Filed 9/29/17 Ascarie v. Lafayette CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MAHMOUD ASCARIE, Plaintiff and Appellant, v. GARY LAFAYETTE et al., Defendants and Respondents.

H041507 (Santa Clara County Super. Ct. No. 1-14-CV-258848)

In state court, plaintiff Mahmoud Ascarie filed in propria persona a complaint against Gary Lafayette, an individual, Lafayette & Kumagai, LLP, MJR Electric, and Michael Rauschnot. Lafayette, an attorney and a partner in the law firm of Lafayette and Kumagai, had represented Nationwide Mutual Insurance (Nationwide) against an insurance bad faith lawsuit filed by plaintiff in federal court. The complaint in this case alleged fraud and conspiracy to commit fraud against all defendants (first cause of action) and breach of fiduciary duty against defendants Lafayette and Lafayette and Kumagai, LLP, (together, the Lafayette defendants) (second cause of action) arising from Lafayette’s false promises and representations to plaintiff allegedly made to obtain dismissal of the federal lawsuit. The Lafayette defendants brought a motion to strike (an anti-SLAPP[1] motion) pursuant to Code of Civil Procedure section 425.16, which the trial court granted.[2] Plaintiff appeals in propria persona from the judgment against him.[3]

I

The Complaint In This Case

Plaintiff’s complaint in this case alleged that Lafayette was a licensed attorney and a partner in the law firm of Lafayette & Kumagai. It indicated that plaintiff had filed a lawsuit against Nationwide in federal court for wrongful denial of an insurance claim, arising from a theft, and that Lafayette was representing Nationwide. The complaint alleged that, as part of its defense in the federal action, Nationwide claimed that MJR Electric’s bid of approximately $30,000 to repair the damages to plaintiff’s property that were caused by the theft was “a reasonable estimate.” The complaint averred that MJR Electric was owned by Rauschnot and was his alter ego.

The complaint also alleged the following facts. Lafayette, on behalf of his law firm, “orally promised” that he and his law firm would represent plaintiff in a separate wrongful termination lawsuit against plaintiff’s previous employer (referred to as “the De Anza matter”) “in exchange” for dismissal of the federal lawsuit against Nationwide. Lafayette also told plaintiff that, upon dismissal of the federal lawsuit, MJR Electric would perform the repairs to plaintiff’s property for approximately $30,000 as reflected in its bid. Based on Lafayette’s representations, which Lafayette allegedly knew were false and were intended to mislead plaintiff, plaintiff agreed to dismiss the federal lawsuit. After the dismissal of the federal lawsuit, Lafayette and his law firm “effectively ended all contact” with plaintiff and Rauschnot refused “to perform the work at the agreed upon price.”

The complaint alleged that defendants acted together to induce plaintiff to dismiss the insurance bad faith lawsuit filed in federal court. The first cause of action for fraud and conspiracy to commit fraud alleged that plaintiff suffered monetary damages and emotional distress as a proximate result of the false promises and representations upon which plaintiff relied in dismissing the federal lawsuit against Nationwide. The second cause of action for breach of fiduciary duty alleged that an attorney-client relationship arose from Lafayette’s promise to represent plaintiff in the employment matter following dismissal of the federal lawsuit and that, based upon that relationship, the Lafayette defendants owed a fiduciary duty to represent plaintiff’s interests. The complaint averred that they violated their fiduciary duty to plaintiff by committing fraud and by failing to communicate with plaintiff after the federal lawsuit was dismissed.

II

Special Motion to Strike

A. Background

The Lafayette defendants filed a special motion to strike plaintiff’s complaint pursuant to section 425.16, asserting that their representation of Nationwide in the federal lawsuit was constitutionally protected activity and that plaintiff could not establish a probability of prevailing on the complaint’s causes of action.

On motion of the Lafayette defendants, the court took judicial notice of documents showing that a dismissal of a lawsuit filed by plaintiff against Foothill-De Anza Community College District was entered on June 28, 2010, and, by order filed June 4, 2012, the court denied plaintiff’s motion to set aside the dismissal.

