Opinion
C077192
10-30-2018
S. SIMON LEVI, Plaintiff and Appellant, v. MORRISON & FOERSTER, LLP et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CV14196)
Plaintiff and appellant S. Simon Levi alleged over 65 attorneys, judges, elected officials, investigators, individuals, and corporations engaged in unethical practices, fraud, and political corruption in matters involving the California State Bar and the California Bar Foundation. He also alleged a group of the defendants conspired to press false criminal charges against him and interfere with the exercise of his constitutional speech rights because of the corruption he uncovered, resulting in an unlawful search of his home pursuant to an invalid warrant.
Respondents filed anti-SLAPP motions and demurrers. The trial court granted and sustained all of them. It also quashed service on one of the respondents, denied plaintiff's request to lift the discovery stay on the anti-SLAPP motions and continue the hearing, and dismissed with prejudice a number of defendants that plaintiff had not served and two defendants who had been served but had not appeared.
We note that not all of the defendants or the complaint's causes of action are before us. Respondents are Arnold & Porter, LLP; Pacific Gas & Electric; Ophelia Basgal; Erwin Chemerinsky; Freada Kapor Klein; Level Playing Field Institute; Fulcrum Properties; Mark Friedman; Thomas Girardi; former Attorney General Kamala D. Harris; Keker & Van Nest LLP; John Keker; Chris Young; James Lewis; Michael Cabral; Peter Martin; Martin Investment Management; Morrison & Foerster LLP; James Brosnahan; Raj Chatterjee; Munger, Tolles & Olson LLP; Ronald Olson; Jeffrey Bleich; Mary Ann Todd; Mark Robinson; Skadden, Arps, Slate, Meagher & Flom LLP; former Senator Darrel Steinberg; Richard Tom; Douglas Winthrop; the Hon. Holly Fujie; and Geoffrey Brown.
We affirm the judgment, and we impose sanctions on plaintiff.
FACTS
The allegations of the complaint, which we are required by law to presume are true (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967), are as follows. Plaintiff is an investigative reporter. He filed an ethics complaint sometime after 2010 with the California State Bar (the Bar) claiming its appointment of a private attorney as special prosecutor to investigate wrongdoing by attorneys Thomas Girardi and Walter Lack was improper due to various conflicts of interest. The appointment followed a decision by the Ninth Circuit Court of Appeals disciplining Girardi and Lack for misconduct and ordering them to report the misconduct to the Bar. (See Thomas v. Girardi (9th Cir. 2010) 611 F.3d 1027.) The Bar disqualified itself from handling the matter because its president at the time, Howard Miller, was a member of Girardi's law firm, Girardi & Keese. Miller had also hired the Bar's chief prosecutor, James Towery. The Bar appointed Jerome Falk, then of the law firm Howard Rice, as special prosecutor. Douglas Winthrop, then-president of the California Bar Foundation (Bar Foundation), was managing partner at Howard Rice. Falk ultimately determined not to prosecute the two attorneys, which was the reason plaintiff filed his ethics complaint. After several months, the Bar closed the investigation on the complaint.
A few weeks later, plaintiff discovered that Howard Rice had represented Girardi & Keese and Lack's firm two years earlier in a malpractice action. Plaintiff informed the Bar and its entire Board of Governors of this discovery. At that time, the Board of Governors included, among others, Alec Chang of Skadden, Arps, Slate, Meagher & Flom LLP (Skadden, Arps); Jeannine English, president of California AARP; and Joe Dunn, former executive director of the Bar. Plaintiff asked to reopen the investigation. The Bar did not respond.
Plaintiff alleges Dunn, English, and others conspired to protect Girardi because of his financial contributions to the Democratic Party, his arranging for cypres awards to go to California AARP, and because of similar conflicts of interest involving other members of the Bar's Board of Governors.
In March 2011, plaintiff submitted another ethics complaint to the Bar. This one alleged ethical wrongdoing by Skadden, Arps and Girardi & Keese. Plaintiff alleged Skadden, Arps represented Girardi & Keese and Thomas Girardi in Thomas v. Girardi, supra, at the same time the two firms represented opposing parties in an unrelated class-action lawsuit. The Bar took no action on this complaint.
In February 2011, plaintiff asked the Bar to investigate fraudulent transactions, financial irregularities, and unlawful conduct in connection with the Bar Foundation and a nonprofit corporation known as CaliforniaALL. CaliforniaALL was comprised of various public figures, including the Honorable Morrison England, former Senate President Darrell Steinberg, and former Attorney General Kamala Harris, and private individuals representing various companies including Pacific Gas & Electric (PG&E), Verizon Communications (Verizon), and Martin Investment Management.
Plaintiff alleges the Bar Foundation funneled $769,247 it received from PG&E, Verizon, Southern California Edison, and other companies to CaliforniaALL, and CaliforniaALL used those funds to finance election campaigns and an online publication.
