Plummer v. Harris
Filed 11/5/13 Plummer v. Harris CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
EDWARD PLUMMER, JR.,
Plaintiff and Appellant,
v.
KAMALA D. HARRIS, et al.,
Defendants and Respondents.
B245382
(Los Angeles
County
Super. Ct.
No. KC063228)
APPEAL from a judgment of the Superior Court of
County, Salvatore Sirna, Judge. Affirmed.
Edward Plummer, Jr., in pro. per,
for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia
M. B. Fowler, Senior Assistant Attorney General, Scott H. Wyckoff, Deputy
Attorney General, for Defendants and Respondents.
_______________________
Edward Plummer,
Jr. appeals the dismissal of his action under Code of Civil Procedure
FACTUAL AND PROCEDURAL BACKGROUND
Plummer, a former employee
of the Department of Health Care Services
(DHCS), sued various government agencies and officers, including DHCS and
Deputy Attorney General Bruce Reynolds, asserting that they had violated Penal
Code section 125 and 42 U.S.C. § 1983 by their in-court conduct in another
lawsuit. Reynolds and DHCS filed a
special motion pursuant to section 425.16 to strike the complaint as a
strategic lawsuit against public participation (SLAPP). The trial court granted the motion and
entered judgment in favor of Reynolds and DHCS.
Plummer appeals.
DISCUSSION
Section 425.16 provides that “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).) For purposes of 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
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
public issue or an issue of public interest.â€
(§ 425.16, subd. (e).)
“Section
425.16 posits . . . a two-step process for determining whether an action is a
SLAPP. 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.] ‘A defendant meets this burden by
demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has
been made, it must then determine whether the plaintiff has demonstrated a
probability of prevailing on the claim.â€
(Navellier v. Sletten (2002)
29 Cal.4th 82, 88.) We review the trial
court’s ruling de novo. (
(2006) 144 Cal.App.4th 1242, 1251.)
A. Constitutionally Protected Activity
Here, it does
not appear to be disputed that the causes of action arose from protected
activity. In the complaint in this
action, Plummer alleged that Reynolds, while acting as an attorney for DHCS and
another client in another matter, made a false representation in court: specifically, he advised the superior court that
in a federal action, Plummer was self-represented. Plummer concedes that Reynolds’s statement
was made during an official judicial proceeding. Under the plain language of section 425.16,
subdivisions (e)(1) and (e)(2), Reynolds’s in-court statements are acts in
furtherance of a person’s right of petition or free speech. Moreover, “all communicative acts performed
by attorneys as part of their representation of a client in a
context are per se protected as petitioning activity by the anti-SLAPP
statute.†(Cabral v. Martins (2009) 177 Cal.App.4th 471, 480.)
B. Probability of Success
Once the moving party demonstrates
that a cause of action is based on constitutionally protected activity, the
plaintiff must then demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) Admissible evidence in support of the
plaintiff’s prima facie case must be presented on each element of the challenged
causes of action. (Roberts v. Los
Angeles
County Bar Association (2003) 105 Cal.App.4th 604, 613-614.) Here, Plummer did not demonstrate a
probability of prevailing on his claims.
Plummer’s first cause of action
alleged a violation of Penal Code section 125, which provides, “An unqualified
statement of that which one does not know to be true is equivalent to a
statement of that which one knows to be false.â€
There is no basis in law for concluding that this statute creates a
private right of action. Private rights
of action are not created by the mere enactment of a statute; they exist only
when the language of the statute or its legislative history clearly indicates
that the Legislature intended to create a right to sue for damages. (Vikco
Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55,
62-63.) This provision of the Penal Code
is meant to be read in conjunction with the definition of perjury. (People
v. Von Tiedeman (1898) 120 Cal. 128, 134.)
It includes no indication that it was meant to provide a basis for a
private cause of action, and Plummer has not provided any argument based on either
the language of the statute or the legislative history to support his position
that this statute creates a private right of action. Plummer, therefore, has not established a
probability of success on this claim.
Plummer similarly did not establish
a likelihood of success on his second cause of action, a civil rights cause of
action under 42 U.S.C. § 1983 (“section 1983â€). A section 1983 claim has two elements: (1) the conduct complained of was committed
by a person acting under color of state law; and (2) the conduct deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or
laws of the United States. (
1387, 1402.) Plummer has not established
any deprivation of a right, privilege, or immunity secured by the Constitution
or laws of the United States.
The
allegations here arise from proceedings to have Plummer declared a vexatious
litigant. After the motion was granted
and then reversed on appeal (Plummer v.
Coen (Oct. 12, 2010, B213723) [nonpub. opn.]), Reynolds, acting as counsel
for DHCS and another defendant, renewed his motion to have Plummer declared a
vexatious litigant. Plummer contends
that at the hearing on the renewed vexatious litigant motion, Reynolds made two
false representations: first, he falsely
represented to the trial court that Plummer represented himself in another
action; and second, Reynolds falsely told the court that Plummer was not
telling the court the truth about his representation in the other action. Although Plummer argues that Reynolds intended
to deprive him of his constitutional right to redress his grievances in court, he
has not shown that Reynolds or DHCS actually deprived him of any rights: he acknowledges that the trial court denied the
vexatious litigant motion and that the underlying litigation continued for more
than another year until summary judgment was entered. As Plummer did not establish any actual
deprivation of his rights under the Constitution or laws of the United States,
he did not establish a probability of success on his section 1983 claim.
