy D. McGonigle for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. 23STCV01142. Michael P. Linfield, Judge.
Garrett & Tully, Stephen J. Tully, Ryan C. Squire, Brian W. Ludeke and John C. Tully for Defendant and Appellant.
Timothy D. McGonigle for Plaintiffs and Respondents.
GRIMES, Acting P. J.
This is an appeal from an order of the trial court denying a special motion to strike made by defendant Levi Lesches pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute). Lesches made the motion in response to the complaint of James A. Kay, Jr., and his affiliated entity Lucky's Two-Way Radios, Inc. (together, Kay) against Lesches and his client, Harold Pick, alleging Lesches and Pick maliciously prosecuted a lawsuit (the RICO action) against Kay in federal court. We agree with the trial court that Kay met his burden of showing a probability of success on the merits of his claim for malicious prosecution. We therefore affirm.
Undesignated statutory references are to the Code of Civil Procedure.
We refer to the parties by their names instead of our usual practice of using party designations. We hope to limit confusion in the context of James A. Kay, Jr., and Harold Pick's extensive litigation history in which one or both has, at times, been plaintiff, defendant, judgment debtor, judgment creditor, bankruptcy debtor, bankruptcy creditor, appellant, appellee, petitioner, respondent, and perhaps more.
BACKGROUND
Pick, through Lesches, commenced the RICO action in 2019. It is just one of many legal actions involving Pick and Kay as opponents. The proliferation of litigation stems back to the early 1990's. We discuss this history only to the extent necessary to frame the current proceedings.
Pick and Kay were competitors in the field of radio communications. In 1992, Pick and his late father made a complaint to their industry regulator, the Federal Communications Commission (FCC), that Kay was violating FCC rules. The FCC conducted an investigation and ultimately revoked Kay's licenses used in the operation of his two-way radio service. Shortly after Pick and his father made their initial report to the FCC, Kay sued them for slander.
More Kay lawsuits followed against Pick and related persons, including his mother. Over the years, Pick and his mother each filed for bankruptcy protection, leading to still more litigation involving the parties.
Kay was not the only one who ever sued Pick. Motorola, a radio manufacturer whose products Pick used in his business, obtained a $1.2 million judgment against him in 2005 for copyright infringement. Pick was found in possession of unlicensed Motorola software. Pick did not satisfy this judgment, and Motorola allowed it to lay dormant for a time. This changed in 2014 when Motorola renewed its judgment and began aggressive enforcement.
Kay was behind Motorola's sudden insistence on Pick satisfying its judgment against him. Kay had entered into an agreement with Motorola whereby he would fund and control the enforcement of judgment actions and Motorola would receive all proceeds. There was no direct economic benefit to Kay. According to Pick, Kay was motivated solely by his decades-long vendetta against Pick for reporting Kay to the FCC-he wanted to make good on his long-standing threat to render Pick and his family "homeless." Kay assisted Motorola in commencing three enforcement actions against Pick and related persons (the Motorola actions). Motorola prevailed in one of these actions. It was found to lack standing in the second, and the third was adjudicated against Motorola.
In 2019, Pick, through defendant Lesches as his counsel, filed the RICO action in the United States District Court for the Central District of California (district court) against Kay, Motorola, and various related persons not relevant to this appeal. The initial complaint contained a single count against Kay and Motorola for violation of section 1962(c) and (d), respectively, of title 18 of the United States Code, part of the Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. §§ 1961-1968). The basis for RICO liability as to Kay was that he funded three lawsuits by Motorola against Pick and related persons (including his mother) in retaliation for Pick having reported Kay to the FCC in 1992. This, Pick contended, violated section 1513 of title 18 of the United States Code, part of the Victim and Witness Protection Act (VWP Act; §§ 1512-1515). The initial complaint made no mention of the bar to Pick's claims imposed by the Noerr-Pennington doctrine, even though it is the plaintiff's responsibility to address it. (Boone v. Redevelopment Agency of San Jose (9th Cir. 1988) 841 F.2d 886, 894.)
Established by the decisions of the United States Supreme Court in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127 (Noerr) and Mine Workers v. Pennington (1965) 381 U.S. 657 (Pennington).
Later, and again through Lesches, Pick filed a first amended complaint (FAC). This one acknowledged Kay and Motorola's Noerr-Pennington defense and listed nine reasons Pick and Lesches thought it inapplicable.