Plaintiff filed his declaration and a memorandum of points and authorities in opposition to the motion to strike. In the memorandum, plaintiff asserted that the Lafayette defendants had ignored the complaint’s second cause of action for breach of fiduciary duty and that section 425.16 did not apply to cases involving malpractice or an attorney’s breach of fiduciary duty to his client, citing a case. Plaintiff’s opposition papers did not address the effect of the litigation privilege on his claims and did not identify with specificity any damages resulting from the alleged promises and representations, including damages arising from the alleged, post-dismissal breaches of fiduciary duty concerning the employment matter.

The trial court found that the gravamen of plaintiff’s state action was that Lafayette made fraudulent promises during settlement negotiations regarding the federal lawsuit. It found that Lafayette’s conduct was clearly protected by section 425.16, subdivision (e)(2), and that, consequently, the burden had shifted to plaintiff to establish a probability of prevailing on the merits to avoid an adverse ruling on the anti-SLAPP motion. It found that it was undisputed that the statements at issue were made in connection with attempts to resolve the federal action. The court determined that plaintiff failed to meet his burden because the litigation privilege applied to Lafayette’s alleged conduct and plaintiff did not present evidence rebutting that privilege.

B. Governing Law

Section 425.16, subdivision (b)(1), 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 Constitution or the 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.” (Italics added.) The language “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” is defined in subdivision (e) of section 425.16 to include four categories of activities: “(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, or (4) 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.” The second category is at issue in this case.

“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. (§ 425.16, subd. (b)(1).) ‘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.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) The term “cause of action” in the anti-SLAPP statute “refers to claims for relief that are based on allegations of protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral, supra, 1 Cal.5th at p. 396.) An anti-SLAPP motion “target[s] only claims that are based on the conduct protected by the statute” (Baral, supra, 1 Cal.5th at p. 382), and it does not reach claims based on unprotected activity. (Ibid.)

Baral clarified that “an anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded. [Citations.]” (Baral, supra, 1 Cal.5th at p. 393.) In addition, “[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Id. at p. 394.)

“The only means specified in section 425.16 by which a moving defendant can satisfy the requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . .” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66 (Equilon).) Or stated differently, “[a] claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063 (Park).)

If the court finds that the defendant has made a threshold showing, the court moves to the second step. (Baral, supra, 1 Cal.5th at p. 396), and “it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); see generally Equilon, supra, 29 Cal.4th at p. 67.)” (Navellier, supra, 29 Cal.4th at p. 88.) “ ‘In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)).’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) “In making this assessment it is ‘the court’s responsibility . . . to accept as true the evidence favorable to the plaintiff . . . .’ [Citation.]” (Soukup, supra, 39 Cal.4th at p. 291.)

“To establish a probability of prevailing, the 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.]” (Soukup, supra, 39 Cal.4th at p. 291.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP. [Citations.]” (Ibid., fn. omitted.)

In Baral, the Supreme Court made clear that “it is not the general rule that a plaintiff may defeat an anti-SLAPP motion by establishing a probability of prevailing on any part of a pleaded cause of action. Rather, the plaintiff must make the requisite showing as to each challenged claim that is based on allegations of protected activity. . . . [W]hen the defendant seeks to strike particular claims supported by allegations of protected activity that appear alongside other claims within a single cause of action, the motion cannot be defeated by showing a likelihood of success on the claims arising from unprotected activity.” (Baral, supra, 1 Cal.5th at p. 392.)

Where the burden shifts to a plaintiff “in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity.” (Baral, supra, 1 Cal.5th at p. 395.) A plaintiff is not required to show a probability of prevailing on “another claim that is based on activity that is beyond the scope of the anti-SLAPP statute but that happens to be included in the same count. [Citation.]” (Id. at p. 393, fn. omitted.)

