Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C06-02073
NEEDHAM, J.
Richard T. Abbate and Edward J. Meyers appeal from an order awarding attorney fees to respondent, based on the court’s finding that appellants’ anti-SLAPP motion to strike was frivolous or intended solely to cause unnecessary delay. (Code Civ. Proc., § 425.16, subd. (c).) Appellants contend the court failed to make sufficiently specific factual findings in its order. They further contend the record does not support the finding that their motion was frivolous or intended to cause unnecessary delay. We will affirm the order.
Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
I. FACTS AND PROCEDURAL HISTORY
By way of overview, respondent Santa Clara County Correctional Peace Officers Association, Inc. (Association) sued appellants Abbate and Meyers for amounts appellants allegedly disbursed from the Association without the required authorization. Abbate and Meyers filed a motion to strike the complaint (and amended complaint) pursuant to the anti-SLAPP statute. (§ 425.16.) The trial court denied the motion, and in a prior appeal we affirmed the order. After remand, the Association filed a motion for sanctions against Abbate and Meyers for filing a frivolous anti-SLAPP motion. (§ 425.16, subd. (c).) The trial court granted the motion, and it is from this latter order that Abbate and Meyers now appeal.
A. Background
Because our analysis requires consideration of the merits of appellants’ anti-SLAPP motion to strike, we set forth relevant excerpts from our earlier opinion. (Santa Clara County Correctional Peace Officers Association, Inc. v. Abbate, (February 25, 2008, A117346) [nonpub. opn.] (Abbate I).)
“The Santa Clara County Correctional Peace Officers Association (Association) is a non-profit mutual benefit corporation that acted as a union representing employees of the Santa Clara County Department of Correction. Abbate was elected president of the Association in 1992. By 1993, Meyers was its treasurer.
“[1]. Abbate’s and Meyers’ Activities
“Over the next several years, with Abbate as president and Meyers as treasurer, the Association engaged in efforts to obtain independent bargaining authority and law enforcement powers for correctional officers....
“[2]. New Administration and Financial Investigation
“In 2003, Abbate ran again for Association president and was defeated by Everett Fitzgerald (Fitzgerald).... [¶] After taking office, Fitzgerald noticed possible irregularities in the Association’s financial records and an unusually large number of checks issued to Abbate and Meyers. He appointed a committee to investigate. Upon reviewing the Association’s records from 1994 through 2004, the committee discovered that appellants had paid to themselves substantial sums in violation of the Association’s bylaws or without proper documentation.
“In particular, based upon a review of Association bank records, general ledger, and other financial reports, as well as the expense report files for Association officers and directors and the minutes of the meetings of the board of directors and the membership, the committee determined that: appellants failed to provide complete expense reports to justify the amounts paid to them for reimbursement of expenses; appellants paid to themselves substantial amounts described as ‘release time,’ which had not been authorized; at least 25 checks totaling approximately $65,000 had been issued to Meyers and bore the signature of Meyers or Abbate only, in violation of the Association bylaw requiring two signatures; credit card payments had been made on appellants’ behalf without documentation; and appellants paid themselves amounts in excess of budgeted and approved stipends and reimbursement....
“[3]. Association Lawsuit Against Abbate and Meyers
“The Association filed a complaint against appellants in October 2006 for ‘fraud/conversion,’ breach of fiduciary duty, and an accounting, seeking to recoup the amounts allegedly taken from the Association.
“In December 2006, appellants filed a special motion to strike the complaint under the anti-SLAPP provisions of [section 425.16]. Appellants contended that the Association’s causes of action arose from appellants’ union activity and that the challenged expenditures had been reported in the Association’s records.