On Kay and Motorola's motion, the district court dismissed the RICO action. It held Noerr-Pennington barred Pick's claims. At the same time, it denied on procedural grounds Kay's motion for sanctions for Pick's allegedly frivolous complaints in the RICO action. The Ninth Circuit affirmed dismissal in a short memorandum opinion.
In turn, Kay sued Pick and Lesches (and, again, affiliated parties not relevant to this appeal) for malicious prosecution. Kay alleged the RICO action lacked probable cause because his funding of the Motorola actions was "absolutely privileged under the Noerr-Pennington doctrine, as made clear by [binding Ninth Circuit authority]."
Pick and Lesches each filed special motions to strike pursuant to the anti-SLAPP statute. The trial court denied both. This appeal concerns only its denial of Lesches's motion. While the trial court necessarily found prong one of the anti-SLAPP analysis was satisfied-that the suit was brought on account of activity in furtherance of constitutionally protected rights of petition or free speech (§ 425.16, subd. (b)(1)), it found Kay satisfied his prong two burden to show a probability of prevailing on the merits of his malicious prosecution cause of action (ibid.). In doing so, it relied on the analyses of the district court and Ninth Circuit of Pick's RICO claim.
The trial court's denial of Pick's companion anti-SLAPP motion is the subject of a separate appeal, No. B330108. We affirm that decision in a contemporaneous opinion.
Lesches timely appealed denial of his anti-SLAPP motion.
DISCUSSION
1. The Anti-SLAPP Statute and Standard of Review
The anti-SLAPP statute provides a procedure for courts "to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It broadly applies to causes of action "arising from" specified protected activity: "any act of [a] 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 . . . ." (§ 425.16, subd. (b)(1).)
A defendant moving to strike under the anti-SLAPP statute must "make an initial prima facie showing that plaintiff's suit arises from an act in furtherance of defendant's right of petition or free speech." (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-1043.) This is sometimes called the first anti-SLAPP prong. If this burden is met, the plaintiff must establish a reasonable probability he or she will prevail on the merits-the second anti-SLAPP prong. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 824-825, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) In doing so, the plaintiff may not rely exclusively on his complaint but must proffer admissible evidence that, if accepted by the finder of fact, would suffice to sustain a judgment in his favor. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).) We review the trial court's resolution of an anti-SLAPP motion de novo. (Sweetwater, supra, 6 Cal.5th at p. 940.)
2. Analysis
There is no question Kay's malicious prosecution lawsuit against Lesches for filing the RICO action arises from petitioning activity protected under the First Amendment to the United States Constitution and falls within the purview of the anti-SLAPP statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 &736, fn. 5 (Jarrow) ["the right of access to courts is an aspect of the First Amendment right of petition"].) The first prong of the anti-SLAPP analysis is satisfied.
Therefore, the issues on appeal are limited to whether Kay has, in satisfaction of the second step of the anti-SLAPP analysis, demonstrated a reasonable probability of prevailing on his malicious prosecution cause of action. This cause of action requires Kay to establish that the RICO action was "(i) initiated or maintained by, or at the direction of, [Lesches], and pursued to a legal termination in favor of [Kay]; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham &Watkins (2017) 3 Cal.5th 767, 775 (Parrish).)
Lesches never disputed the RICO action terminated in Kay's favor. It clearly did: it was dismissed as a matter of law with prejudice on the grounds that the Noerr-Pennington doctrine immunized Kay from liability for funding the Motorola actions. (See Berman v. RCA Auto Corp. (1986) 177 Cal.App.3d 321, 325 (Berman) [finding of immunity arising from litigation privilege amounted to favorable termination for malicious prosecution purposes because litigation privilege is a substantive, rather than procedural, defense, that renders causes of action based on privileged conduct meritless].) We therefore turn to the questions of probable cause and malice.
a. Malicious prosecution-probable cause
"[T]he probable cause element calls on the trial court to make an objective determination of the 'reasonableness' of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable." (Sheldon Appel Co. v. Albert &Oliker (1989) 47 Cal.3d 863, 878.) A claim is not legally tenable if a litigant either" 'relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) A legal theory is untenable when any reasonable attorney would agree it is totally and completely without merit. (Parrish, supra, 3 Cal.5th at p. 776.)