The online publication was known as Voice of OC. It was launched by Thomas Girardi with the help of Joe Dunn; Erwin Chemerinsky, former dean of the University of California, Irvine, School of Law; and attorney James Brosnahan of Morrison & Foerster. Plaintiff asked the Voice of OC to provide him with copies of its IRS 900 forms, but Voice of OC did not reply. Plaintiff filed a complaint with the IRS against Voice of OC and Dunn.
CaliforniaALL was also misused to finance the election campaigns of former Sacramento Mayor Kevin Johnson, Attorney General Harris, Governor Jerry Brown, and former President Barack Obama. CaliforniaALL was misused for these purposes by, among others, James Brosnahan, who was legal counsel to CaliforniaALL; attorney Jeffrey Bleich of Munger, Tolles & Olson LLP, former president of the Bar and director of the Bar Foundation; Attorney General Harris; and Mark Friedman of Fulcrum Properties.
The Bar Foundation misrepresented its role in funding CaliforniaALL in its annual report. Under the direction of then-director Geoffrey Brown, a commissioner on the California Public Utilities Commission, as well as Jeffrey Bleich and Douglas Winthrop, the Bar Foundation stated it supported the launching of CaliforniaALL and served as its "fiscal sponsor." It stated CaliforniaALL was a collaboration of the Bar, the California Public Utilities Commission, the California Public Employment Retirement System, and the California Department of Insurance. It was created to "bolster the pipeline of young people of diverse backgrounds headed for careers in law, financial services, and technology." The Bar Foundation transferred $769,247 to CaliforniaALL once the latter obtained its tax-exempt status. It thanked AT&T, Edison International, PG&E Corporation Foundation, and Verizon for their gifts in support of CaliforniaALL.
Plaintiff alleges the Bar Foundation never served as the "fiscal sponsor" of CaliforniaALL, and AT&T, Edison International, PG&E, and Verizon never used the Bar Foundation as a fiscal sponsor. All funds from those corporations went directly to CaliforniaALL. CaliforniaALL never acknowledged the money it obtained from the Bar Foundation, "demonstrating that the transfer was sub-rosa."
CaliforniaALL and the Bar Foundation also publicly misrepresented the receipt and use of the $769,247. CaliforniaALL transferred a portion of this money to the University of California, Irvine, Foundation (UCI Foundation), whose trustees included Joe Dunn; attorney Mark Robinson, a former member of the Judicial Council; and Erwin Chemerinsky. The UCI Foundation used the CaliforniaALL funds to start a new entity known as Saturday Law Academy at UCI. Plaintiff alleges CaliforniaALL falsely stated in public that its "first funded pipeline," the Saturday Law Academy, graduated its first class, and CaliforniaALL was instrumental in launching the Academy, when in fact the Academy had been fully operational before then.
In May 2011, plaintiff filed an ethics complaint with the Bar against a group of attorneys who represented the Bar for failing to disclose an alleged conflict of interest. A law student sued the Bar for not allowing her to sit for the bar exam. Judge England heard the matter and dismissed it. At that time, Judge England, his wife, and the executive director of the Bar, Judy Johnson, were "part . . . of" CaliforniaALL, which had just received close to $800,000 from the Bar. Neither the Bar nor the lawyers representing the Bar disclosed the alleged conflict to the law student.
The Bar determined plaintiff's ethics complaint did not present sufficient facts to substantiate an investigation. It informed plaintiff it had no involvement with CaliforniaALL once it was incorporated and operating. It also stated plaintiff's allegations that the Bar and CaliforniaALL were partners and a sub-rosa transfer of funds went from the Bar to CaliforniaALL were "not factually accurate."
On February 23, 2012, investigators from the Yolo County District Attorney's Office searched plaintiff's home pursuant to a search warrant. The warrant listed the names of Thomas Girardi, Joe Dunn, Bar prosecutor James Towery, Alec Chang of Skadden, Arps, California AARP President Jeannine English, Judy Johnson, and the attorneys who represented the Bar in the law student's action.
The investigators told plaintiff the Bar was pressing charges against him for filing a false and malicious ethics complaint arising out of the law student's action against the Bar. Filing a "false and malicious" complaint with the Bar alleging professional misconduct is a misdemeanor. (Bus. & Prof. Code, § 6043.5, subd. (a).)
The investigators confiscated two computers, flash drives, and documents.
The trial court took judicial notice of the search warrant and its supporting affidavit. The warrant authorized police to search plaintiff's home for written or recorded information concerning Jeannine English, Joseph Dunn, James Towery, Thomas Girardi, Alec Chang, Judy Johnson, and others. The affiant stated he received from the Bar a copy of an e-mail plaintiff sent to the named individuals threatening English with legal action involving multiple matters if she ignored the e-mail. Plaintiff demanded English to stop participating in all Bar affairs and to pay him $300,000 as settlement. Plaintiff admitted to an FBI agent he sent the e-mail but he did not intend to extort money.
The Yolo County District Attorney charged plaintiff with four felonies: three counts of extortion and one count of attempted extortion. (Pen. Code, §§ 523, 524.) Plaintiff pleaded no contest to one count of misdemeanor attempted extortion.
