Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. BC304174, Aurelio N. Muñoz, Judge. Affirmed.
United States Justice Foundation, Gary G. Kreep and D. Colette Wilson for Plaintiff and Appellant.
Williams & Connolly LLP, David E. Kendall and Christian A. Weideman; Jan B. Norman for Defendant and Respondent Hillary Rodham Clinton.
Ryan, Phillips, Utrecht & MacKinnon and Carolyn Utrecht; Jan B. Norman for Defendant and Respondent Hillary Rodham Clinton for U.S. Senate Committee, Inc.
PERLUSS, P. J.
Peter F. Paul appeals from the trial court’s order granting the special motion to strike under Code of Civil Procedure section 425.16 filed by Hillary Rodham Clinton (Senator Clinton) and Hillary Rodham Clinton for U.S. Senate Committee, Inc. (Clinton for Senate) directed to the fifth and fourteenth causes of action for conspiracy to commit fraud in Paul’s first amended complaint. Paul also appeals from the trial court’s order denying his motion for leave to depose Senator Clinton. We affirm.
Statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
1. The First Amended Complaint
After demurrers were sustained to his initial complaint, on March 1, 2004 Paul filed a first amended complaint asserting 17 causes of action, including claims for fraud, conspiracy and unfair business practices, against then-President William Jefferson Clinton, Senator Clinton, national fundraiser for Senator Clinton’s senatorial campaign David Rosen and others. After the trial court sustained demurrers to the first amended complaint, only the fifth and fourteenth causes of action for conspiracy to commit fraud remained against Rosen and Senator Clinton and only the fifth cause of action as to Clinton for Senate.
Paul originally filed a complaint in June 2001, which was dismissed under the fugitive disbarment doctrine while Paul was in Brazil. Paul filed essentially the same complaint on October 14, 2003 after he had been extradited to the United States to stand trial on federal securities charges in connection with the collapse of his company, Stan Lee Media, Inc.
a. Allegations of the Fifth Cause of Action for Conspiracy
The first amended complaint alleged President Clinton, through his agents, falsely promised Paul he would work for Paul’s companies, Stan Lee Media, Inc. and Mondo English, Inc., as a global goodwill ambassador after the President left office in exchange for $10 million of stock in Stan Lee Media, Inc., $5 million in cash, a $1 million contribution to the Clinton Presidential Library and Paul’s agreement to serve as executive producer and underwrite certain costs of the Hollywood Gala Salute to President Clinton (the Hollywood Tribute), an event to raise money for the Democratic Party and Senator Clinton’s senatorial campaign. According to the first amended complaint, Paul had previously co-hosted other events for the Democratic Party and Senator Clinton’s campaign in order to gain access to President Clinton.
The Hollywood Tribute was held on August 12, 2000 and raised almost $1.5 million for Senator Clinton’s campaign. Although Paul had initially agreed to underwrite $525,000 in costs, he alleged he was coerced into funding approximately $1.9 million after costs escalated and another contributor who had pledged $525,000 failed to make any payment. According to Paul’s allegations, Rosen and others had threatened to cancel the event and blame Paul for the embarrassment the Clintons would suffer and told him failure to continue underwriting the event would cause him to lose the funds he had already expended and destroy any opportunity to work with the President.
On August 15, 2000, three days after the Hollywood Tribute, a newspaper reported Paul had served three years in prison for felony convictions in the 1970’s. A spokesperson for Senator Clinton and her campaign was quoted as denying Paul had given or raised any money for the campaign. In another article two days later a spokesperson for Senator Clinton acknowledged Paul had contributed money to Senator Clinton’s campaign, but represented the contribution was only $2,000 and had been returned. Despite the articles, Paul alleged he received repeated assurances from the Clintons and their agents the President would begin working with Paul after he left office.
After Senator Clinton was elected in November 2000, the Clintons ceased all contact with Paul, save for a generic Christmas card. In December 2000 Stan Lee Media began suffering financial setbacks that ultimately led to it filing for bankruptcy. Paul was never contacted by President Clinton about working with him or with Mondo English, Inc., which had continued operating.