What the defendant knew, as relevant to his ascertainment of whether his cause of action was tenable, is a question of fact. (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 538.) However, if there is" 'no dispute as to the facts upon which an attorney acted in filing the prior action, the question of whether there was probable cause to institute that action is purely legal.'" (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 222 (Daniels).)
Here, the relevant facts are not in dispute. Lesches filed a complaint against Kay for violating RICO predicated upon Kay funding the Motorola actions in alleged retribution for Pick reporting Kay to the FCC in 1992. These facts were all necessarily known to Lesches when he initiated the action. Kay made an adequate prima facie showing the RICO action was totally and completely without merit because the Noerr-Pennington doctrine obviously rendered Kay immune from liability under these facts.
The Noerr-Pennington doctrine "is a rule of statutory construction that requires courts to construe statutes to avoid burdening conduct that implicates the protections of the Petition Clause of the First Amendment." (United States v. Koziol (9th Cir. 2021) 993 F.3d 1160, 1171.) That clause protects" 'the right of the people . . . to petition the government for a redress of grievances.'" (Ibid.) "Under the Noerr-Pennington doctrine, those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct." (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 930 (Sosa); see also White v. Lee (9th Cir. 2000) 227 F.3d 1214, 1231 ["The Noerr-Pennington doctrine ensures that those who petition the government for redress of grievances remain immune from liability for statutory violations, notwithstanding the fact that their activity might otherwise be proscribed by the statute involved."].) Noerr-Pennington applies to the filing, as well as funding, of lawsuits. (Sosa, at p. 937.) However, "neither the Petition Clause nor the Noerr-Pennington doctrine protects sham petitions, and statutes need not be construed to permit them." (Id. at p. 932.)
Sham lawsuits are those which (1) are objectively baseless and the defendant's motive in bringing them was unlawful (Real Estate Investors v. Columbia Pictures (1993) 508 U.S. 49, 54 (Real Estate Investors)); or (2) are part of a series of lawsuits "brought pursuant to a policy of starting legal proceedings without regard to the merits" and for an unlawful purpose (USS-POSCO Indus. v. Contra Costa County Bldg. &Constr. Trades Council (9th Cir. 1994) 31 F.3d 800, 810-811); or (3) involve making intentional misrepresentations to the court such that"' "a party's knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy" '" (Sosa, supra, 437 F.3d at p. 938). It seems plain to us that the Motorola lawsuits Kay funded were not sham lawsuits and were thus barred by Noerr-Pennington.
Despite making nine arguments for Noerr-Pennington exemption in the FAC, Lesches himself apparently realized at some point nearly half of these were unmeritorious. Before the
Ninth Circuit, and in his opening brief here, he offers just "five core arguments, and legal analysis and authority supporting those arguments[,] to demonstrate the Noerr-Pennington defense did not immunize Kay from his retaliatory litigation against Pick in violation of the [VWP Act]." We do not address each facet of these arguments nor each case Lesches cites as support for them because much of his analysis is so farfetched. As discussed below, Lesches's mischaracterization of authority and failure to comprehensively rebut the analysis of the trial court and the Ninth Circuit decision on which it relied is insufficient to show error on appeal.
Lesches first argues that, assuming Noerr-Pennington applies, he had a basis for arguing the sham litigation exception. The Ninth Circuit rejected his sham litigation arguments. It found none of the three Motorola lawsuits, each of which "sought to enforce a valid $1.2 million judgment . . . against Pick," was "objectively baseless." One was successful, a second "was dismissed for lack of standing based on reasoning [the Ninth Circuit] later rejected," and the third, while "present[ing] a closer question," had been judicially determined to be baseless not as to Pick (who was also a party) but as to an individual, Pick's codefendant, who was not a party to the RICO action.