“We review an order granting or denying a motion to strike under section 425.16 de novo. [Citation.]” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis).) In reviewing a ruling on an anti-SLAPP motion, we “exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. [Citations.]” (Park, supra, 2 Cal.5th at p. 1067.) “In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. (§ 425.16, subd. (b)(2); Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) We do not, however, weigh the evidence, but accept the plaintiff’s submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law. (Soukup, at p. 269, fn. 3.)” (Ibid.)

C. Analysis

We deduce from plaintiff’s opening brief that he feels the trial court’s ruling was unjust, but, from a legal point of view, we find his arguments largely unintelligible. Plaintiff strongly emphasizes that “every case is different and should be evaluated independently from other cases, by an impartial judge.” (Emphasis omitted.) Nothing in record suggests that the judge was not impartial.

Plaintiff maintains that the Lafayette defendants and the judge relied upon irrelevant case law. But his brief does not set forth the governing law or detail any flaw in the trial court’s legal reasoning set forth in its written ruling that requires us to reach a different result.

Plaintiff’s appellate brief contains the conclusory statement that “[a]ttorneys for Mr. Lafayette have established incorrectly that all Lafayette’s activities [were] protected” under the anti-SLAPP statute. But plaintiff cites no authority and provides no legal analysis for that point. Plaintiff’s written legal argument in the court below did not dispute that Lafayette’s promises and representations concerning dismissal of the federal lawsuit were “oral statement[s] made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(2); see e.g., Navellier, supra, 29 Cal.4th at pp. 87, 90 [misrepresentation of intent to be bound by general release of claims during negotiation and execution of release]; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 841-842 [promises during negotiation for stipulated judgment].) Plaintiff also did not specifically argue below, and does not argue on appeal, that, if Lafayette’s alleged promises and representations were activities protected under the anti‑SLAPP statute, one or both of his causes of action did not arise from those activities within the meaning of section 425.16.

We recognize “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) But, by not specifically raising them in his opening brief, plaintiff forfeits the arguments that Lafayette’s alleged promises and representations made in connection with dismissal of the federal lawsuit were not protected activities under the anti-SLAPP statute or that, if they were protected activities, one or both of his causes of action did not arise from those activities. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); see Cal. Rules of Court, rule 8.204(a)(1)(B) & (C)[4].)

Once the burden shifted to plaintiff under the anti-SLAPP statute, plaintiff was merely required to show that his claims had minimal merit to proceed with his lawsuit. (Baral, supra, 1 Cal.5th at p. 385.) At the second stage of analysis, the evidence favorable to a plaintiff’s claims is regarded as true for purposes of the anti-SLAPP motion. (See Oasis, supra, 51 Cal.4th at p. 820; Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) But mere reiteration of the facts does not establish the legal merit of a cause of action.

The trial court concluded that the litigation privilege (§ 47, subd. (b)) barred plaintiff’s claims so he had not shown a probability of prevailing on the merits.[5] In his opening brief on appeal, plaintiff does not seek to demonstrate by reference to the legal elements of his claims and pertinent legal authorities and by citation to the evidentiary record below (see § 425.16, subd. (b)(2)) that he had a probability of success on the merits of the complaint’s causes of action and that the litigation privilege did not defeat them. Consequently, such contentions are forfeited. (See Stanley, supra, 10 Cal.4th at p. 793; rule 8.204(a)(1)(B) & (C).)

Instead of focusing on specific legal challenges and supporting them with legal argument and citation of authority, plaintiff describes anti-SLAPP motions as “the latest form of abusive litigation.” (Emphasis omitted.) But “the statute poses no obstacle to suits that possess minimal merit. [Citations.]” (Navellier, supra, 29 Cal.4th at p. 93; see id. at p. 94.) “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.” (Id. at 89.)

An appellant “cannot simply say the court erred, and leave it up to the appellate court to figure out why. [Citation.]” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) It is not an appellate court’s role to construct a theory supportive of an appeal. (See Stanley, supra, 10 Cal.4th at p. 793.)

DISPOSITION

The order granting the special motion to strike under section 425.16 is affirmed.

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