In the fifth cause of action for conspiracy, Paul alleged President Clinton never intended to work with Paul after he left office and falsely promised to do so in order to induce Paul to produce and underwrite the Hollywood Tribute. Paul further alleged Senator Clinton, Clinton for Senate and Rosen, the principal coordinator of the event from Senator Clinton’s campaign, conspired with President Clinton and his agents to perpetrate this fraud.
b. Allegations of the Fourteenth Cause of Action for Conspiracy
Paul’s fourteenth cause of action arises out of his hiring of defendant Gary Smith, a producer and friend of the Clintons, to produce the concert portion of the Hollywood Tribute, purportedly at the Clintons’ request made through Rosen. Smith had produced President Clinton’s first inaugural ball and was producing the Democratic National Convention to be held in August 2000. At Paul’s initial meeting with Smith, Smith offered to produce the concert and to provide an edited videotape of it to be completed within one week of the event for a single all-inclusive fee. After Paul protested to Rosen the amount demanded by Smith for this work was excessive, Rosen represented Smith was a close personal friend of Senator Clinton’s and assured Paul the senator would intervene to have Smith lower his fee. The following day Rosen allegedly told Paul Senator Clinton had spoken with Smith and as a result Smith had agreed to reduce his fee by $50,000.
After confirming the fee arrangement with Smith’s attorney, Paul agreed to use Smith and began making payments. However, a few days prior to the Hollywood Tribute, Smith demanded an additional $75,000 as a “personal production fee,” threatening to quit if he did not receive payment. When Paul sought Rosen’s advice concerning Smith’s demand, Rosen told him Senator Clinton would not intervene and to pay the additional fee inasmuch as Smith was vital to the success of the event. Paul did so.
In late October 2000 President Clinton’s agent repeatedly called Paul to obtain the videotape of the concert, stating the Clintons were anxious to receive it so they could send out copies as Christmas gifts and use it to assist in fundraising for the Clinton Presidential Library. Smith, however, had failed to provide the edited videotape of the concert as previously agreed. Paul learned Smith was withholding the unedited masters of the videotape until Paul reimbursed him for additional expenses allegedly incurred in producing the concert. The President’s agent encouraged Paul to pay whatever expenses were necessary to obtain the videotape. Paul retained a lawyer, negotiated the demanded expenses, and eventually agreed to pay Smith $6,100 in exchange for an unedited videotape of the concert.
In the fourteenth cause of action Paul alleged Smith falsely promised Paul he would accept the turnkey fee reduced by $50,000 at Senator’s Clinton’s request to induce Paul to hire him and that Senator Clinton and Rosen conspired with Smith in the fraud.
2. Rosen’s and Senator Clinton and Clinton for Senate’s Anti-SLAPP Motions; the Decision on Appeal
On July 14, 2004 the trial court granted Rosen’s special motion to strike the causes of action directed to him under section 425.16, the anti-SLAPP statute, finding those claims arose from acts in furtherance of the exercise of free speech concerning a matter of public interest and Paul had not shown a reasonable probability of prevailing on the merits because there was no direct evidence tying Rosen to any of the fraudulent acts alleged to have occurred. On September 8, 2004 the trial court denied Senator Clinton and Clinton for Senate’s special motion to strike, filed eight days after Rosen’s motion was granted, on the ground the motion had not been set for hearing within the time required by section 425.16, subdivision (f). Senator Clinton and Clinton for Senate’s appeal of this order was consolidated with Paul’s appeal of the order granting Rosen’s motion.
SLAPP is an acronym for “strategic lawsuit against public participation.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
In Paul v. Clinton (Oct. 18, 2005, B178077) [nonpub. opn.] (Paul I), we affirmed the trial court’s order granting Rosen’s motion and reversed its order denying the motion of Senator Clinton and Clinton for Senate. As to Paul’s appeal of the order granting Rosen’s motion, we held, “Distilled to its essence, Paul’s theory of fraud is that he was duped into making campaign contributions and organizing and funding a major fund raising event. [¶] Accordingly, Paul’s role as an organizer of and contributor to a political fundraiser was part and parcel of and inextricably intertwined with his proposed business relationship with the President. The allegedly false representations (i.e., that the President would work for Paul) went to the heart of that relationship. Smith’s representations also related to the campaign fundraising event. [¶] Rosen was sued for representations he or others made relating to the solicitation of political contributions and the organization of a fundraising event, acts which constituted constitutionally protected speech and conduct.” (Id. at [p. 6-7].)