On appeal, Lesches makes no attempt to show the first Motorola lawsuit was baseless. He only argues it was brought for an improper motive. But this does not matter because intent becomes relevant only where the litigation is baseless. (See Real Estate Investors, supra, 508 U.S. at p. 60.) He does not explain how the dismissal for lack of standing established a lack of merit in the second Motorola lawsuit. And, as to the third lawsuit, he asserts "[t]he Nevada trial court found Motorola acted in bad faith by filing [it], Motorola knew it was acting in bad faith, and Motorola acted maliciously." In support, he offers citations to excerpts of the trial court's order reproduced in a brief he filed and to the opinion of the Nevada Supreme Court affirming that decision. But these decisions addressed only determinations as to Pick's codefendant in the action. Lesches fails to address the point the Ninth Circuit found dispositive: that the merits of the actions against the codefendant were not relevant to Pick's theory of actionable retaliation against him. Lesches does go on to say Pick prevailed against Motorola at the summary judgment stage of this third action. But the record citations he gives for that are to statements in his own brief. This is not evidence. Nor does losing at summary judgment, without more, show Motorola's position was baseless.
Second, Lesches argues he had a basis for asserting Noerr-Pennington does not apply to the VWP Act because the Act "was enacted for the purpose of regulating First Amendment activity." The case citation he offers for this proposition, which did not consider Noerr-Pennington, actually says "[t]he underlying purpose of the [VWP Act] is to prevent harassing actions which may affect testimony in criminal trials." (United States v. Tison (11th Cir. 1986) 780 F.2d 1569, 1572.) The Ninth Circuit in affirming dismissal of the RICO action explained Noerr-Pennington precludes statutory liability for engaging in protected petitioning conduct unless the statute" 'clearly' require[s] the imposition of liability." (Quoting Sosa, supra, 437 F.3d at p. 931.) While reciting this standard, Lesches does not identify language that "clearly" exempts the VWP Act from Noerr-Pennington. He points only to broad language proscribing "any action harmful" meeting certain other qualifications. (Quoting 18 U.S.C.
§ 1513(e), italics omitted.) Broad statutory language alone is not a clear expression of intent to burden protected petitioning activity. For example, the court in Sosa, interpreted the word "wrongful" as not extending to nonsham petitioning activity when construing the broad proscription of" 'wrongful use of . . . fear'" in section 1951(b)(2) of title 18 of the United States Code. (Sosa, at pp. 939-940.) Indeed, it had to because this reading to avoid constitutional conflict was"' "fairly possible." '" (Id. at p. 939.)
Lesches fails to address that the Ninth Circuit found Kay's funding of lawsuits to enforce a valid and undisputed judgment was not a" 'harmful'" action when interpreting the VWP Act through the lens of Noerr-Pennington. The Ninth Circuit's interpretation of "harmful" in the RICO action plainly mirrors its interpretation of "wrongful" in Sosa. (Sosa, supra, 437 F.3d at pp. 939-940.)
Despite its importance, both here and before the Ninth Circuit, Lesches apparently refuses to read Sosa in its entirety. Like Pick's RICO action, Sosa ended at the pleading stage when the Ninth Circuit affirmed dismissal of the plaintiff's RICO claims based on the Noerr-Pennington doctrine. (Sosa, supra, 437 F.3d at pp. 927, 942.) Yet in his reply brief, Lesches asserts "Sosa did not address . . . RICO claims." This is yet another misrepresentation of authority that further saps Lesches of credibility.
Third, Lesches argues he had a basis for asserting the Noerr-Pennington immunity did not apply to litigation, or its funding, that concerned only private interests. In advancing this argument, Lesches brazenly mischaracterizes authority. For example, he asserts the United States Supreme Court in "In re Primus (1978) 436 U.S. 412 . . . found Noerr-Pennington does not protect funding of suits asserting private interests." Lesches did not cite any page of Primus on which we might find support for this assertion. We scoured Primus and found no such holding. On reply, Lesches says he "mistakenly stated in [his] [o]pening [b]rief that [he] had argued [Primus] stated Noerr-Pennington does not protect funding of suits asserting private interests." In the papers he filed in the RICO action, Lesches claimed that under Primus, "the First Amendment could not protect litigation funding motivated by malice." Even if this is different than what he "mistakenly" said in his opening brief, it is another holding not present in Primus. Primus addressed whether state bar discipline of an attorney who gave free legal advice to victims of coerced sterilization violated the First Amendment's right to free association. (Primus, at p. 431.) It did not involve litigation funding. It did not even involve the right of petition.
In another brazen mischaracterization of authority, Lesches asserts "all nine Justices of the [United States] Supreme Court agreed [in Borough of Duryea v. Guarnieri (2011) 564 U.S. 379 (Borough of Duryea)] that the Petition Clause does not apply to private litigation ...." Borough of Duryea says no such thing.
