Braun v. Moser CA4/1 ( 2014 )

Filed 12/10/14 Braun v. Moser CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CONRAD J. BRAUN, D064630
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00041628-
CU-FR-CTL)
KENNETH J. MOSER,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, John S.
Meyer, Judge. Affirmed in part, reversed in part and remanded with directions.
Conrad J. Braun, in pro. per., for Plaintiff and Appellant.
William Gerald Gillespie for Defendant and Respondent.
Plaintiff and appellant Conrad J. Braun, a self-represented litigant, appeals from a
judgment in favor of defendant and respondent Kenneth J. Moser entered after the trial
court granted Moser's Code of Civil Procedure1 section 425.16 special motion to strike.
1 Statutory references are to the Code of Civil Procedure unless otherwise specified.
Section 425.16 is commonly referred to as the anti-SLAPP (Strategic Lawsuit Against
Public Participation) statute. (Navellier v. Sletten (2002) 29 Cal. 4th 82, 85.)
Braun contends the principal thrust or gravamen of his complaint was Moser's non-
litigation-related conduct in advertising Moser's residential telephone number as a
business so as to solicit lawful business calls for the purpose of filing fraudulent claims
and obtaining fraudulent judgments for Telephone Consumer Protection Act (TCPA)
violations.2 We agree with Braun, and conclude that with the exception of Braun's
claims for declaratory and injunctive relief, Moser did not establish that Braun's
complaint arose from protected speech or petitioning under the anti-SLAPP statute.
Because the anti-SLAPP statute does not apply, we need not decide whether Braun
established a probability of prevailing on the merits of those claims. As for Braun's
causes of action for declaratory and injunctive relief, we conclude the trial court correctly
granted Moser's motion. We therefore affirm in part and reverse in part the order
granting the special motion to strike and remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The background facts are taken from the allegations of Braun's complaint, which
we accept as true for purposes of Moser's motion. (Hylton v. Frank E. Rogozienski, Inc.
(2009) 177 Cal. App. 4th 1264, 1267, fn. 2.)
2 The TCPA was enacted to " 'protect the privacy interests of residential telephone
subscribers by placing restrictions on unsolicited, automated telephone calls . . . by
restricting certain uses of facsimile machines and automatic dialers.' " (Satterfield v.
Simon & Schuster, Inc. (9th Cir. 2009) 569 F.3d 946, 954; Apple Inc. v. Superior Court
(2013) 56 Cal. 4th 128, 149.)
2
In May 2008, Moser, doing business as Marketing Support Systems, wrote Braun
demanding that he pay $4,500 for an asserted TCPA violation for calling Moser's
business telephone number. That same month, Moser sued Braun in San Diego County
Small Claims Court, and was awarded $1,000 for claimed TCPA violations. Braun
eventually settled the matter with Moser.
In July 2012, Moser sent additional demand letters to Tax Defense Network and
Debt Care USA, both clients of Braun's company HomeyTel, Inc. In response, Braun
found a Better Business Bureau (BBB) listing that indicated the telephone number
belonged to Moser, dba Marketing Support Systems, from an address at Spica Drive.
Braun informed Moser that commercial business-to-business calls were exempt from the
TCPA right to a private action, and he asked Moser to stop sending demand letters
purporting his business number to be residential. In August 2012, Braun's client Tax
Defense Network told Braun that even though Moser's claim had no merit, it would settle
with Moser for $1,500 rather than risk a nuisance small claims action, and that it would
charge the settlement toward monies owed to Braun.
Thereafter, Moser filed two small claims lawsuits against Braun, HomeyTel, Inc.
and Braun's clients Debt Care USA, Adam Hungerford, and Bill Conley. Moser
dismissed Braun and HomeyTel, Inc. from the suits, but Moser obtained a judgment
against Debt Care USA, Hungerford, and Conley for $5,000 plus court costs. Moser
falsely claimed at a prove-up hearing that the telephone number dialed was his residence
number when in fact it was his business number.
3
Since 2008, Moser has filed numerous TCPA claims in which he pleaded the
telephone number called was his residential telephone number so as to obtain small
claims jurisdiction. He also falsely asserted a private right of action under the TCPA to
inflate demands in extortionate letters and lawsuits. From May 2008 to August 2012,
Moser operated an active business listing with the BBB using a telephone number ending
in 4190, but after August 2012, Moser deliberately changed the BBB listing to a different
phone number to cover up his fraud.
At some point, Moser wrote a letter to Debt Care USA, Hungerford, and Conley
notifying them about the judgments and telling them, "In the future you may not want to
take the jail house legal advice of a convicted felon like Mr. Braun. Especially after he
was stupid enough to call the same personal number he called on your behalf last year, as
he did four years ago which was the subject of the previous judgment!" Braun lost Debt
Care USA as a client.
Braun sued Moser, and in April 2013 filed an amended complaint asserting causes
of action for "loss of business and reputation due to fraud and libel" (first cause of
action), abuse of process (second cause of action), "implied and equitable indemnity"
(third cause of action) injunctive relief (fourth cause of action), and declaratory relief
(fifth cause of action). (Some capitalization omitted.) Braun generally alleged that
Moser conducted a fraudulent scheme to acquire jurisdiction and judgments in California
small claims courts. He alleged Moser had filed a "plethora of fraudulent TCPA claims"
and got away with it because the small claims courts misapplied the TCPA. According to
the complaint, "professional small claims litigants and even a few attorneys have made a
4
business out of extracting money from small business for pre-recorded B2B [business to
business] calls protected under the TCPA, . . . creating a chilling effect against a small
and fledgling legitimate B2B voice broadcasting industry." In his first cause of action,
Braun alleged Moser "began a series of 'demand letters' which were actually extortive
shakedown letters to a client of Plaintiff, by falsely representing telephone business
numbers as residential numbers and a cause of private action under TCPA." He alleged
Moser falsely stated under penalty of perjury that his home number was a business
number. In his second cause of action for abuse of process, Braun alleged Moser made
his false claim in small claims proceedings to gain judgments through fraud. In his third
and fourth causes of action, Braun sought contribution and repayment of his costs, fees
and expenses, and an order that Moser cease his demand letters and lawsuits. Finally
Braun sought a judicial declaration that limited TCPA private causes of action in certain
respects, that Moser's judgments be declared void, and that Moser be declared a vexatious
litigant.