PROCEDURAL HISTORY
Plaintiff filed this action against over 65 defendants, 31 of whom are before us as respondents. He claimed his discovery of the financial corruption, obstruction of justice, and misconduct discussed above led to the defendants conspiring to bring false charges against him and have his home searched by authorities unlawfully in order to silence and intimidate him, retaliate against him, and recover incriminating evidence. He alleged various groups of respondents by their actions violated the Unfair Competition Law and his state and federal civil rights. (Bus. & Prof. Code, § 17200 et seq.; Civ. Code, § 52.1; 42 U.S.C. § 1983.)
In two separate hearings, the trial court granted all anti-SLAPP motions in their entirety and sustained all demurrers without leave to amend filed by the respondents. The court also (1) denied plaintiff's motion to allow discovery in the first group of anti-SLAPP motions; (2) denied his motion to continue the hearing on the first group of anti-SLAPP motions; (3) granted defendant Martin Investment Management's motion to quash service of summons; (4) dismissed certain defendants for plaintiff's failing to serve them; and (5) dismissed the complaint with prejudice against defendants PG&E and Ophelia Basgal, who had been served but had not appeared, on the basis the complaint was a sham.
Plaintiff contends the trial court erred in each of its rulings. He also filed a motion to strike the respondents' brief filed by Pacific Gas & Electric Co. and Ophelia Basgal because they did not appear in the trial court. We reject all of his contentions and affirm the judgment.
DISCUSSION
I
Jurisdiction over Martin Investment Management
The trial court quashed service of summons against Martin Investment Management, LLC (Martin Investment) for lack of personal jurisdiction. Plaintiff contends the trial court erred. He named Martin Investment and Mary Ellen Martin Zellerbach, a member of the firm, as defendants in the fourth cause of action, one of his claims under the Unfair Competition Law. He was unable to serve Zellerbach. He argues Martin Investment had sufficient contacts with California because six percent of its accounts were held by California residents, and because Zellerbach resided in California from 1976 until January 2012 and was a director of CaliforniaALL.
Plaintiff does not support this claim in his brief with citation to authority. An appellant bears the responsibility "to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Plaintiff has forfeited the claim. We recognize plaintiff is representing himself on appeal. However, "[p]ro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
In any event, as we explain below, plaintiff cannot recover against Martin Investment under the Unfair Competition Law because the alleged harm did not arise from any business dealings he had with Martin Investment. "While it is true that the issue on a motion to quash is not whether the ultimate issues of liability will be resolved in the plaintiff's favor [citation], nevertheless, when the plaintiff seeks to predicate jurisdiction on causing tortious effects in the forum state and when the record tends unequivocally to establish that the defendant's conduct did not cause such effects, the plaintiff 'cannot demand that we judge the question of jurisdiction in the light of a claim he apparently does not have.' [Citation.]" (J. M. Sahlein Music Co. v. Nippon Gakki Co., Ltd. (1987) 197 Cal.App.3d 539, 545.)
II
Motion to Strike PG&E's Brief
Plaintiff has moved to strike the respondents' brief filed by PG&E and Ophelia Basgal (PG&E defendants). Plaintiff served the PG&E defendants, but they did not appear. Nevertheless, the trial court dismissed the complaint against them with prejudice pursuant to its inherent authority on the ground the complaint was a sham and plaintiff had no valid cause of action against them. In his motion, plaintiff contends the trial court's orders cannot apply to a party that does not appear and, accordingly, we should strike the PG&E defendants' brief because they cannot be respondents.
The PG&E defendants oppose the motion to strike, and they also request sanctions. They argue they are respondents as a matter of law and thus obligated to file a brief because the trial court entered a judgment in their favor, plaintiff appealed from that judgment, and plaintiff argued in his opening brief that the trial court erred by dismissing the PG&E defendants. The PG&E defendants ask us to sanction plaintiff for filing a frivolous motion.
The PG&E defendants have also filed a motion to dismiss the appeal against them, based on a statement by plaintiff. In his motion to strike, plaintiff stated, "it is a given that any orders issued by the trial court which are at issue in this appeal could not be applicable to these parties." The PG&E defendants contend that if the trial court's orders are not applicable to them, as plaintiff asserts, then plaintiff's appeal does not apply to them and he has abandoned his appeal as to them.
Plaintiff asked us by motion to rule on his motion to strike and the PG&E defendants' motions before we issue our opinion. We deny that motion and now rule on the competing motions.
We deny plaintiff's motion to strike the PG&E defendants' respondents' brief, as they were respondents in this action as a matter of law. The trial court exercised its inherent authority to dismiss the action against the PG&E defendants. It had the authority to do so even though they had not appeared in the action. They had been served, and the trial court, having read the numerous briefs filed on the various motions to strike and the demurrers, clearly understood the complaint and whether plaintiff had stated a cause of action against anyone. (6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 747, p. 931.) Plaintiff appealed from the entire judgment in favor of defendants, which included the PG&E defendants. The trial court notified them that plaintiff filed a notice of appeal. (Cal. Rules of Court, rule 8.100(e).)
