Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC474602, Stephen D. Cunnison, Judge.
Eric T. Smith for Plaintiffs and Appellants.
Burke, Williams & Sorenson, Julie Hayward Biggs, Amy E. Hoyt, and Sarah P. Gorman; Aleshire & Wynder, David J. Aleshire, for Defendant and Respondent.
OPINION
RAMIREZ P.J.
Plaintiffs and appellants James C. Smith and David A. Dysart, Jr. (plaintiffs) challenge the trial court’s order granting the “anti-SLAPP” motion — a special motion to strike pursuant to Code of Civil Procedures section 425.16 — filed by defendant and respondent Barbara Hanna (defendant). Plaintiffs argue the court erred in granting the order because defendant’s actions, upon which they base their causes of action, are not in furtherance of her constitutional rights of free speech or petition, as required by section 425.16. As discussed below, we conclude that the trial court was correct that defendant’s actions were in furtherance of her rights of free speech. We also conclude that plaintiffs waived any argument that, even though defendant’s actions were in furtherance of her rights of free speech, plaintiffs still had a probability of prevailing on the merits. We thus affirm the trial court’s ruling.
All section references are to the Code of Civil Procedure unless otherwise indicated.
Statement of Facts and Procedure
On June 28, 2007, plaintiffs filed a complaint against defendant in the superior court. The main factual allegations in the complaint are as follows: Defendant is a member of the Banning City Council. The City of Banning (the City) puts on an annual event called Stagecoach Days to celebrate its equestrian heritage. From 2003 to 2006, the Banning Chamber of Commerce produced the event but plaintiffs primarily managed the event. The Banning Chamber of Commerce chose not to produce the 2007 event. Plaintiffs and city staff began discussions in early January 2007 about plaintiffs producing and managing the event. On January 23, 2007, the city council passed a resolution directing city staff to work with plaintiffs to develop a proposal for the Fiftieth Anniversary of Stagecoach Days in the fall of 2007. On March 27, 2007, the city council passed a resolution contemplating that plaintiffs would submit a proposal for the management and production of the event which would require the City to contribute no more than $100,000. On April 7, 2007, plaintiffs did submit a proposal requiring the City to contribute no more than $100,000. At a public meeting on April 10, 2007, the city council rejected plaintiffs’ proposal. Plaintiffs alleged that defendant engaged in behind the scenes efforts to convince the city staff and council members to produce and manage the event “in-house” using the city staff instead of the plaintiffs.
The complaint alleged three causes of action. In the cause of action for breach of the covenant of good faith and fair dealing, plaintiffs alleged the city council’s March 27, 2007, resolution obligated it to award the production contract to plaintiffs and that defendant worked behind the scenes to prevent plaintiffs from enjoying the benefits of their bargain with the City. The second cause of action, for intentional interference with prospective economic advantage, is based on defendant’s alleged public statements that plaintiffs were engaged in extortion in their dealings with the City. The third cause of action, negligent interference with prospective economic advantage, was based on plaintiffs’ alleged negligence in failing to comply with the City’s Civility Ordinance. This cause of action also refers to defendant’s statements to plaintiff James C. Smith at a public meeting of the city council on March 27, 2007, as discussed in footnote 2, ante.
The statement, as set forth in the minutes of an April 10, 2007 city council meeting, reporting a comment on defendant’s statements from a member of the public, is as follows: “I think that one of the things that made me very angry was that you had several meetings 2, 3 whatever with [C]ity [C]ouncil over a period of time and then I believe, please correct me if I am wrong, that on Friday the 23rd was the first time I am aware of that the $75,000 management fee additionally now $50,000 was added. To me this sounded like extortion. Like all of a sudden last minute, boom, bah.” Defendant is reported to have hit the palm of her left hand with her right fist as she said “Boom, bah.”
On August 14, 2007, defendant filed her answer and a special motion to strike pursuant to section 425.16. Defendant argued that the lawsuit arose from her protected free speech activities. Plaintiffs filed their opposition to the special motion on September 20, 2007. On October 4, 2007, the trial court held a hearing on the special motion. The court found that the lawsuit arose out of protected acts and that the plaintiffs did not meet their ensuing burden to establish a probability of prevailing on the merits. The court also found that any alleged violations of the Ralph M. Brown Act (Gov. Code, § 54950.5 et seq. (Brown Act)) were not relevant to the complaint because “I don’t think that an action for damages is one of the remedies allowed in the Brown Act.” The court granted the motion and awarded defendant attorney fees subject to proof. On February 7, 2008, the trial court awarded defendant her attorney fees in the amount of $29,261.50. The notice of entry of judgment dismissing the complaint and awarding the attorney fees was filed on March 11, 2008. This appeal followed.