With respect to Paul’s probability of prevailing on the merits of his fraud claims against Rosen, as to the fifth cause of action we concluded, “Paul adduced no facts showing the President had no intention of working for Paul at the time he promised to do so. Paul’s allegations that the promises were false when made and Rosen knew the promises were false are legal conclusions and not admissible evidence.” (Paul I, supra, B178077 at [p. 13].) We also held, “[E]ven if the President had falsely promised to work for Paul’s companies, Paul adduced no evidence, or evidence supporting a reasonable inference, that Rosen was aware of the alleged wrongful conduct and intended to aid in its commission.” (Id. at [p. 14].) Similarly, with respect to the fourteenth cause of action we held, even if it could reasonably be inferred from the immediacy of Smith’s demand for additional money, coupled with his threat to quit, that Smith made false representations regarding his fee, as Paul alleged, “Paul has again failed to allege facts showing that Rosen was aware the representations were false when made or that he intended to aid in bilking Paul.” (Ibid.)
As to Senator Clinton and Clinton for Senate’s appeal, we held the trial court had misconstrued the statute in finding the motion time-barred because it was not scheduled for hearing within 30 days of its filing: Section 425.16, subdivision (f), requires the hearing be held not more than 30 days after the service, not filing, of the motion unless the docket conditions of the court require a later hearing. Nonetheless, because the motion had been filed more than 60 days after the service of Paul’s first amended complaint -- an additional time requirement imposed by section 425.16, subdivision (f) -- we remanded the matter for the trial court to consider whether it would exercise discretion to permit the late filing of the motion and, if so, whether the hearing on the motion had been timely set with respect to the date of service of the motion. (Paul I, supra, B178077 at [p. 17].)
3. Consideration of Senator Clinton and Clinton for Senate’s Special Motion to Strike after Remand; Paul’s New Evidence of a Federal Election Committee Investigation into the Underreporting of Costs for the Hollywood Tribute
On February 3, 2006, following remand from this court, the trial court exercised its discretion to allow the late filing of Senator Clinton and Clinton for Senate’s motion and directed the parties to submit supplemental briefs concerning the merits of the motion. In his supplemental opposition to the motion Paul submitted documents prepared in connection with a complaint he had filed on July 16, 2001 with the Federal Election Commission (FEC) alleging false reports had been filed relating to his contribution to Senator Clinton’s campaign and seeking a refund of contributions made over the $25,000 soft-money limit. The FEC had found probable cause to believe New York Senate 2000, a political committee that served as the fundraising representative for the committees that participated in the Hollywood Tribute, and its treasurer violated federal law by knowingly failing to report $721,895 in event costs, but found no reason to believe Senator Clinton or Clinton for Senate had violated any laws or regulations in connection with the matter. New York Senate 2000 and its treasurer entered into a conciliation agreement with the FEC on December 29, 2005 to settle the matter.
Paul had originally named New York Senate 2000 as a defendant in the first amended complaint. The trial court dismissed all claims against New York Senate 2000, and Paul did not appeal the dismissal.
The committees that participated in the event included Clinton for Senate, the Democratic Senatorial Campaign Committee and the New York State Democratic Committee.
Paul also moved pursuant to section 425.16, subdivision (g), for an order allowing him to depose Senator Clinton notwithstanding the discovery stay automatically imposed upon filing a special motion to strike.
On April 7, 2006 the trial court granted Senator Clinton and Clinton for Senate’s special motion to strike the fifth and fourteenth causes of action and denied Paul’s February 9, 2006 motion for leave to depose Senator Clinton. The court concluded Paul had failed to submit any evidence indicating Senator Clinton had made any promises to him. “As was the case with Rosen the most he can show is that promises were made by other people and those promises were never performed. Even assuming plaintiff can show the promises were made with the intent not to perform, there is nothing to indicate Hillary Clinton was aware that the promises were not made in good faith.”