By rule, plaintiff, as the appealing party, became the appellant, and all other adverse parties (those whose judgments in their favor plaintiff is challenging) became respondents. (Cal. Rules of Court, rule 8.10(1), (2).) Plaintiff filed an opening brief in which he argued the trial court erred by dismissing the PG&E defendants. As a consequence, the PG&E defendants were obligated to file a respondents' brief. (Cal. Rules of Court, rule 8.200(a)(2) ["Each respondent must file and serve and file a respondent's brief"].)
We may impose monetary sanctions against a party for filing a frivolous motion. (Cal. Rules of Court, rule 8.276(a)(3).) An appeal or motion is frivolous "when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal [or motion] is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
As required by court rule, we gave plaintiff written notice that we were considering imposing sanctions for filing a frivolous motion. (Cal. Rules of Court, rule 8.276(c).) We informed him he could serve and file a written opposition. (Cal. Rules of Court, rule 8.276(d).) He did not file an opposition.
We hold it was frivolous for plaintiff to move to strike the PG&E defendants' brief by contending they were not respondents when he appealed from the judgment in their favor and challenged that judgment on its merits in his opening brief. No reasonable attorney would have brought the motion to strike. Accordingly, we impose sanctions on plaintiff in the amount of $2,700, payable to the PG&E defendants as the cost they incurred in defending against plaintiff's motion. (Cal. Rules of Court, rule 8.276(a)(3).)
We deny the PG&E defendants' motion to dismiss as moot. As we explain below, plaintiff failed to state a cause of action against them.
III
Anti-SLAPP Motions
Plaintiff contends the trial court erred by granting the anti-SLAPP motions because the defendants failed to establish his claims arose from their protected activity, and he submitted sufficient evidence to show he was likely to succeed on the merits.
Plaintiff also contends the trial court abused its discretion in not permitting limited discovery before granting the anti-SLAPP motions, and in denying his motion to continue the hearing on the first group of anti-SLAPP motions. We disagree with plaintiff's contentions.
A. Standard of review
Before addressing plaintiff's arguments, we briefly review the anti-SLAPP process and our standard of review. The anti-SLAPP statute (Code Civ. Proc., § 425.16) provides a "procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) Consequently, "the anti-SLAPP statute is to be construed broadly." (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508.)
We review the trial court's ruling de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Code Civ. Proc., § 425.16, subd. (b)(2).) We do not weigh the evidence or determine its credibility. Instead, we accept plaintiff's evidence as true and evaluate the defendants' evidence only to determine if it has defeated plaintiff's evidence as a matter of law. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
We evaluate an anti-SLAPP motion using a two-step process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) We first determine "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) A defendant meets this burden by showing the plaintiff's action arises from acts taken "in furtherance of the [defendant's] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . ." (Code Civ. Proc., § 425.16, subd. (b)(1).)
The anti SLAPP statute defines an " 'act in furtherance of a person's right of petition or free speech' " to include: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding , or any other official proceeding authorized by law, (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, (3) 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, or (4) 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." (Code Civ. Proc., § 425.16, subd. (e).)
In deciding whether a cause of action arises from protected activity, "the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, original italics.) An "act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (Ibid., original italics.) Courts must look to "the act underlying the cause of action, not the gist of the cause of action." (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1190, disapproved on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 391.)
When we take this first step and determine whether plaintiff's causes of action arise from defendants' protected activity, we do not consider the legitimacy of the plaintiff's claims. (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 371.) If a defendant fails to establish plaintiff's action is based on defendant's protected activity, the complaint is not subject to the anti-SLAPP statute. (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550 (Haight Ashbury).)
If the defendant makes the requisite showing, we apply the second step. This step is "a 'summary-judgment-like procedure.' " (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) At this step, "the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Id. at p. 396.)
At this second step, plaintiff must introduce sufficient evidence to meet his burden. "More to the point, plaintiff cannot rely on his pleading at all, even if verified, to demonstrate a probability of success on the merits." (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 474.)
Applying this test, we affirm the trial court's granting the anti-SLAPP motions. At issue are the motions filed against plaintiff's fifth, sixth, seventh, eighth, and ninth causes of action.
B. Fifth cause of action
In his fifth cause of action, plaintiff alleged certain defendants associated with the Bar Foundation violated the Unfair Competition Law by making a false statement in the Bar Foundation's annual report regarding its involvement with CaliforniaALL. Plaintiff brought the fifth cause of action against respondents Munger, Tolles & Olson LLP; Jeff Bleich; Arnold & Porter LLP; Douglas Winthrop; and the Honorable Holly Fujie, Los Angeles County Superior Court. We refer to them in this section as the Bar Foundation defendants.
The Bar Foundation stated it served as CaliforniaALL's fiscal sponsor, CaliforniaALL was created to close the achievement gap among California students and to bolster the pipeline of students from diverse backgrounds headed to certain careers, and the Bar Foundation raised $769,247 in gifts from AT&T, Edison International, PG&E Corporation Foundation, and Verizon, which it transferred to CaliforniaALL. Plaintiff asserts the statement was knowingly false, misleading and fraudulent. He claims the anti-SLAPP motions should have been denied because the statement was false and thus not constitutionally protected speech.