“In January 2007, the Association’s ‘FIRST AMENDED COMPLAINT FOR MONEY’ added common counts to the causes of action previously asserted. Like the original complaint, the first amended complaint essentially sought compensation for the amounts appellants purportedly took from the Association without authorization. The first cause of action for ‘fraud/conversion’ alleged: ‘During the period between 1994 and 2004, [appellants], while acting in their capacities as President and Treasurer of [the Association], took monies from [the Association’s] bank account(s) and/or improperly made payments on [appellants’] personal credit cards with [the Association’s] funds, and converted said funds to their own use. [The Association] is unaware of the exact amounts converted, but believes that the amounts converted on behalf of [appellant Abbate] exceeded $544,000, and the amounts converted on behalf of [appellant] Meyers exceeded $486,000.’ The first cause of action further alleged: ‘Prior to the commencement of this action, [the Association] made demand upon the [appellants] for an accounting and for repayment of any amounts taken, but [appellants] have failed and refused to return any portion of said funds or to account for the payments made to them from [the Association’s] funds.’
“The remaining causes of action sought similar relief under other legal theories. In their second cause of action, the Association alleged that appellants’ conduct constituted a breach of their fiduciary duties. The third cause of action sought an accounting, based largely on the following: ‘[The Association] is informed and believes and on that basis alleges that [appellants] made disbursements to themselves and to each other from [the Association’s] funds far in excess of any amounts that may have been actually owing or due to [appellants]. [The Association] further is informed and believes and on that basis alleges that [appellants] failed to obtain authorization for any such disbursements from the [Association] Board of Directors, that [appellants] did not fully inform the [Association] Board of Directors of the nature and extent of the alleged expenses for which they sought payment, and that monies are due and owing to [the Association] by [appellants].’ The fourth and fifth causes of action asserted common counts against appellants based on allegations akin to those asserted elsewhere in the first amended complaint.
“The Association also opposed appellants’ anti-SLAPP motion to strike, which was apparently deemed to be asserted against the first amended complaint as well as the original complaint. Accompanying the Association’s memorandum of points and authorities were declarations from Fitzgerald and two members of the committee that had investigated the financial irregularities, Antonio Richardson and Timothy Davis. These declarations detailed the committee’s findings (summarized ante) and attached copies of the subject checks and expense reports as exhibits. Abbate and Meyers filed reply papers in support of the motion to strike. After a hearing, the trial court denied the motion.”
B. Abbate I
In appeal number A117346, we affirmed the court’s order denying appellants’ motion to strike. We first set forth the applicable analysis: “In its motion, the defendant must make a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. [Citation.]... [¶]... ‘The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.’ [Citation.]”
We then explained why appellants had failed on both prongs of the analysis:
“[1]. Arising From Protected Activity
“As mentioned, appellants were required to make a prima facie showing that the causes of action in the Association’s first amended complaint arose from appellants’ free speech or petition activity. (See § 425.16, subd. (e)(4) [defining protected activity to include ‘any... 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.’].)
“Appellants argue that the Association’s claims arose from their free speech and petition activity, because the claims target appellants’ actions in using the Association treasury in their campaign to obtain law enforcement powers for the Association’s members. They note that Government Code section 3502 protects the rights of public employees to participate in union activities, and they claim that a union’s right to conduct its activities, and the use of union funds to engage in those activities, is constitutionally protected. Further, appellants point out, the expenditures challenged by the Association included reimbursement to appellants for their payment to a registered lobbyist and media consultant, who had helped the Association members obtain law enforcement status. On this basis, appellants contend: ‘The claims against [appellants] arose from their expenditure of union funds to support [appellants’] efforts as union officers to obtain peace officer powers for their represented bargaining unit, the Santa Clara County Correctional Officers, in a very prolonged and public controversy. As such, whether justified or not, the expenditures which are the subject of the complaint arose out of [appellants’] protected activity.’
“We disagree. The Association’s first amended complaint does not challenge appellants’ lobbying or other union activities. Nor does it contend that appellants should not have spent Association funds for union purposes or union activities. Instead, the Association’s causes of action, and the evidence submitted by declaration, contend that appellants took money for themselves, without proper documentation orauthorization by the Association. [Italics in original.] The gravamen of the Association’s complaint is therefore not directed at or based upon protected activity. We do not accept appellants’ implicit proposition that, because they now insist the funds were spent to further union activities, the Association’s attempt to challenge the veracity of this assertion or recoup funds that were spent without authority or approval is limited by the anti-SLAPP statute. [Footnote omitted.]
