Opinion
E069740
12-04-2019
PAMELA SOTO, Plaintiff and Respondent, v. INTERPRETERS UNLIMITED, INC., Defendant and Appellant.
Walker Law Office and Charles F. Walker for Defendant and Appellant. Crouse & Associates and Daryl G. Crouse for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1714632) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry and Craig C. Riemer, Judges. Affirmed. Walker Law Office and Charles F. Walker for Defendant and Appellant. Crouse & Associates and Daryl G. Crouse for Plaintiff and Respondent.
Defendant and appellant Interpreters Unlimited, Inc. (IUI) appeals after the denial of its anti-SLAPP motion filed pursuant to Code of Civil Procedure section 425.16 (SLAPP Motion). IUI brought the SLAPP motion to dismiss plaintiff and respondent Pamela Soto's verified complaint for defamation business disparagement, tortious interference with contracts, civil harassment (Code Civ. Proc., § 527.6) and extortion (Pen. Code §§ 518-619), false light, interference with prospective economic advantage, infliction of emotional distress, and application for preliminary and permanent injunction filed against IUI and Douglas England (Complaint). England had also filed an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16 (England's Motion).
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
IUI and England filed notices of appeal from the orders denying their motions. While the appeals were pending in this court, counsel for IUI, England and Soto entered into a stipulation agreeing that Soto could file a first amended complaint (FAC). The FAC eliminated the 11 causes of action that gave rise to the SLAPP Motion and England's Motion. The stipulation was approved by the trial court (Judge Asberry) and the FAC was filed. England dismissed his appeal, and IUI filed its opening brief arguing that the appeal was moot based on the filing of the FAC. On March 26, 2019, the trial court (Judge Riemer) declared the FAC void finding it had no jurisdiction to file the FAC since the matter was pending on appeal.
England filed a petition for peremptory writ of mandate from the order vacating the filing of the FAC, with supporting exhibits (case No. E072828) (Petition), arguing the trial court's order dismissing the FAC was erroneous. IUI joined the Petition. We denied the Petition affirming the trial court's order that the FAC was void.
IUI only argues in briefing that the FAC should be declared valid and the instant case must be found moot. IUI has provided no argument regarding the merits of the denial of its SLAPP motion despite filing the appeal on that ground. Since this court has denied the Petition, and IUI has failed to provide an argument on the merits of its SLAPP motion, which it should have anticipated given the fact the validity of the FAC was on review in this court, we have no choice but to affirm the denial of the SLAPP motion.
FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
On August 8, 2017, Soto filed her Complaint. Soto was a sign language interpreter who was an independent contractor for IUI. IUI operated a language interpretation service in Riverside County. The Complaint was based on a statement prepared by England on March 13, 2017, and sent to IUI, which detailed Soto's alleged unethical behavior in helping interpret for an elderly woman at a nursing home. England alleged the behavior violated the "National Association of the Deaf—Registry of Interpreters Code of Ethical Conduct." Soto asserted the disparaging statements were sent to Kaiser Permanente (who utilized IUI's interpreter services), the "Registry of Interpreters for the Deaf" and some of her colleagues. Soto alleged 11 causes of action related to the dissemination of the statement. IUI filed a verified answer to the Complaint.
England appears to have been another interpreter who worked with Soto.
B. SLAPP MOTION
On October 10, 2017, England's Motion was filed. On October 13, 2017, IUI filed the SLAPP Motion. IUI contended the statements relied upon by Soto in her Complaint to support all of her causes of action were protected and privileged speech under the litigation privilege and common interest exceptions. Moreover, Soto could not show she could prevail on the merits of her claims within the meaning of section 425.16. Soto filed opposition to both England's Motion and the SLAPP Motion (collectively, the SLAPP Motions). Soto insisted the statements were not protected and it was probable she would prevail on her claims. Soto requested attorney fees arguing that the SLAPP Motions were frivolous. Both England and IUI filed replies to Soto's oppositions.
C. RULING
On December 15, 2017, the trial court, specifically Judge Asberry, denied the SLAPP Motions. However, Judge Asberry did not find the two motions were frivolous and denied attorney fees to Soto. On December 26, 2017, England filed a notice of appeal from the order denying England's Motion. On January 16, 2018, IUI filed a notice of appeal from the denial of the SLAPP Motion.
D. FURTHER ACTION WHILE APPEAL PENDING
In order to provide a summary of the events occurring after the notices of appeal were filed, we grant the requests for judicial notice filed by IUI on October 11, 2018, and Soto on April 25, 2019. In addition, on our own motion we take judicial notice of the record in case No. E072828. --------
The parties filed their stipulation on August 29, 2018, in the trial court, while the appeal was pending in this court. The stipulation was approved by the trial court, specifically Judge Asberry, on that same day and the FAC was filed on September 5, 2018. The FAC eliminated the first 11 causes of action in the Complaint and alleged an employment class action based on Labor Code violations. England filed a motion to dismiss his appeal on September 19, 2018, on the grounds the filing of the FAC rendered his appeal moot. The motion was granted by this court and remittitur issued on December 17, 2018.