We disagree. The statement was a protected statement. It qualified as an "act in furtherance of a person's right of petition or free speech" under the anti-SLAPP statute as a written statement made in a public forum in connection with an issue of public interest. (Code Civ. Proc., § 425.16, subd. (e)(3).) The annual report was a public forum. A public forum includes various forms of public communication and is not limited to a physical setting. (Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1086.) Such forums include a website that is accessible to the general public, a community newsletter, and a campaign flyer. (See Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1121; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476-477 [community newsletter]; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674 [union campaign flyer].) Plaintiff alleged he reviewed the annual report, and the report was available at the Bar Foundation's website.
In addition, the statement in the annual report concerned an issue of public interest. For purposes of an anti-SLAPP motion, an issue of public interest "is any issue in which the public is interested. In other words, the issue need not be 'significant' to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest." (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.) The statement explaining CaliforniaALL's purpose to close the achievement gap among students of diverse backgrounds and the Bar Foundations' funding in support of that purpose qualifies as a statement on an issue of public interest.
Plaintiff contends the statement cannot qualify as a protected statement because he alleged it was false. But at this first step of the anti-SLAPP analysis, with an exception not applicable here, we do not consider whether the protected statement is true, false, or actionable. We decide only whether the statement from which plaintiff's claim arose falls within the scope of the anti-SLAPP statute's definition of protected activity. (Haight Ashbury, supra, 184 Cal.App.4th at p. 1549.) "[W]hether or not [a defendant's] statements were false does not determine whether they constitute protected activity for purposes of the SLAPP statute." (Ibid.) Subdivision (e)(3) of Code of Civil Procedure section 425.16 pertains to "any written or oral statement or writing made in . . . a public forum in connection with an issue of public interest," "not merely to statements that everyone agrees were true. While an exception to the reach of subdivision (e) arises where 'the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence' [citation]" (Haight Ashbury, at pp. 1548-1550), the Bar Foundation defendants do not concede their statements were false or illegal, and plaintiff has not conclusively shown they were. His showing consists only of conclusory allegations, not conclusive evidence.
Having determined plaintiff's fifth cause of action arose from protected activity, we engage in the second step of the anti-SLAPP process to determine whether plaintiff submitted sufficient evidence to establish he was likely to succeed on the merits. Plaintiff does not argue this issue in his brief, and has thereby forfeited it. (Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1033.)
Had he argued the issue, we would conclude he could not show likelihood of success on his fifth cause of action as a matter of law. The Unfair Competition Law provides a private right of action against "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising[.]" (Bus. & Prof. Code, §§ 17200 (Section 17200), 17203.) It prohibits practices that are either "unlawful," "unfair," or "fraudulent." (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 283.)
While the law's scope is broad, its remedies are available to a limited number of persons. A private action may be brought only by a person "who has suffered injury in fact and has lost money or property as a result of the unfair competition." (Bus. & Prof. Code, § 17204.) To have standing, a plaintiff must "(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim." (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322, original italics.)
Persons "who have not engaged in any business dealings with would-be defendants" have no standing to bring an action under the Unfair Competition Law. (Kwikset Corp. v. Superior Court, supra, 51 Cal.4th at p. 317.) Standing exists only "for actual victims of deception and other acts of unfair competition . . . ." (Ibid.)
The Unfair Competition Law limits not only who may sue, but also what they may recover. Private plaintiffs may seek only injunctive relief and restitution under the Unfair Competition Law. (Bus. & Prof. Code, § 17203.) An order for restitution is limited to compelling the defendant to return money or property obtained through an unfair business practice to those persons from whom the property was taken. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144-1145, 1149.)
Plaintiff cannot establish he has standing to bring an action under the Unfair Competition Law against the Bar Foundation defendants. His evidence shows he did not suffer economic harm as a result of any business dealings he had with the CaliforniaALL defendants. Nowhere did he show or allege he was a director, member, employee, competitor, or consumer of the Bar Foundation defendants or that he had a contractual relationship with any of them. He did not show he was injured in any of those roles as a result of an unfair business practice by the Bar Foundation defendants. He established only that he is an investigative reporter residing in Yolo County who filed ethics complaints with the Bar.
Plaintiff's argument on the damages he suffered further exposes his lack of standing. His purported "damages" are the costs he incurred investigating the defendants, not the money he lost because of them in a business dealing. In the complaint, he merely pleaded he had suffered damages that would be proven at trial. In his brief, he specifies the damages he suffered. He contends that as a result of the fraudulent statement made by the Bar Foundation defendants, he "suffered monetary damages because it took him countless hours to investigate the claim that California Bar Foundation served as 'fiscal sponsor' to only conclude that the claim is false. In conducting the research, [plaintiff] spent money on long distance phone calls in trying to obtain and verify information from the various utility companies such as Verizon. Later, [plaintiff] suffered further monetary damages due to the fact that had Respondents not engaged in fraud, they would not have the motive needed to conspire to file false criminal charges against [plaintiff] for the purpose of confiscating his computers worth hundreds of dollars." None of these costs are money or property plaintiff lost to the Bar Foundation defendants as a result of a business dealing.