“Appellants cite Service Emp. Intern. Union v. Fair Political Prac. Com’n (1992 9th Cir.) 955 F.2d 1312, for the proposition that the financing of campaigns has been held to impact First Amendment rights. In that case, the court observed that the act of contributing money to a political campaign is an act of political association protected by the First Amendment, and it ruled that contributors to political campaigns therefore had standing to challenge a law imposing campaign contributions. Nothing in the case suggests that California’s anti-SLAPP statute protects union leaders for unauthorized expenditures. Nor does it suggest that union leaders have a constitutional right to divert funds from their union.
“Appellants also suggest that the Association’s first amended complaint was motivated by Abbate’s prior political activities and constitutes an effort to dissuade Abbate and others from continuing more of the same. However, in determining whether a cause of action arises from an act in furtherance of protected activity, the question is not whether the plaintiff filed the lawsuit because of or in retaliation for protected activity, but whether the cause of action is based upon protected activity: ‘That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.’ (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [anti-SLAPP motion should not have been granted where city’s declaratory relief action in state court arose from a controversy over the validity of an ordinance that prompted federal litigation, not from the filing of the federal litigation itself].) The Association’s decision to file its lawsuit may have been prompted by appellants’ political positions, but the claims are not based on, and do not arise from, constitutionally protected activities.”
“[2]. Probability of Prevailing
“Even if appellants had established that the Association’s first amended complaint arose from appellants’ protected activity, they could not prevail on their anti-SLAPP motion because the Association established a probability of prevailing on its claims.
“The declarations submitted on the Association’s behalf summarized the findings of the investigation of the apparent financial irregularities involving appellants. The committee members discovered that appellants paid to themselves substantial sums in violation of the Association’s bylaws and without proper documentation. For example, the general ledger reflected a number of transactions by which appellants were paid for ‘Release Time’ -- time taken by a union official away from his duties as a correctional officer to prepare grievances or address other union matters -- in addition to their regular salaries, without proper approval. The committee found at least 25 checks issued to Meyers bearing only one signature, contrary to the Association bylaw that requires checks to be signed by two officers. In further violation of the bylaws, appellants purportedly made unbudgeted expenditures without prior approval by the membership, including payments on stipends and expense reimbursement requests. This evidence demonstrates a prima facie case of the Association’s claims, including fraud, conversion, and breach of fiduciary duty.
“Appellants dispute the evidence submitted by the Association. For instance, they argue that the checks bearing only one signature show no evidence of negotiation and leave open the possibility that another Association officer endorsed the check on the back. They also urge that all of the allegedly unauthorized or improper expenditures were made by check and were reflected in the Association’s general ledger and other accounting records. By these contentions, appellants perhaps demonstrate that the Association’s assertions are subject to dispute, but they do not establish that the Association failed to make a prima facie case or that the Association is barred from recovery as a matter of law. Appellants’ arguments are therefore insufficient. [Citation.]
“Appellants’ statute of limitations arguments fare no better. They maintain that the Association’s fraud and conversion claims are barred by the three-year statute of limitations (Code Civ. Proc., § 338, subd. (c), (d)), because the lawsuit was filed in October 2006, Abbate has not been an officer since 2001, and Meyer’s last questioned transaction was in May 2003. While the Association presented evidence that the wrongdoing was not discovered until at least 2004, and it argues that the wrongdoing could not have been discovered earlier due to appellants’ control, deceit and concealment, appellants counter that the alleged wrongdoing could have been discovered sooner because every expenditure was reported in the general ledger and accounting records of the Association. Again, appellants merely establish a disputed question of fact, and they have not shown that the Association’s causes of action are time-barred as a matter of law.