CONTENTIONS
Paul contends, notwithstanding our holding in Paul I that the fifth and fourteenth causes of action arose from constitutionally protected activity, his claims against Senator Clinton and Clinton for Senate do not arise from constitutionally protected campaign fundraising activity and, in any event, Senator Clinton and Clinton for Senate’s solicitation and reporting of contributions from Paul were illegal as a matter of law and thus not constitutionally protected. Paul also contends the evidence submitted with his supplemental opposition papers demonstrates he has a reasonable probability of prevailing on his claims. Finally, Paul contends the trial court abused its discretion in not granting his motion for leave to depose Senator Clinton before deciding the special motion to strike the fifth and fourteenth causes of action.
DISCUSSION
1. Section 425.16: The Anti-SLAPP Statute
Section 425.16 provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) In ruling on a defendant’s motion under section 425.16, the trial court engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘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,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).) “‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.’” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
Under the statute an “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (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; (4) or 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.” (§ 425.16, subd. (e).)
In terms of the so-called threshold issue, the moving party’s burden is to show “the challenged cause of action arises from protected activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 616, fn. 10.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, 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. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e) . . . .’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
Once the defendant establishes the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) “[T]he plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
We review the trial court’s rulings on an anti-SLAPP motion independently under a de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.)
2. The Trial Court’s Ruling on the Special Motion To Strike Was Proper
a. Paul’s claims for conspiracy to commit fraud arise from protected First Amendment activity
In Paul I we held Paul’s claims for conspiracy to commit fraud asserted against Rosen arose out of constitutionally protected political speech and conduct. Senator Clinton and Clinton for Senate argue that ruling is binding on Paul under principles of law of the case or collateral estoppel and precludes his argument in this appeal that his claims do not arise from protected activity within the purview of section 425.16. Paul, on the other hand, contends neither doctrine is applicable because new, “completely different” evidence in the record demonstrates his claims arise from activities unrelated to Senator Clinton’s campaign. (See, e.g., People v. Barragan (2004) 32 Cal.4th 236, 246 [“an appellate court’s binding legal determination ‘controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based’”].) Specifically, in a supplemental declaration submitted in opposition to the special motion to strike, Paul recounts, among other things, a June 9, 2000 conversation with Senator Clinton in which she told Paul she would discuss his proposed business offer, including his commitment to contribute to Senator Clinton’s campaign, with the President; Senator Clinton’s friendly treatment of Paul at, and following, the Hollywood Tribute; Senator Clinton’s involvement (through Rosen) in enabling Tendo Oto, a foreign national and business associate of Paul’s, to attend the Hollywood Tribute in circumvention of an FEC ban and to sit behind the Clintons; and Oto’s attendance at a state dinner after which Oto was given a special tour of the White House and allowed to be photographed in the President’s chair.
Under the law of the case doctrine “a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case.” (Davies v. Krasna (1975) 14 Cal.3d 502, 507; People v. Barragan (2004) 32 Cal.4th 236, 246 [“when an appellate court ‘“states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case’s] subsequent progress, both in the lower court and upon subsequent appeal”’”].) However, in general the doctrine is only “‘determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, italics added.)
“Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) The doctrine applies only if the decision in the initial proceeding was final and on the merits and the issue sought to be precluded from relitigation is identical to that decided in the first action and was actually and necessarily litigated in that action. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) In addition, the party against whom preclusion is sought must be the same as, or in privity with, the party to the first action. (Ibid.) “Although a second action between the parties on a different cause of action is not barred by res judicata, nevertheless ‘. . . the first judgment “operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.”’” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 346.)
Whether or not the law-of-the-case or collateral estoppel doctrines are applicable, nothing about the supplemental evidence submitted by Paul warrants a conclusion different from the one we reached in Paul I regarding the applicability of section 425.16 to his fraud (and conspiracy to commit fraud) claims. Paul’s supplemental declaration confirms that, regardless of whether Senator Clinton’s conspiratorial actions differed from Rosen’s, her participation in the alleged fraudulent scheme was, just like Rosen, in furtherance of raising money for her senatorial campaign, the protected activity identified in Paul I: “During the time Mrs. Clinton and I spent together on June 9, 2000, our wide-ranging discussion included different aspects of using my support for her Senate Campaign as a means to get to know the President and his family, with a view towards working together when he left the White House.” “At the conclusion of the time we spent together that day, Mrs. Clinton personally assured me she would specifically discuss with her husband, the President, my interest in making a post-White House business proposal to him. She told me her understanding that such a proposal would include my offer of substantial support for her Senate campaign as a good-faith advance on the business arrangement we would be agreeing to.” Indeed, it would be surprising if Senator Clinton had not been friendly and accommodating towards Paul in connection with and immediately after the Hollywood Tribute given his substantial role in the event.