The trial court correctly granted the Bar Foundation defendants' anti-SLAPP motions against the fifth cause of action. The cause of action arose from protected activity, and plaintiff cannot as a matter of law succeed on a claim under the Unfair Competition Law against the Bar Foundation defendants
C. Sixth cause of action
Plaintiff's sixth, seventh, and eighth causes of action arise from an alleged conspiracy to set in motion all of the actions described above that culminated with the unlawful search of plaintiff's home and false charges for filing a false ethics complaint with the Bar.
Plaintiff alleged the sixth cause of action against respondents Keker & Van Nest; John Keker; Chris Young; Skadden, Arps; Munger, Tolles & Olson LLP; Jeff Bleich; Ron Olson; Mary Ann Todd; Morrison & Foerster; James Brosnahan, Raj Chatterjee, Erwin Chemerinsky, Freada Kapor Klein, Douglas Winthrop, Richard Tom, Judge Fujie, Mark Robinson, Mark Friedman, and Fulcrum Properties. All of these parties brought anti-SLAPP motions against the sixth cause of action with the exception of Freada Kapor Klein, Morrison & Foerster, James Brosnahan, and Raj Chatterjee, who filed demurrers. We refer to these respondents as the conspiracy defendants.
In his sixth cause of action, plaintiff alleged the conspiracy defendants violated the Unfair Competition Law by conspiring to falsely report a crime and procure another to be charged for a crime in violation of Penal Code sections 148.5 and 182. He contends the trial court erred in granting the anti-SLAPP motions against the sixth cause of action because the conspiracy defendants' actions were illegal activity and not protected conduct.
We disagree with plaintiff's argument. The statements to authorities resulting in the search of plaintiff's home and his eventual prosecution for extortion were protected statements. Making an allegedly false police report is protected petitioning activity under the anti-SLAPP statute. (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966; Comstock v. Aber (2012) 212 Cal.App.4th 931, 941.) It is a "written or oral statement or writing made in connection with an issue under consideration or review by . . . [an] official proceeding authorized by law." (Code Civ. Proc., § 425.16, subd. (e)(2).)
Plaintiff contends the statements cannot be protected because he alleged they were false and violated criminal law. But, as stated already, merely pleading a statement's falsity does not establish it was false. "[W]hen allegations of making false reports are controverted, they are insufficient to render that alleged conduct unlawful as a matter of law and outside the protection of [the anti-SLAPP statute]." (Kenne v. Stennis, supra, 230 Cal.App.4th at p. 967.) The only exception to this rule is where the defendant concedes the conduct's illegality or the evidence conclusively establishes the conduct was illegal. (Flatley v. Mauro, supra, 39 Cal.4th at p. 320; Haight Ashbury, supra, 184 Cal.App.4th at pp. 1549-1550; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1655.) None of the conspiracy defendants conceded their complaints to authorities were false or illegal, and the evidence does not conclusively establish they were. To the contrary, plaintiff's conviction of attempted extortion indicates their complaints were legitimate.
Because plaintiff's sixth cause of action arose from protected activity, we turn to the second step of the anti-SLAPP process to determine whether he submitted sufficient evidence to establish he was likely to succeed on the merits. Plaintiff cannot plead a violation of the Unfair Competition Law based on the conspiracy defendants' statements for the same reasons he cannot plead a violation of that law in his fifth cause of action—he did not suffer a loss of money or property as a result of uncompetitive conduct in a business dealing with the conspiracy defendants.
Plaintiff claims he brought the sixth cause of action pursuant to Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, a case which allowed a member of the public to sue a defendant under the Unfair Competition Law for violating a criminal statute. That case, however, has been superseded by statute. At the time the case was decided, a private plaintiff who had suffered no injury could sue under the Unfair Competition Law to obtain relief for others. (Id. at p. 561.) In 2004, the electorate passed Proposition 64 which limited standing under the Unfair Competition Law to persons directly injured by a defendant's anti-competitive conduct. "After Proposition 64, only those private persons 'who [have] suffered injury in fact and [have] lost money or property' ([Bus. & Prof. Code,] §§ 17204, 17535) may sue to enforce the unfair competition and false advertising laws. Uninjured persons may not sue ([Bus. & Prof. Code,] §§ 17204, 17535), and private persons may no longer sue on behalf of the general public (Prop. 64, § 1, subd. (f))." (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 240.)
Plaintiff does not qualify to sue under the Unfair Competition Law. Thus, he cannot show a likelihood of success on the merits, and the trial court correctly granted the conspiracy defendants' anti-SLAPP motions against the sixth cause of action.
D. Seventh and eighth causes of action
Plaintiff's seventh and eighth causes of action arise from the same conspiracy alleged in the sixth cause of action. We note that, for purposes of the seventh and eighth causes of actions, respondent Thomas Girardi is part of the conspiracy defendants.