“Lastly, appellants contend that the Association’s lawsuit is barred by section 903 of the Association’s bylaws. Section 903 provides that ‘all unresolved complaints about actions of the Board of Directors alleged to be inconsistent with the requirements of these By-Laws or the California Corporations Code shall be resolved by final and binding arbitration,’ which must be filed within 30 days after the alleged act or omission. However, appellants have not established by competent evidence that all of the alleged wrongdoing would have been subject to section 903 as ‘actions of the board of directors’ (as opposed to acts of Meyers or Abbate), or that section 903 would provide the exclusive remedy for appellants’ alleged wrongdoing.
“In sum, the Association demonstrated a probability that it would prevail on its claims within the meaning of the anti-SLAPP statute. The trial court did not err in denying appellants’ special motion to strike.”
Abbate and Meyers filed a petition for rehearing, which we denied. Abbate and Meyers then filed a petition for review in the California Supreme Court, which was also denied.
C. Proceedings After Remand
After remand to the trial court, the Association filed a motion for attorney fees and costs under section 425.16, subdivision (c), and section 128.5. Abbate and Meyers opposed the motion, and the Association filed reply papers.
The trial court issued a tentative ruling. In that ruling, the court found that “the special motion to strike was frivolous or was solely intended to cause unnecessary delay,” citing Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388. The court explained: “The First Amended Complaint does not challenge Defendants’ lobbying or other union activities. Nor does it contend that Defendants should not have spent Association funds for union purposes or union activities. Instead, the Association’s causes of action, and the evidence submitted by declaration, contend that Defendants took money for themselves, without proper documentation or authorization by the Association.” The court further noted that the Association was required to respond to appellants’ appeal, petition for rehearing, and request for review by the California Supreme Court.
A hearing on the motion for fees and costs took place on September 23, 2008. The court gave the parties additional time to file supplemental briefs and declarations as to the amount of attorney fees attributable to the anti-SLAPP motion. The Association and appellants filed supplemental papers in October and November.
On December 29, 2008, the trial court issued a written order granting fees as sanctions in the amount of $21,002.60. As relevant here, the order read: “the Motion for Attorney’s fees and costs is granted and fees in the amount of $21,002.60 are awarded in favor of Plaintiff and against Defendants.”
An order awarding attorney fees as a sanction under section 425.16, subdivision (c), for filing a frivolous anti-SLAPP motion is immediately appealable if the award is greater than $5,000. (§ 904.1, subd. (a)(10), (12).)
II. DISCUSSION
In pertinent part, section 425.16, subdivision (c) provides: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to plaintiff prevailing on the motion, pursuant to Section 128.5.”
Thus, “[a]n award of sanctions under the anti-SLAPP statute has two elements. First, the trial court must make a finding that the SLAPP motion was frivolous or brought solely to delay the proceedings. Second, the court must follow the procedural requirements for a sanction order set out in section 128.5 which requires, among other things, the order ‘shall recite in detail the conduct or circumstances justifying the order.’ Failure to satisfy both these elements renders the order invalid.” (Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 682.) Appellants challenge the court’s order as to both of these elements. We address them in turn.
A. Findings To Support Order
The trial court must “‘recite in detail the conduct or circumstances justifying the order’” of sanctions under section 425.16, subdivision (c). (Morin, supra, 122 Cal.App.4th at p. 682; see § 128.5, subd. (c).) “The court’s written order ‘should be more informative than a mere recitation of the words of the statute.’” (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392, superseded by statute on other grounds, Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348-1349.)
Appellants contend the court did not set forth the circumstances justifying the order in adequate detail. The argument is unavailing, because it is waived and meritless.
1. Waiver
The failure to object to the lack of specificity in a sanctions order waives the argument on appeal. (Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1043-1044 [appellants’ failure to object to specificity of the order, when they had an opportunity to review the proposed order before the court signed it, precluded their argument on appeal].) Although in this matter the court issued its written order without appellants having the opportunity to review it, appellants could have objected to the purported lack of specificity in the order after it was issued, so that the court could have corrected any purported deficiency on its own, rather than standing mute until the matter was before this court. Appellants’ failure to bring the purported deficiency to the trial court’s attention precludes relief in this court.