Although Paul alleged in the first amended complaint he spent approximately $1.9 million on the Hollywood Tribute, the FEC investigation determined the cost of the event, including in-kind contributions, was slightly more than $1.2 million.
With respect to his fourteenth cause of action alleging Senator Clinton conspired with Smith to defraud Paul of an additional fee for Smith’s services, Paul asserts our decision in Paul I did not consider whether Smith’s activities “were limited to those of a commercial vendor for hire” and argues we should examine the new evidence he submitted demonstrating Senator Clinton’s knowledge of, and participation in, the scheme to defraud Paul. While the capacity in which Smith was hired and the scope of the job he performed may be relevant to the question whether Paul’s claims against Smith arose from Smith’s exercise of his First Amendment rights (see Scott v. Metabolife Intern., Inc. (2004) 115 Cal.App.4th 404 [personal injury claims against supplement manufacturer arose out of manufacturing and selling of defective product, not protected activity; false advertising claim did not concern an issue of public importance]), these considerations are not relevant to the analysis of Paul’s claims against Senator Clinton. All of the allegedly wrongful action Senator Clinton took was to ensure the Hollywood Tribute successfully proceeded -- whether it was encouraging Paul to produce the event so he could enhance his chance of entering into a business relationship with President Clinton or helping Smith convince Paul to hire him at a fee Smith never intended to honor. As a result, Paul’s fourteenth cause of action, like his fifth, “arise from” Senator Clinton’s involvement in the campaign fundraising event, protected First Amendment activity.
b. Paul’s claims are not based on asserted protected activity that is “illegal as a matter of law”
Section 425.16 “cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 317.) A contrary rule “would be inconsistent with the purpose of the anti-SLAPP statute” and “would eviscerate the first step of the two-step inquiry set forth in the statute if the defendant’s mere assertion that his underlying activity was constitutionally protected sufficed to shift the burden to the plaintiff to establish a probability of prevailing where it could be conclusively shown that the defendant’s underlying activity was illegal and not constitutionally protected.” (Ibid.) If the defendant has not conceded nor has the evidence conclusively established the defendant’s acts underlying the complaint were illegal as a matter of law, “then the claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff’s burden to provide a prima facie showing of the merits of the plaintiff’s case.” (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on other grounds in Equilon Enterprises, supra,29 Cal.4th at p. 68, fn. 5; see Flatley, at p. 320 [when “the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action”]; City of Los Angeles v. Animal Defense League, supra, 135 Cal.App.4th at p. 621.)
Paul contends the new evidence in the record regarding his FEC complaint demonstrates Senator Clinton and Clinton for Senate engaged in conduct that was illegal as a matter of law, precluding their use of section 425.16 in this case. Paul’s argument suffers from multiple flaws. First, the FEC found only probable cause that New York Senate 2000 and its treasurer had violated federal law before the matter was settled, a finding insufficient to trigger the Flatley illegal-as-a-matter-of-law principle. Moreover, the FEC “found no reason to believe [Senator Clinton or Clinton for Senate] violated the Act or Commission regulations in connection with this matter.” Second, any illegal underreporting of costs in connection with the Hollywood Tribute is wholly unrelated to the conduct underlying Paul’s claims -- the President’s alleged false promise and Senator Clinton’s purported encouragement made to mislead him into underwriting the Hollywood Tribute. Even if some aspect of Senator Clinton’s campaign fundraising unrelated to Paul’s claims -- occurring after the conduct of which he complains occurred -- were illegal and that illegality could be imputed to Senator Clinton and Clinton for Senate, these defendants are not barred from obtaining the benefit of section 425.16’s right to an early evaluation of Paul’s claims arising from their constitutionally protected activity. (See Taus v. Loftus (2007) 40 Cal.4th 683, 712 [in deciding whether on special motion to strike moving party has made threshold showing that challenged conduct arises from protected activity, trial court must evaluate whether “defendants’ general course of conduct from which plaintiff’s cause of action arose” was in furtherance of lawful free speech activities in connection with a public issue]; Flatley v. Mauro, supra, 39 Cal.4th at p. 333 [section 425.16 does not apply “because the activity forming the basis of [defendant’s] motion to strike [plaintiff’s] action was extortion as a matter of law and, therefore, not constitutionally protected activity for purposes of section 426.15”]; see also Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1366 [Legislature did not intend “to give defendants section 425.16 protection from a lawsuit based on injuries they are alleged to have caused by their illegal campaign money laundering scheme”].)