Plaintiff alleged the conspiracy defendants' submission of false charges leading to an unlawful search of his home was done to retaliate for his exercise of speech rights and was actionable under state and federal civil rights law. (Civ. Code, § 52.1; 43 U.S.C. § 1983.) We have already determined the conspiracy defendants' actions to initiate charges against plaintiff were protected activities for purposes of the anti-SLAPP law. We need to determine only whether plaintiff showed he was likely to succeed on the merits of these claims. He did not.
To establish probability of success on the merits, plaintiff must make "a prima facie factual showing sufficient to sustain a favorable judgment." (Baral v. Schnitt, supra, 1 Cal.5th at p. 385.) He must provide the court with sufficient evidence. He cannot simply rely on the allegations in his complaint to make this showing. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568.)
In opposition to the first group of anti-SLAPP motions, plaintiff submitted no evidence to support his causes of action. He submitted only an opposition points and authorities and a declaration describing his discussions with opposing counsel to continue the hearing. In opposition to the second group of anti-SLAPP motions, plaintiff submitted a declaration and exhibits. The trial court sustained objections to the entire declaration and its exhibits. Plaintiff has not challenged the court's evidentiary rulings on appeal. There was thus no evidence before the trial court, and there is none before us, that would support a judgment in plaintiff's favor on the seventh and eighth causes of action. The trial court thus correctly granted the conspiracy defendants' anti-SLAPP motions against the seventh and eighth causes of action.
E. Ninth cause of action
In his ninth cause of action, plaintiff sought relief under federal civil rights law for violations of his Fourth Amendment rights. (42 U.S.C. § 1983.) He alleged Assistant District Attorney Michael Cabral provided false information to establish probable cause for obtaining the search warrant. He also contended investigator Peter Martin, who helped execute the warrant, exceeded the warrant's scope by confiscating documents that did not relate to the Bar.
We note that although the trial court stated Martin filed or joined in an anti-SLAPP motion it granted, Martin did not file an anti-SLAPP motion. He joined in Cabral's demurrer only. We thus do not address Martin's defense in this section.
On appeal, plaintiff does not challenge whether Cabral's statements were protected conduct. Nor does he reference evidence to show likelihood of success on the merits. Instead, he states Cabral, acting as a prosecutor, "does not enjoy immunity for the type of misconduct alleged" in the complaint, that of "providing false and malicious information to an investigator in order to procure an invalid search warrant." He also quotes allegations from the complaint of wrongdoing by Cabral.
This is not an argument cognizable on appeal. As stated earlier, allegations are not evidence for purposes of an anti-SLAPP motion. And simply alleging that Cabral does not enjoy immunity for his actions does not establish plaintiff is likely to succeed in challenging those actions. His lack of argument forfeits the claim against Cabral.
F. Motions to conduct discovery and continue the hearing
On May 15, 2014, plaintiff filed a motion to conduct limited discovery on the anti-SLAPP motions. He contended he needed to conduct the discovery in order to obtain evidence showing he was likely to succeed on the merits. He set a hearing day of June 12, 2014, the same day set for the hearing on the anti-SLAPP motions, because the visiting judge assigned to the case was not available to hear motions ex parte. The matter came before a visiting judge because plaintiff named Yolo County Superior Court judges as defendants, and the entire court recused itself from this case.
Approximately two weeks later, plaintiff filed an "ex parte" application to continue the hearing on the anti-SLAPP motions. He sought the continuance because he would be prejudiced if he had to submit an opposition to the anti-SLAPP motions before the court ruled on his motion to conduct discovery. He also sought additional discovery.
Plaintiff did submit an opposition on the merits, and as part of his opposition, he asked the court to bifurcate the proceeding. He asked it to rule only on the first-prong of the anti-SLAPP test and, if defendants established their conduct was protected, to continue the hearing to allow him time to conduct discovery.
In its June 12, 2014 order, the trial court denied both of plaintiff's motions.
Plaintiff contends the court abused its discretion when it denied his motions. He asserts the defendants were the sole source of the evidence he needed to prove his claims, and discovery and a continuance should have been granted so he could defend against the anti-SLAPP motions.
Plaintiff's argument is not persuasive. Generally, discovery is closed once an anti-SLAPP motion has been filed. (Code Civ. Proc., § 425.16, subd. (g).) However, the anti-SLAPP statute allows the court in its discretion to permit specified discovery "for good cause shown" on noticed motion. (Code Civ. Proc., § 425.16, subd. (g).) "Decisions that have considered what constitutes such a showing of good cause have described it as a showing 'that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.' [Citation.] The showing should include some explanation of 'what additional facts [plaintiff] expects to uncover . . . .' [Citations.] Only in these circumstances is the discretion under [Code of Civil Procedure] section 425.16, subdivision (g) to be 'liberally exercise[d].' [Citation.] Discovery may not be obtained merely to 'test' the opponent's declarations. [Citation.]" (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.)