2. The Court’s Findings Were Adequate
Even if appellants had not waived the issue, their argument fails on the merits. While the court’s written order granting the motion and awarding attorney fees did not itself include any express findings to support the conclusion that appellants’ anti-SLAPP motion was frivolous or interposed solely to cause delay, the record plainly and adequately sets forth the court’s basis for the order.
The specificity requirement does not invalidate a sanctions order if the record otherwise informs the appellant and this court of the basis for the order. As the court stated in Olson Partnership v. Gaylord Plating Lab, Inc. (1990) 226 Cal.App.3d 235 (Olson): “Appellant’s primary assertion of error is that the court failed to specify in writing its reasons for imposing sanctions as required by [section 128.5]. We reject this contention because to do otherwise is to honor form over function. The purpose of the statement of reasons in the court order is to insure that the offending party has sufficient notice of the grounds of the imposition of sanctions in order to allow him or her to argue against these grounds upon appeal. This requirement also allows this court to engage in a meaningful review of the sanctions award. [Citation.] [¶] Here, the record repeatedly informs both appellant and this court of the grounds for the court’s order.” (Id. at pp. 240-241.)
In Olson, the specificity requirement was met because the reporter’s transcript of the hearing and the minute order – which appellant purportedly had not received – showed the court’s reasoning. In the matter before us, the court’s reasoning was shown in the court’s tentative ruling, which explained: “The First Amended Complaint does not challenge Defendants’ lobbying or other union activities. Nor does it contend that Defendants should not have spent Association funds for union purposes or union activities. Instead, the Association’s causes of action, and the evidence submitted by declaration, contend that Defendants took money for themselves, without proper documentation or authorization by the Association.” From this tentative ruling, it is clear that the court found the anti-SLAPP motion frivolous because the gravamen of the first amended complaint did not challenge appellants’ First Amendment activities. (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1389 [specificity requirement met where court’s tentative ruling set forth reasons for imposing sanctions for frivolous anti-SLAPP motion and incorporated the opposition to the motion] (Garamendi).)
The tentative ruling also noted that the “plaintiff was required to respond to [Appellants’] Appeal, request for Rehearing in the Court of Appeal, and request for review by the California Supreme Court.” In context, however, it appears the court referred to these matters to explain why the motion for attorney fees was timely.
This degree of specificity is sufficient. No more is required than a written factual recital, with reasonable specificity, of the circumstances that led the court to find the conduct sanctionable. (Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454,470; Garamendi, supra, 132 Cal.App.4th at p. 1389.) While the court could have expressly stated that no reasonable attorney would have believed the motion had any merit, that conclusion was implicit in the court’s citation to Garamendi and the statute. It might have been tidier if the court had included its reasoning in the formal written order granting the sanctions motion, or at least incorporated the tentative ruling by reference, but it cannot seriously be contended that either appellants or this court have been left at a loss as to the basis of the order. To the contrary, appellants have had no difficulty arguing at length that the basis of the court’s order was incorrect.
Appellants urge us to disregard the document in respondent’s appendix that purports to set forth the court’s tentative ruling, arguing that it is not a minute order or the tentative ruling itself. Appellants’ argument is unpersuasive. The document in respondent’s appendix is entitled “CONTRA COSTA SUPERIOR COURT – MARTINEZ [¶] Register of Actions.” It is the type of document a respondent may include in its appendix: a respondent’s appendix may contain any document that could have been included in the appellant’s appendix (Cal. Rules of Court, rule 8.124(b)(4)); the appellant’s appendix must contain all the items required of a clerk’s transcript (rule 8.124(b)(1)(A)); and the clerk’s transcript must contain the register of actions if it is available (rule 8.122(b)(1)(F)). Furthermore, while appellants object to our consideration of the document, there is no dispute that the document does indeed set forth the court’s tentative ruling.