In addition to his purported evidence regarding Senator Clinton and Clinton for Senate’s violations of federal law regulating the reporting of campaign contributions, Paul argues he “has now identified a far more direct basis for demonstrating [Senator Clinton’s] conduct was not protected by the First Amendment” and asserts we may consider for the first time on appeal his new, “purely legal theory” that Senator Clinton’s solicitation of more than $1.2 million in campaign contributions exceeded the maximum allowable contribution of $2,000 and was therefore illegal as a matter of law. (2 U.S.C. §§ 441a(a)(1)(A) [“no person shall make contributions [¶] . . . to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $2,000”], 441a(a)(7)(B)(i) [“expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestions of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”].) Once again Paul’s argument is fatally flawed.
First, whether Senator Clinton or Clinton for Senate improperly solicited campaign contributions is not a purely legal question that can be determined based on the uncontroverted evidence already in the record and, therefore, is not an issue we should (or can) decide for the first time on appeal. (See Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417; Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6.) In fact, the record as presented to us strongly suggests Senator Clinton’s and Clinton for Senate’s conduct was perfectly legal. In connection with the investigation into Paul’s FEC complaint, the FEC authorized a limited audit “to clarify uncertainties regarding the total amount of contributions and how those contributions were allocated and distributed, in order to determine whether any of the participating committees made or accepted excessive contributions. . . . The audit did not focus on the unreported costs that are the subject of this report.” General counsel for the FEC concluded, and the FEC agreed, neither Clinton for Senate nor Senator Clinton “accepted[ed] any ‘advancements’ of prohibited or excessive funds from the other participants, or from any other sources in connection with the August 12, 2000 event. See 2 U.S.C. §§ 441a(f) [‘[n]o candidate or political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of this section’] and 441b(a); 11 C.F.R. § 102.17(b)(3)(ii).” General counsel also stated, “Although Paul suggested in his complaint that he may have made ‘illegal contributions’ in connection with the event, the audit and investigation have indicated otherwise. Based on the allocation method used by [New York Senate 2000], which we have determined was appropriate, Paul’s in-kind contributions were all legally accepted by the [Democratic Senatorial Campaign Committee’s] non-federal account.”
Paul argues the FEC’s findings are not dispositive because his complaint never made reference to title 2 United States Code section 441a(a)(7)(B)(i), the key campaign finance code section now at issue; the FEC never considered whether Paul’s in-kind contributions had to be considered contributions to Senator Clinton’s campaign; and the FEC audit was limited to examining the allocation of fundraising costs. A plain reading of the FEC documents, however, belies Paul’s contention the FEC did not consider whether contributions were properly distributed to the event participants. Those documents considered together with Paul’s other evidence, both in the record and the new evidence he belatedly seeks to have this court admit on appeal, purportedly demonstrating his in-kind contributions were solicited for Senator Clinton’s campaign, not for New York Senate 2000, at a minimum raise a controverted fact issue that necessarily means the conduct at issue was not “illegal as a matter of law.” Accordingly, this case does not present “the narrow circumstances in which a defendant’s assertedly protected activity could be found to be illegal as a matter of law and therefore not within the purview of section 425.16.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 315.)