The trial court did not abuse its discretion denying plaintiff's request for discovery and a continuance. Discovery would not have saved plaintiff's claims from dismissal under the anti-SLAPP statute. His fifth and sixth causes of action were brought under the Unfair Competition Law. If there was evidence showing plaintiff was injured due to a business dealing involving him and one of the respondents, a prerequisite for a claim under the Unfair Competition Law, he would have possessed that evidence.
Plaintiff's seventh, eighth, and ninth causes of action alleged civil rights violations based on a conspiracy that resulted in false charges and the police requesting a search warrant based on false information. But the affidavit supporting the warrant speaks for itself, and if any of its assertions of potential wrongdoing by plaintiff are false, plaintiff would be the person who possessed the evidence to prove their falsity.
Under these circumstances, we cannot say the trial court abused its discretion when it denied plaintiff's request for discovery and a continuance.
IV
Demurrers
Plaintiff contends the trial court erred when it sustained all of the demurrers without leave to amend. His argument on this point is sparse. He cites cases that establish the standard and scope of review on appeal of the sustaining of a demurrer. However, he addresses only the demurrers filed by the respondents named in his Unfair Competition Act causes of action. Those parties claim he failed to plead monetary damages and that he cannot prove damages.
Plaintiff asserts the court erred in sustaining the demurrers because he alleged he incurred damages and the damages would be proven at trial. In his Unfair Competition Act causes of action, plaintiff pleaded he "suffered injury in fact and has lost money or property in an amount to be proven at trial." He was being criminally prosecuted when he filed the complaint, and he did not plead damages in any more detail in order to preserve his right against self-incrimination in his criminal trial and not give the prosecutor information with which to impeach him.
Alternatively, plaintiff asks for leave to amend to cure any defects as to all causes of action. He is confident he could amend to eliminate any ambiguity or perceived deficiency. However, he does not state what additional facts he would add to his pleadings if we granted him leave.
By addressing only the demurrers filed against the Unfair Competition Act causes of action, plaintiff forfeits all other claims against the trial court's sustaining of demurrers. (See Rodriguez v. E.M.E., Inc., supra, 246 Cal.App.4th at p. 1033.)
As to plaintiff's Unfair Competition Law causes of action, we have already concluded plaintiff cannot recover under that law because he cannot allege he suffered loss of money or property due to an act of unfair competition by the respondents in a business dealing with plaintiff. The trial court thus correctly sustained the demurrers without leave to amend.
Plaintiff asks for leave to amend his complaint, but the time for that has passed. To establish the trial court abused its discretion in not granting him leave, he had to show "how the complaint can be amended to state a cause of action." (William S. Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1621.) Plaintiff made no such showing.
The trial court did not abuse its discretion by sustaining the respondents' demurrers without leave to amend.
V
Nonserved Defendants
Plaintiff contends the trial court erred when it dismissed a number of defendants who had not been served. The dismissed defendants, as named in the court's order, were Edison International, Southern California Edison, Howard Rice, Wilson Sonsini, CaliforniaALL, Torie Flourney-England, Michael Peevey, Steve Poizner, James Hsu, and Sonnenschein Nath & Rosenthal.
He argues the court abused its discretion because he was "extremely diligent" in prosecuting the case and that some defendants were not served due to problems with process servers. He asserts the court lacked authority in this instance to dismiss the complaint against the nonserved defendants for lack of prosecution.
The court, however, did not dismiss these defendants solely for lack of prosecution. The court stated it dismissed them because "plaintiff asserted in filings with the court that he would dismiss said defendants, but failed to do so . . . ." (Italics added.) Plaintiff does not address his earlier commitments to dismiss these defendants.
The court stated its dismissals were authorized by "The Trial Court Delay Reduction Act [(Gov. Code, §§ 68600-68620)], California Rule[s] of Court 3.100, and Yolo County Superior Court Rules 12.2 and 12.5(e)(8). Further, the complaint against these defendants is sham."
Plaintiff filed his original complaint on February 4, 2014. Plaintiff had 60 days, or until April 5, 2014, to serve the complaint on all defendants. (Cal. Rules of Court, rule 3.110(b).) He filed his first amended complaint on February 24, 2014. From that date, he had 30 days, or until March 26, 2014, to serve any new defendants he named in the amended complaint. (Ibid.) Plaintiff could have sought court permission to extend these times, but there is no evidence in the record he did so. (Cal. Rules of Court, rule 3.110(e).)
The trial court dismissed the nonserved defendants on July 25, 2014, months after plaintiff was required to serve all defendants. Because plaintiff informed the court he would dismiss the nonserved defendants and then did not, and plaintiff still had not served them as of the date of the hearing, the trial court did not abuse its discretion when it dismissed them with prejudice.
DISPOSITION
The judgment is affirmed. We impose sanctions on plaintiff in the amount of $2,700, due upon the finality of this decision and payable to Pacific Gas & Electric and Ophelia Basgal. Costs on appeal are awarded to respondents. (Cal. Rules of Court, rule 8.278(a).)
HULL, Acting P. J. We concur: MAURO, J. MURRAY, J.