Appellants also argue, rather paradoxically, that the document respondent presented is not an order upon which an appeal may be taken (citing Butler v. City and County of San Francisco (1951) 104 Cal.App.2d 126, 128).
The record satisfies the purposes of the specificity requirement of section 128.5, subdivision (c).
B. Support for the Finding that the Anti-SLAPP Motion Was Frivolous
Appellants argue that the court erred in concluding that their anti-SLAPP motion to strike was frivolous. Frivolous is defined in section 128.5 as “totally and completely without merit” or “for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).) A motion is frivolous “ ‘where it can be said that it “indisputably has no merit,” such that “any reasonable attorney would agree” that it is “totally and completely without merit.” ’ ” (Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 922.)
We review the court’s order under the abuse of discretion standard. (See Sabek, Inc. v. Englehard Corp. (1998) 65 Cal.App.4th 992, 1001 [abuse of discretion standard applied to § 128.5 order].) We do not independently determine whether appellant’s conduct was frivolous. (Ibid.) Nor may we substitute our decision for the judgment of the trial court, even if we might have decided the motion differently. (Ibid. Dickinson v. Howen (1990) 220 Cal.App.3d 1471, 1476.) Instead, we may disturb the trial court’s decision only if it exceeded the bounds of reason and resulted in manifest injustice. (See Sabek, supra, 65 Cal.App.4th at p. 1001; Garamendi, supra, 132 Cal.App.4th at p. 1388.)
1. Frivolous Argument as to Causes of Action Arising from Protected Activity
For the reasons set forth in our opinion in appeal number A117346, summarized by the trial court in its tentative ruling and recapped ante, appellants were plainly wrong in asserting that the Association’s causes of action targeted protected activity within the meaning of the anti-SLAPP statute. The Association challenged whether appellants’ expenditures were improper because they were unauthorized -- not because of their purpose -- and appellants have not demonstrated any First Amendment right to make unauthorized expenditures. The Association’s motives in challenging the expenditures are irrelevant. (See, e.g., City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).)
While basing a motion on an unsuccessful argument does not in itself make the motion frivolous, the record in this case supports the conclusion that no reasonable attorney would have shared appellants’ view. Many cases decided before appellants filed their motion had held that causes of action based on business transactions were not subject to anti-SLAPP protections. (See, e.g., Blackburn v. Brady (2004) 116 Cal.App.4th 670, 677 [fraud cause of action not subject to anti-SLAPP statute, where it arose not from free speech but from actions affecting bidding at a sale]; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929-930 [cross-complaint alleging causes of action arising from bidding and construction practices, rather than from acts in furtherance of right to petition or free speech, was not subject to anti-SLAPP statute].) This was so even if the targeted business activity had some relation to protected activity. (See, e.g., Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 [defamation suit based on competitor’s false statements that plaintiff was dumping toxic chemicals was not based on protected activity, even though pollution is a matter of general public interest, because the statements “were not about pollution or potential public health and safety issues in general, but about [the plaintiffs’] specific business practices”].) It was also clear that the fact that a plaintiff’s cause of action may have been triggered by the defendant’s exercise of protected activity would not bring the cause of action within the scope of the anti-SLAPP statute. (City of Cotati, supra, 29 Cal.4th at p. 78.)
Appellants argue that section 425.16 was in a “tumultuous state of appellate construction” when they filed their anti-SLAPP motion and pursued their appeal. However, if the precise scope of the anti-SLAPP statute was still being refined at the time, there was plainly no uncertainty as to whether the use of an organization’s funds without its authorization would fall within the statute’s definition of protected activity. Appellants have not cited to us any case that would have led them, or any reasonable attorney, to conclude that claims essentially for embezzlement should be subject to the anti-SLAPP statute merely because, after taking the funds without authorization, they used the funds for political purposes.