Indeed, it acknowledges "[the United States Supreme] Court's precedents confirm that the Petition Clause protects the right of individuals to appeal to courts . . . for resolution of legal disputes." (Id. at p. 387; see also Jarrow, supra, 31 Cal.4th at pp. 735 &736, fn. 5.) Lesches knows filing private lawsuits is protected petitioning activity. He necessarily admits as much elsewhere in his opening brief. If it were not, he would have lost his special motion to strike on the first prong, too.
Fourth, Lesches argues he had a good faith basis for contending Noerr-Pennington does not immunize parties involved in any debt collection actions from liability under the VWP Act because some courts have held Noerr-Pennington inapplicable to the Fair Debt Collection Practices Act (FDCPA; 15 U.S.C. § 1692 et seq.). But his argument has no merit because the VWP Act and FDCPA are not analogous statutes. He cites just one case "holding that the Noerr-Pennington doctrine did not bar an FDCPA claim." But the unpublished trial court decision he cites did not hold that debt collection is a special category of petitioning activity unworthy of Noerr-Pennington immunity. Instead, it applied the United States Supreme Court's interpretation of the FDCPA that it restricts litigation activity of lawyers (Sial v. Unifund CCR Partners (S.D.Cal., Aug. 28, 2008, No. 08CV0905JM(CAB)) 2008 U.S.Dist. Lexis 66666 at p. *1) to conclude the FDCPA "clearly" was intended to burden such petitioning activity (Sial, at p. *12). Since the VWP Act does not show any such clear intent, Lesches's analogy is devoid of merit.
Fifth, Lesches notes he made a public policy argument for exempting retaliatory litigation from Noerr-Pennington immunity under the VWP Act. Here again, Lesches shows only that he made the argument, not that it had merit. His argument turns on the incorrect premise that Congress intended to "burden [retaliatory] petitioning activity" in enacting the VWP Act. Again, congressional intent must be "clear[]" to overcome Noerr-Pennington's presumption that Congress did not intend to "burden[] conduct that implicates the protections afforded by the Petition Clause ...." (Sosa, supra, 437 F.3d at p. 931.) Again, Lesches has failed to identify a clear expression of congressional intent to support his position or address the reason the Ninth Circuit found the absence of such clear expression.
On reply, Lesches cites several cases omitted from his opening brief that treated certain petitioning activity as proscribed under the VWP Act. We decline to catalog the factual and legal reasons these have no currency here beyond noting that none-each of which arises in the criminal context-mentions Noerr-Pennington. (United States v. Lewis (7th Cir. 2005) 411 F.3d 838; United States v. Kilbride (9th Cir. 2009) 584 F.3d 1240; United States v. Palfrey (D.D.C. Mar. 16, 2007, No. 07-46 (GK)) 2007 U.S.Dist. Lexis 18565; United States v. Camick (D.Kan. Feb. 19, 2014, No. 13-10042-01-JTM) 2014 U.S.Dist. Lexis 20329.)
Lesches next quotes Lackner v. LeCroix (1979) 25 Cal.3d 747, 751 for the proposition that a claim for malicious prosecution can proceed only where the resolution of the underlying action in favor of the malicious prosecution plaintiff "reflect[s] on his innocence of the alleged wrongful conduct." Though part of his probable cause discussion, this argument goes to malicious prosecution's favorable termination element-an element Lesches admits he did not challenge below. According to Lesches, "[a] judicially-created immunity is not the same as a determination of Kay's 'innocence of the alleged wrongful conduct' of his intentional retaliation against Pick in violation of federal law." In the context of a claim for malicious prosecution, we disagree.
In Berman, supra, 177 Cal.App.3d 321, the court held a malicious prosecution case could proceed on an underlying defamation action that was resolved on the basis of the litigation privilege. It explained that the litigation privilege was a substantive defense that imposed a "bar to liability designed to protect the rights of the individual speaker, to insure that nothing will impede [his] access to the courts." (Id. at p. 325.) It held that this immunity went to the underlying merits of the action-and thus the "innocence of the defendant" so as to satisfy the requirement of favorable termination-because it broadly established, without need for "individual assessment of a particular case," that "suits based on privileged statements are suits which are without merit." (Ibid.) Lesches offers no creditable reason for us to view differently suits based on conduct immunized from liability under the Noerr-Pennington doctrine.
b. Malicious prosecution-malice
" 'The malice element of the malicious prosecution tort goes to the defendant's subjective intent . . . . It is not limited to actual hostility or ill will toward the plaintiff.' [Citation.] It can exist, for example, where the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim. A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence. [Citation.] Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)
Here, the combination of a lack of probable cause and evidence of Lesches's knowledge probable cause was lacking satisfies us that Kay made a prima facie showing of malice. (See Daniels, supra, 182 Cal.App.4th at p. 226 ["Additional proof of malice can consist of evidence a party knowingly brings an action without probable cause."].)