Discussion
The trial court did not err in granting defendant’s motion to strike plaintiffs’ complaint. Section 425.16 authorizes the trial court to strike a cause of action against a person arising from that person’s exercise of the constitutional rights to free speech and petition for redress of grievances. (§ 425.16; see Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 (Flatley).) “‘Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider “the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.” [Citation.] However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley, supra, at pp. 325-326.)
Protected Activity
“Resolution of an anti-SLAPP motion ‘requires the court to engage 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.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) In the present case, there is no question that the first prong of the two-part test was met. Plaintiffs state in their complaint that the first cause of action, for breach of the covenant of good faith and fair dealing, arose from defendant’s efforts to persuade city staff and other city council members to have Stagecoach Days 2007 produced and managed by city staff rather than by plaintiffs’ company. This falls within at least two of the definitions of “free speech” set forth in the anti-SLAPP statute. Defendant’s efforts at persuasion are “written or oral statement or writing made in connection with an issue under consideration or review by a legislative... body....” (§ 425.16, subd. (e)(2).) The issue under consideration by the legislative body here was what entity the City should choose to produce and manage Stagecoach Days. Defendant’s efforts at persuasion are also “conduct in furtherance of the exercise of the constitutional right of... free speech in connection with a public issue or an issue of public interest.” (§425.16, subd. (e)(4).) Again, the issue of public interest is who the City should choose to produce and manage Stagecoach Days. Thus, defendant showed that the basis of the first cause of action is protected activity.
Plaintiffs allege in their complaint that the second cause of action, for intentional interference with prospective economic advantage, arose from defendant’s public statements that plaintiffs were engaged in extortion in their dealings with the City regarding Stagecoach Days. Defendant made these statements to plaintiff James C. Smith at a public meeting of the city council on March 27, 2007, during a discussion of plaintiffs’ proposal to manage Stagecoach Days. In addition to falling under the subdivisions described above, section 425.16, subdivision (e)(2) and (e)(4), these statements also clearly qualify as “any written or oral statement or writing made before a legislative... proceeding, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(1).)
Plaintiffs allege in their complaint that the third cause of action, for negligent interference with prospective economic advantage, arose out of defendant’s failure to comply with the City’s Civility Ordinance. This in turn is based on defendant’s statements to plaintiff James C. Smith at a public meeting of the city council on March 27, 2007, as discussed in footnote 2, ante. Again, these statements qualify as an oral statement made before a legislative body, the Banning City Council, under section 425.16, subdivision (e)(1).
Probability of Plaintiffs Prevailing
Under the second prong, the court determines whether the plaintiff has presented evidence sufficient to “establish[] that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Thus, to defeat a special motion to strike, a 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.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)
Plaintiffs do not even address this second prong of the SLAPP inquiry in their appellate briefs. Given our conclusion that defendant’s actions were protected free speech, this alone is enough to defeat the plaintiffs’ appeal. “When an appellant fails to raise a point or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784.) Because plaintiffs have failed to even argue the probability that they would prevail on their claims at trial, we deem the point waived.
Alleged Illegal Activity
Plaintiffs also argue that defendant is not entitled to protection under section 425.16 if defendant’s acts giving rise to plaintiffs’ causes of action are themselves illegal. Specifically, plaintiffs argue in their appellate briefs that defendant violated the Brown Act by having illegal e-mail communications with other city council members about their Stagecoach Days proposal. However, the case cited by plaintiffs, Flatley,does not support their argument in the context of the facts of this case. First, our Supreme Court in Flatley specifies, “In such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied.” (Flatley, supra, 39 Cal.4th at p. 316.) Here, defendant does not concede that she violated the Brown Act. Neither is there any evidence at all, much less conclusive evidence, that defendant violated the Brown Act. This is because none of the allegedly illegal e-mail communications are included in the record on appeal. Second, our Supreme Court further specified that “If, however, a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, supra, at p. 316.) Again, plaintiffs did not even address the second prong of the anti-SLAPP inquiry in this appeal, and so have waived this point.
Disposition
The judgment is affirmed. Costs to the respondent.
We concur: HOLLENHORST J., GAUT J.