Appellants argue that, before they filed their anti-SLAPP motion to strike, the Sixth Appellate District had ruled that the anti-SLAPP statute applied to the unauthorized use of public funds to finance political speech, and review of the decision was still pending in the California Supreme Court when appellants filed their motion to strike. However, the Sixth Appellate District’s opinion was issued in December 2005. The California Supreme Court granted review and depublished the opinion in April 2006. (Vargas v. City of Salinas (2009) 46 Cal.4th 1 (Vargas).) Appellants filed their motion in December 2006. We fail to see how the Supreme Court’s grant of review and depublication of the Sixth Appellate District’s opinion would have given appellants confidence or justification in making their arguments.
In any event, the Sixth Appellate District’s opinion did not support the arguments appellants made in their anti-SLAPP motion. The complaint in that case had contended that a city’s expenditures were illegal because they paid for the promulgation of statements that constituted improper political advocacy. (See Vargas, supra, 46 Cal.4th at p. 13.) In other words, the wrongfulness of the expenditures was based on their purpose, and this purpose clearly fell within the activity subject to the anti-SLAPP statute. (Id. at p. 15.) Here, by contrast, the wrongfulness of the expenditures was not based on their purpose, but based on the fact they were unauthorized, and the act of taking something without authorization is not the type of activity protected by the anti-SLAPP statute. The Sixth Appellate District’s opinion certainly did not stand for the proposition that appellants had a First Amendment right to take money from an organization without the requisite authorization.
Other issues decided in the Sixth Appellate District’s opinion were not helpful to appellants either. The court determined that a government entity and public official could claim the protections of the anti-SLAPP statute, but that ruling has no bearing on this case. (Vargas, supra, 46 Cal.4th at p. 14.) The court also considered whether speech that was otherwise protected under the anti-SLAPP statute would lose its protection because it was illegal. (Id. at p. 15.) That issue is immaterial as well, because in this case the Association’s complaint had not challenged activity that was protected under the anti-SLAPP statute in the first place.
Nor did our Supreme Court’s subsequent decision support appellants’ position. The court determined that the anti-SLAPP statute’s protections applied to statements and writings of governmental entities and public officials. (Vargas, supra, 46 Cal.4th at pp. 16-17.) The court did not address whether the mere act of expenditure would be protected by the anti-SLAPP statute. Appellants refer us nonetheless to the following language in the opinion: “the alleged illegality of defendants’ conduct does not render the anti-SLAPP statute inapplicable but rather presents an issue to be addressed in the second step of the legal analysis.” (Id. at p. 15.) By this the court meant, if the targeted activity is in furtherance of the right of free speech or petition, whether the activity was illegal would not be considered until the second prong of the anti-SLAPP analysis. The observation does not apply to the matter before us, because here the targeted activity (expenditure without authorization) was not protected anyway.
Appellants’ remaining arguments are also unpersuasive. Appellants insist they presented evidence that the expenditure of funds was in fact for First Amendment activity, including payment to a registered lobbyist on a campaign for peace officer powers. In making this argument, however, appellants continue to miss the critical point that the trial court and this court have repeatedly made: the gravamen of the complaint – the alleged wrongdoing – is not that appellants used funds to finance political speech, but that they essentially stole the Association’s funds. In other words, according to the Association’s complaint, the expenditures were improper not because of what they were for (their content and purpose), but because they were unauthorized. Appellants’ liability on the Association’s causes of action did not turn on how the funds were used, but whether they complied with the Association’s procedures by which they would be authorized to take them. If the funds were indeed unauthorized due to the failure to comply with those procedures, appellants would allegedly be liable under the Association’s claims no matter how appellants proceeded to use the funds – whether it was to promote union activities, buy a yacht for a family member, or purchase Thanksgiving turkeys for charity.
Appellants also argue: “Certainly, the gravamen of this case involves an allegation that the transactions were unauthorized. However, the Court cannot proceed from assuming that the allegations are true.” We do not simply assume the allegations are true to determine the gravamen of the complaint. Rather, we decide what it is that will determine liability, and in this case it is whether appellants failed to comply with the requisites for obtaining authorization for their expenditures.