Whether or not Lesches was aware of the Noerr-Pennington immunity bar when he initiated the RICO action, he certainly knew of it when he maintained the action in spite of that bar. The FAC lists nine purported reasons Noerr-Pennington did not apply. Even after abandoning some, those he continued to press all wilted under judicial scrutiny. In litigating the issues, Lesches made blatant misrepresentations to the district court and to the Ninth Circuit about the state of the law-implying he knew a correct representation of the law would not support his position. For example, he told the Ninth Circuit "[Borough of Duryea, supra,] 564 U.S. 379 . . . h[e]ld[] that the Petition Clause only protects petitions implicating a public concern." As already discussed, this is false. He told the district court that funding collection actions was "controlled by Sure-Tan [v. NLRB (1984) 467 U.S. 883], not Noerr-Pennington." Lesches, tellingly, dropped his Sure-Tan arguments from his opening brief (he only said he made an argument, and then only on reply did he attempt to explain it). That case did not involve collection actions or litigation funding. Rather, it addressed whether an employer reporting employees to Immigration and Naturalization Services in retaliation for their organizing activities was engaged in protected petitioning activity. The Sure-Tan court found no protected petitioning activity was implicated because the employer was not attempting to redress wrongs against it. (Sure-Tan, at p. 897.) Here, Motorola went to court to redress a wrong against it-Pick's failure to satisfy its judgment against him. Kay's funding of that effort is, by extension, protected petitioning activity under Sosa, supra, 437 F.3d at page 937.
For the first time on reply, Lesches argues Sosa's statement that litigation funding is protected petitioning activity is dicta. Be that as it may, Sosa refers to the Ninth Circuit's holding in Liberty Lake Investments, Inc. v. Magnuson (9th Cir. 1993) 12 F.3d 155. (Sosa, supra, 437 F.3d at p. 937, citing Liberty Lake, at pp. 157-159.) Lesches claims the Ninth Circuit in Sosa misunderstood its own holding in Liberty Lake. We are unpersuaded. Liberty Lake stands for the proposition that funding a nonfrivolous lawsuit brought by a third party on grounds unrelated to the funder's motivating interests is protected under Noerr-Pennington. (Liberty Lake, at pp. 156, 157-159 [shopping center owner who funded environmental litigation by third party because owner wanted to bar new market entrant entitled to Noerr-Pennington immunity].) Decisions of other United States Courts of Appeals are in accord. (See Balt. Scrap Corp. v. David J. Joseph Co. (4th Cir. 2001) 237 F.3d 394, 397-399 [secret funding of a lawsuit brought against a potential competitor to maintain a monopoly was protected under Noerr-Pennington, even though the funding party was not a litigant]; Opdyke Inv. Co. v. Detroit (6th Cir. 1989) 883 F.2d 1265, 1273 [under Noerr-Pennington, "it would avail an antitrust plaintiff nothing to show that the defendant had surreptitiously caused a front man to institute a lawsuit against the plaintiff, even if the suit proved to be without merit, absent a showing of clear abuse of process"].)
We note Lesches's repeated description of his advocacy as "innovative" or "creative." Saying cases stand for propositions they do not may technically be both of these things, but it is not an acceptable form of advocacy. We are satisfied that the character of Lesches's continued advocacy in the face of an obvious bar to the RICO action establishes a prima facie showing of malice and therefore need not consider Lesches's other malice arguments.
Because we need not rely on evidence that was the subject of Lesches's objections to affirm, his appeal of the trial court's evidentiary rulings is moot.
DISPOSITION
We affirm the trial court's denial of Lesches's special motion to strike under the anti-SLAPP statute. Costs are awarded to Kay.
WE CONCUR: WILEY, J. VIRAMONTES, J.