Without citation to the record, Paul contends the audit was limited to determining whether the participating committees for the Hollywood Tribute had followed the requirements of 11 Code of Federal Regulations section 106.6, in particular, subdivision (d) regarding “Method for allocation direct costs of fundraising” and determined that they had. It is not our job to scour the record to determine if unsupported assertions are true. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 [“it is counsel’s duty to point out portions of the record that support the position taken on appeal”; “[t]he appellate court is not required to search the record on its own seeking error”]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [it is not the proper function of Court of Appeal to search the record on behalf of appellants or to serve as “backup appellate counsel”].) This principle is especially pertinent here where the documents appear to contradict Paul’s unsupported assertion.
Because it would be inappropriate for us to decide on appeal whether Senator Clinton or Clinton for Senate violated federal law in connection with the solicitation of Paul’s in-kind contributions, Paul’s motion to admit a videotaped recording of a July 17, 2000 telephone call among Paul, Stan Lee and Senator Clinton in which they discuss the Hollywood Tribute and his request for judicial notice related to this issue are denied.
In fact, the FEC was aware of New York Senate 2000’s participation in the Hollywood Tribute to permit increased contributions. The general counsel’s brief stated that Terry New, a fundraising consultant on previous New York Senate 2000 and Clinton campaign events, recalled a meeting at Paul’s house to discuss the Hollywood Tribute during which “Rosen advised . . . that [New York Senate 2000] rather than Clinton for Senate should hold the event, in light of the opportunities for stepped-up contribution limits and larger in-kind contributions.”
Second, Paul’s new theory of illegality, even if it were conclusively demonstrated, is not sufficiently related to his fraud claims to preclude Senator Clinton and Clinton for Senate’s use of section 425.16 under Flatley v. Mauro, supra, 39 Cal.4th at page 315. As Paul concedes, there is no allegation in the fifth or fourteenth causes of action that the contributions solicited from Paul exceeded campaign contribution limits. Nor is the alleged illegal solicitation of campaign contributions the basis for Paul’s fraud claims. (Cf. Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [“plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action’”]; Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p. 414 [“when allegations of nonprotected activity are incidental or collateral to a plaintiff's claim challenging primarily the exercise of the rights of free speech or petition, they may be disregarded in determining whether the cause of action arises from protected activity”].)
Prior to the filing of their special motion to strike, the trial court sustained without leave to amend Senator Clinton and Clinton for Senate’s demurrer to the sixth through tenth causes of action in Paul’s first amended complaint, in part on the ground the allegations in those claims that Rosen had falsely represented that Senator Clinton and Clinton for Senate would accurately report Paul’s campaign contributions “would of necessity require this court to interpret the Federal Election Campaign Act, something that is reserved to the Federal Courts.”
c. Paul did not establish a probability he would prevail on his claims
“[T]o support a claim of fraud based upon the alleged failure to perform a promise, it must be shown that the promisor did not intend to perform at the time the promise was made.” (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 157; see Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [promise made in good faith, even though not carried out, does not constitute fraud].) Although fraudulent intent must often be established by circumstantial evidence, the circumstantial evidence must nevertheless be sufficient to support such an inference. (See Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30 “fraudulent intent must often be established by circumstantial evidence”; “for example, . . . fraudulent intent has been inferred from such circumstances as defendant’s insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform”].)
While Paul’s claims are for conspiracy to commit fraud, civil conspiracy is not an independent cause of action, but a mechanism for spreading liability; thus, a plaintiff must show some other underlying tort or civil wrong was committed. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574 [“‘[T]here is no separate tort of civil conspiracy, and there is no civil action for conspiracy to commit a recognized tort unless the wrongful act itself is committed and damage results therefrom’”].)
In Paul I we held Paul had not established a probability he would prevail on his fifth cause of action for conspiracy to commit fraud asserted against Rosen because “[he] adduced no facts showing the President had no intention of working for Paul at the time he promised to do so. . . . Even though there was no contact after the November election, that was four months after the promise and the President was not due to start work until after he left office in January. Moreover, soon after the election, Paul was a fugitive from justice. Part of the President’s compensation package was stock in Stan Lee Media, a company which declared bankruptcy just after the President left office. Thus, different circumstances prevailed at the time the promise to work for Paul was broken than when it was made.” (Paul I, supra, B178077 at [pp. 13-14].)