On January 7, 2019, IUI filed its opening brief arguing only that the filing of the FAC rendered its appeal moot and seeking dismissal. IUI did not address the merits of the denial of its SLAPP Motion.
On March 26, 2019, an order vacating the FAC was filed by the new trial court, specifically Judge Riemer, in response to a motion to strike the FAC filed by Soto. Judge Riemer concluded that the FAC was improperly filed because the case was stayed in the trial court while the appeal was pending. The Complaint once again was the operative pleading.
On May 28, 2019, England filed the Petition and IUI joined on June 5, 2019. England, joined by IUI, argued in the Petition that the FAC was properly filed as the class action claims could proceed while the appeal was pending on the defamation claims. In the alternative, England, joined by IUI, argued that the filing of the FAC by Soto constituted a voluntary dismissal of her claims in the Complaint. The Petition was summarily denied on August 1, 2019.
Prior to the denial of the Petition, on July 12, 2019, IUI filed its reply brief arguing that the FAC was properly filed in the trial court; the trial court erroneously determined that the filing of the FAC was void; and the issues on appeal regarding the SLAPP Motion were moot. IUI did not argue the merits of the denial of the SLAPP Motion.
DISCUSSION
IUI filed this appeal from the order denying its SLAPP Motion. However, rather than address the merits of the denial, IUI has chosen to argue that the FAC was properly filed by the trial court while this appeal was pending, which has rendered the appeal moot. This court has already denied the Petition raising the issue that the FAC was properly filed. IUI has not argued the merits of the claim that the SLAPP motion was improperly denied and we have no choice but to affirm the trial court's order denying the SLAPP Motion.
Section 425.16 applies to any cause of action arising from 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.' " (§ 425.16, subd. (e).) In ruling on a motion under section 425.16, the trial court engages in what is now a familiar two-step process: "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; see also ComputerXpress v. Jackson (2001) 93 Cal.App.4th 993, 998-999 "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) We review an order granting or denying a motion to strike under section 425.16 de novo. (ComputerXpress, at p. 999.)
Here, rather than addressing the two-pronged test in section 425.16, IUI addresses that the FAC was properly filed in the trial court and that Soto voluntarily dismissed her defamation claims that were raised in the Complaint. IUI further argues that it bargained for the dismissal of the Complaint and the stipulation was a contract supported by consideration and its terms are straightforward. IUI insists it should not be denied the benefit of its bargain. However, the stipulation occurred after the appeal was filed in this case and review of the stipulation is not properly before this court. Further, this court has already rejected the Petition raising that the FAC should be declared valid, leaving the trial court's order striking the FAC intact. The only order from which IUI appealed was the denial of its SLAPP Motion and IUI does not argue the merits of that denial.
Although we review de novo a trial court's order denying a motion filed pursuant to section 425.16, our review is limited to issues that have been adequately raised and briefed. (See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc., (2005) 133 Cal.App.4th 26, 41-42.)
" '[A]n appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness.' [Citation.] As a result, on appeal 'the party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]' [Citations.] When an appellant raises an issue 'but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207; see also Wall Street Network v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177 [the failure to address an issue on appeal forfeits any contention of error].) "'[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.' [Citation.] 'We are not obliged to make other arguments for [appellant] [citation], nor are we obliged to speculate about which issues counsel intend to raise.' " (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)
IUI does not provide any argument addressing the merits of the denial of the SLAPP Motion. We note that in the reply brief, IUI argues that the FAC could be filed while the appeal was pending since the employment class action claims were ancillary and collateral matters. IUI argued, "Here, [IUI]'s rights were not affected, the underlying Anti-Slapp order was not changed and this Court could have issued an opinion on the original issues if England and [IUI] pressed the matter on appeal. Soto's dismissal of claims and addition of different claims did not affect the merits of the Anti-Slapp appeals." IUI further states, "This Court at all times maintained its jurisdiction over [IUI]'s Anti-Slapp appeal regardless of Soto's FAC." Despite this argument, IUI did not argue the merits of the denial of the SLAPP Motion.
IUI provides no explanation for failing to address the merits of the SLAPP Motion other than the FAC was properly filed. IUI was well aware that the Petition addressing the validity of the filing of the FAC was pending in this court and that it could potentially be found void. Despite the knowledge that the possibility existed that the FAC would be found void, IUI did not alternatively argue the merits of the denial of the SLAPP Motion in either its opening or reply briefs. As such, we find such claims forfeited and must affirm the trial court's order.
DISPOSITION
The order denying IUI's SLAPP Motion is affirmed. In the interests of justice, each party is to bear its own costs as to this appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.