C. Plummer’s Arguments
Plummer contends that the trial
court erred in determining that he did not provide evidence demonstrating that
he had a reasonable probability of success on his section 1983 claim,
specifically that the trial court “failed to identify and resolve all of the
conflicting issues embedded in competing activities which are constitutionally
protected as mentioned in the appellant’s complaint,†specifically the first
three pages of his complaint. We have
reviewed the pages of the complaint to which Plummer directs us, and see that
these pages contain the caption of the action, a two-paragraph statement of the
case, allegations concerning jurisdiction and venue, and a description of the
plaintiff. These pages do not shed light
on what Plummer believes are “conflicting issues embedded in competing
activities which are constitutionally protected.†Plummer, moreover, has not supported his
contention that the trial court erred in its conclusion that he had failed to
establish a reasonable probability of success on the merits of his claims with
any discussion of the evidence to support his argument. “To demonstrate error, appellant must present meaningful legal
analysis supported by citations to authority and citations to facts in the
record that support the claim of error.
[Citations.] When a point is
asserted without argument and authority for the proposition, ‘it is deemed to
be without foundation and requires no discussion by the reviewing court.’ [Citations.]â€
(In re S.C. (2006) 138
Cal.App.4th 396, 408.)
Next, Plummer asserts that section 425.16 was enacted
to create a procedure in which the trial court “could evaluate cases as to
their merits†and that it was intended as a procedural device for abating
meritless litigation. In this section of
his opening brief, Plummer does not assert, let alone demonstrate, any error by
the trial court, and he has not offered any basis for a reversal with this
passage.
In the next section of his argument
on appeal, entitled, “Collective Burdens,†Plummer sets forth a series of
statements about the burdens of the litigants and the court in conjunction with
a section 425.16 motion. Here again,
Plummer does not connect these general statements of law to the facts of this
case. An appellant must offer argument as to how the court
erred, rather than citing general principles of law without applying them to
the circumstances before the court. (
(1995) 39 Cal.App.4th 691, 699.)
Plummer argues in a fourth section of his argument
that both the section 425.16 motion and his lawsuit are based on the
constitutional rights to free speech and petition. He observes that neither the federal nor
state constitution prioritizes one right over the other, and concludes that
“With that in mind the courts should look at the interest, and the accompanying
conduct, of the parties.†The nature of the
court’s review of a section 425.16 motion, however, is well-established: the court first determines whether the defendant
has made a threshold showing that the challenged cause of action is one arising
from protected activity, and if the court finds that such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability
of prevailing on the claim. (
and in this case it leads to the conclusion that the section 425.16 motion was
properly granted.
In Plummer’s section entitled,
“Interest of the Parties,†Plummer appears to be arguing against immunities, and
contending that they frustrate his rights to petition for redress of grievances
and due process. Our resolution of the
issues in this case, however, does not rest on immunities but on Plummer’s
failure to demonstrate a likelihood of success on the merits on his
claims.
Finally, Plummer appears to attempt
to expand the basis for his suit from the statements made in the vexatious
litigant motion hearing to the fact that the motion was filed at all: he asserts that by seeking the vexatious
litigant determination the defendants “disobeyed a court directive and
initiated a malicious proceeding.†Here,
the directive to which Plummer refers is this court’s ruling in
the trial court that Plummer was a vexatious litigant. Plummer appears to understand our decision as
establishing that he could never be found to be a vexatious litigant, as he asserts
that “[t]he defendants motioned [sic]
the trial court for a determination that had already been made at the appellate
level in plaintiff’s favor.†This court,
however, ruled that the vexatious litigant finding could not stand because the
record supported fewer than the necessary number of adversely determined
litigations; we did not preclude a later motion based on a sufficient number of
adversely determined litigations. Plummer
contends that there was no new evidence to support the motion, while Reynolds
submitted evidence that his new motion was based on new adversely determined
litigation. We cannot resolve this factual
dispute because the moving papers and accompanying evidence are not in the record. Plaintiff has the burden of providing an
adequate record, and his failure to do so requires that the issue be resolved
against him. (Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295-1296.) At
any rate, Plummer’s contention that the proceeding was malicious is an
attempt to avoid the application of the litigation privilege found in Civil
Code section 47. As our decision is not
based on the litigation privilege, Plummer’s argument does not establish any
basis for reversal.
In his reply
brief, Plummer argues that the defendants “failed to present a comprehensive
argument that the appellant cannot prevail on his stated claimsâ€; that
affirming the trial court’s order would result in a nullification of the
appellate process; that the principle of separation of powers requires
reversal; that the directions of the judicial and legislative branches cannot
be ignored; and that the defendants’ arguments concerning immunities are not
correct.
immunities, they are of no assistance to him, as Plummer cannot demonstrate a
probability of success on the merits regardless of immunities. To the extent these arguments rely on this
court’s previous decision in Plummer v.
Coen, supra, B213723, Plummer
misunderstands the scope of that decision, as it does not preclude further
vexatious litigant proceedings. Finally,
to the extent that his arguments are based on a failure of the defendants to
present evidence that he cannot prevail on his causes of action, Plummer
misunderstands the burdens of proof in the anti-SLAPP context. Once the defendants demonstrated that
Plummer’s causes of action were based on constitutionally protected activity,
the burden shifted to Plummer to demonstrate a probability of prevailing on his
claims. (§ 425.16, subd.
(b)(1).) As he failed to do so, the
trial court properly granted the special motion to strike.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs, if
any, on appeal.
ZELON,
J.
We
concur:
WOODS, Acting P. J. SEGAL, J.
name="_ftn1" title="">[1]
further statutory references are to the Code of Civil Procedure.
name="_ftn2" title="">[2]
respondents in their brief, does not apply here. As we resolve the issues in this case without
reference to that doctrine, we need not evaluate whether it may be applied
here.