Paul has not proffered any evidence warranting our departure from this conclusion. Much of Paul’s evidence is simply irrelevant to whether President Clinton’s alleged promise to work with Paul was false when made. The least tangential argument Paul makes is that Senator Clinton’s disavowal of Paul’s contribution to the Hollywood Tribute in newspaper articles following the event demonstrates the President could never have had any genuine interest in a business arrangement with someone with Paul’s checkered past. This circumstantial evidence is far too attenuated to support an inference of President Clinton’s fraudulent intent. Even if President Clinton had been aware of Paul’s prior felony convictions at the time he made his promise, the President may have very well intended to proceed with what was a lucrative business proposition for him only if Paul’s criminal history remained out of the public eye. As Paul himself asserts to explain why it was reasonable for him to believe President Clinton was sincere in his promise, Paul had been a guest to the White House in 1994 and other public figures had willingly collaborated with Paul in high-profile events and activities. Whether Senator Clinton responded to media reports after the event about Paul’s convictions in a manner calculated to protect her image in a hotly contested political campaign does not bear on President Clinton’s intent at the time the promise was made. Additionally, consistent with purported assurances made to Paul after the media fray had passed that the deal was still on, President Clinton may have intended to work with Paul after the election when the heightened scrutiny would have passed, but was ultimately dissuaded by the collapse of Stan Lee Media and Paul’s fugitive status.
In his supplemental declaration Paul contends he produced four events for President Reagan, one while he was President. He also attached as exhibits photographs of him with Presidents Nixon, Ford, Carter and Reagan and a number of other high profile political figures.
With respect to the fourteenth cause of action, Paul contends Smith’s fraudulent intent and Senator Clinton’s awareness of it is demonstrated by Senator Clinton’s failure to intervene when Smith demanded an additional $75,000 a few days before the event and her longstanding friendship with Smith. This is insufficient circumstantial evidence for Paul to carry even the minimal burden on a special motion to strike: “Mere knowledge, acquiescence, or approval of an act, without cooperation or agreement to cooperate is insufficient to establish liability.” (Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1069.) Moreover, “‘“[c]onspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy.”’” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.)
3. The Trial Court Did Not Abuse Its Discretion in Denying Paul’s Motion for Leave To Depose Senator Clinton
The trial court may permit limited discovery “for good cause shown” notwithstanding the discovery stay imposed after a motion to strike has been filed. (§ 425.16, subd. (g); see Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 190.) “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 section 425.16, subdivision (g) to be ‘liberally exercise[d].’ [Citation.] Discovery may not be obtained merely to ‘test’ the opponent’s declarations.” (1-800 Contacts, Inc. v. Steinberg (2003)107 Cal.App.4th 568, 593.)
Section 425.16, subdivision (g), provides, “[a]ll discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”
The trial court did not abuse its discretion in denying Paul’s motion for leave to depose Senator Clinton. (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593 [abuse of discretion standard applied to trial court’s denial of motion for leave to depose defendant]; Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247 [same].) Paul did not offer any explanation as to what specific facts he expected to uncover by examining Senator Clinton. Instead, acknowledging he did not have direct evidence supporting his claims, he argued the proposed discovery would reveal information regarding Senator Clinton’s personal knowledge of the first amended complaint’s allegations. In light of such an overly broad and general justification for the motion -- what the trial court aptly described as a “fishing expedition” undermining the purpose of section 425.16 “‘to prevent SLAPPs by ending them early and without great cost to the SLAPP target’” (Equilon Enterprises, supra, 29 Cal.4th at p. 65) -- the court’s denial of Paul’s motion was not “‘an arbitrary, capricious, or patently absurd determination.’” (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 301.)
In his motion to admit new evidence Paul also seeks to admit the videotaped recording of the July 17, 2000 telephone call to demonstrate Senator Clinton had sufficient knowledge of Paul’s business enterprises and the President’s involvement with Paul such that it would not have been a “fishing expedition” to depose her. While the recording itself may have only been recently obtained by Paul, the substance of the conference call is not new evidence.
DISPOSITION
The orders granting Senator Clinton and Clinton for Senate’s motion to strike and denying Paul’s motion for leave to depose Senator Clinton are affirmed. Senator Clinton and Clinton for Senate are to recover their costs on appeal.
We concur: WOODS, J. ZELON, J.