Appellants further argue that this case is akin to San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon), and that the court in San Ramon found the defendant’s argument was not frivolous because its position was “not clearly foreclosed by statute,... [t]here is no published case authority precisely on point, and... some of the premises for the [defendant’s] arguments are well taken.” (San Ramon, supra, 125 Cal.App.4th at p. 350.) In San Ramon, however, the court was ruling on whether the defendant’s appeal was frivolous. An appellate court’s decision whether to impose sanctions for a frivolous appeal is far different than deciding whether the trial court abused its discretion in deciding to impose sanctions for a frivolous motion.
Ironically, appellants’ reference to San Ramon indicates that yet additional precedent contrary to their view was in existence when they filed their anti-SLAPP motion to strike. In San Ramon, the San Ramon Valley Fire Protection District (District) alleged that the Board of Retirement of Contra Costa County Employees’ Retirement Association (Board) failed to comply with mandatory statutory duties, abused its discretion by acting without the guidance of policy or precedent, and violated ministerial duties in connection with its determination of the amount to be paid by the District as additional contributions to a pension fund. (Id. at p. 348-349.) The Board filed an anti-SLAPP motion to strike, contending that its decision to assess the pension contributions occurred after a public hearing and vote in a public proceeding, and was thus protected activity. (Id. at p. 353.) The court disagreed, noting “the Board was not sued based on the content of speech it has promulgated or supported, nor on its exercise of a right to petition.” (Id. at p. 357.) Further, the court observed, there was nothing in the Board’s action (the additional assessment) that implicated free speech or petition, and the fact that the assessment occurred after the protected activity in a public proceeding did not mean that it arose from protected activity. (Id. at pp. 353, 357.) Just as the court in San Ramon distinguished between the Board’s action (the additional assessment) and the purpose for which it was performed, there is a distinction between the appellants’ actions here (unauthorized expenditures) and the purpose for which they were purportedly performed.
The trial court did not err in concluding that appellants’ position on the first prong of the anti-SLAPP analysis was frivolous.
2. Frivolous Argument Regarding the Association’s Probability of Prevailing
Under the second prong of the anti-SLAPP analysis, the Association could defeat appellants’ motion to strike by simply presenting some evidence from which a reasonable trier of fact could find for the Association on its causes of action. (See Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768 [“plaintiff’s burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment”].) For reasons explained in our prior opinion and summarized ante, the Association presented such evidence.
The question, then, is whether a reasonable attorney would think that the Association did not have evidence which, if believed by the trier of fact, would establish its case. On this point appellants argue that in our earlier opinion we recognized a “dispute of fact” on the merits based on the evidence presented by the parties. Thus, appellants urge, appellants had evidence to support their arguments.
The question on the second prong of the anti-SLAPP analysis, however, was not whether the appellants had any evidence, but whether the Association had evidence which, if believed, would have proved its claims. The Association had such evidence, and appellants fail to show it was an abuse of discretion to conclude that no reasonable attorney would have thought otherwise.
We recognize that there was no published decision squarely holding against appellants’ position in their anti-SLAPP motion to strike. Nonetheless, for the reasons set forth ante, the trial court did not abuse its discretion in granting the Association’s motion for sanctions under section 425.16, subdivision (c).
The Association has filed a motion in this court for sanctions against appellants and their attorneys for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(a)(1).) The motion is untimely because it was not filed and served within 10 days after the appellants’ reply brief was due. (Rule 8.276(b)(1).) Appellants submitted an opposition to the motion, which we accepted for filing even though “[a]n opposition may not be filed unless the court sends” a notice that it is considering imposing sanctions. (Rule 8.276(d).) In their opposition, appellants did not object to the sanctions motion as untimely. We deferred ruling on the motion until consideration of the merits, and we decide it now. The motion is denied.
III. DISPOSITION
The order is affirmed.
We concur. JONES, P. J., SIMONS, J.