Moser specially moved to strike the amended complaint under section 425.16. He
argued the complaint fell within section 425.16 because it sought to punish him for filing
small claims cases against Braun in 2008 and 2012, sending demand letters prior to filing
those actions, and sending a postjudgment letter to collect a judgment. Moser argued
Braun could not establish a probability of prevailing on the merits because each of his
acts was absolutely privileged under the Civil Code section 47, subdivision (b) litigation
privilege (the litigation privilege or section 47(b) privilege). Moser finally argued any
claims based on the 2008 small claims action were barred by that action's settlement as
5
well as the statute of limitations, and claims based on the 2012 lawsuit were settled by a
nonparty such that they were either barred by that settlement, or Braun's failure to sue as
the real party in interest.
In opposition, Braun asserted his complaint was brought against Moser for his
false representation of his business number as a residential telephone number to him and
his clients, causing him to lose business by abusing the court process. He characterized
Moser's actions as a "criminal enterprise . . . operating and enabled in the California court
system . . . ." According to Braun, the legal proceedings were incidental to the cause of
action and the pleadings merely provided the evidence demonstrating Braun had a
probability of prevailing on his claims.3
Following arguments on the matter, the trial court granted Moser's motion, ruling
Braun's lawsuit fell within section 425.16, subdivision (e)(1) and (2) as based on written
3 Braun additionally unsuccessfully argued the section 425.17 commercial speech
exception applied. He did not separately file an opposing affidavit or declaration, but
appended a "verification" to his opposition points and authorities stating: "I, Conrad J.
Braun, appear pro per in the above-entitled action. I have read the above and foregoing
and know the contents of complaint thereof [sic]. The same is true of my own
knowledge, except as to those matters which are therein alleged on information and
belief, and as to those matters, I believe it to be true. [¶] I declare under penalty of
perjury that the foregoing is true and correct and that this declaration was executed at San
Diego, CA." Braun also attached several documents to his opposing points and
authorities, including Internet printouts, court pleadings, and letters. In connection with
his reply papers, Moser objected to Braun's exhibits on grounds Braun improperly sought
to extend the page limits of his brief and incorporate documents into the amended
complaint. He further objected on grounds all of Braun's exhibits lacked foundation and
authentication, constituted inadmissible opinion and legal conclusions, and were hearsay.
The trial court sustained Moser's objections to Braun's exhibits, ruling they were not
authenticated, constituted hearsay and, as a consequence, Braun had not provided
evidence to support his causes of action.
6
and oral statements and writings made before a judicial proceeding, as well as in
connection with an issue under consideration by a judicial body. It found Moser's
demand letters fell within both the protection of the anti-SLAPP law as made in
anticipation of bringing an action, and within the litigation privilege. The court further
ruled the litigation privilege barred the complaint, the causes of action would not survive
demurrer, and Braun did not meet his burden to establish a probability of prevailing on
the merits.
Braun filed this appeal.4
DISCUSSION
I. Braun's First, Second and Third Causes of Action Arise from Moser's Publications in
Business Directories and Demand Letters That Are Not Protected Litigation or
Litigation-Related Activity
A. Legal Principles and Standard of Review
Section 425.16 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."
4 Braun's notice of appeal states he is appealing from an order after judgment. His
civil case statement, however, references and attaches the court's July 12, 2013 minute
order granting Moser's anti-SLAPP motion. It is clear Braun is appealing the court's
order granting the special motion to strike, which is an appealable order. (§ 425.16, subd.
(i).)
7
(§ 425.16, subd. (b)(1).) The statute identifies four classes of conduct that come within
its protection. (§ 425.16, subd. (e).5) Any cause of action "arising from" such protected
conduct shall be stricken on the defendant's motion, unless the plaintiff establishes a
"probability that [he] will prevail on the claim." (§ 425.16, subd. (b)(1).)
"The anti-SLAPP statute '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.] If the
court finds such a showing has been made, it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim.' [Citation.] [¶] 'The sole inquiry
under the first prong of the anti-SLAPP statute is whether the plaintiff's claims arise from
protected speech or petitioning activity. [Citation.] Our focus is on the principal thrust
or gravamen of the causes of action, i.e., the allegedly wrongful and injury-producing
conduct that provides the foundation for the claims. [Citations.] We review the parties'
pleadings, declarations, and other supporting documents at this stage of the analysis only
"to determine what conduct is actually being challenged, not to determine whether the
conduct is actionable." ' " (Talega Maintenance Corporation v. Standard Pacific
5 As used in the anti-SLAPP statute, " 'act in furtherance of a person's right of
petition or free speech . . . in connection with a public issue' includes: (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 on an issue of public interest." (§ 425.16, subd. (e).)
8
Corporation (2014) 225 Cal. App. 4th 722, 727-728; see also Castleman v. Sagaser (2013)
216 Cal. App. 4th 481, 490-491.)
Mere reference to protected activity does not suffice to meet the first prong.
" '[W]hen the allegations referring to arguably protected activity are only incidental to a
cause of action based essentially on nonprotected activity, collateral allusions to protected
activity should not subject the cause of action to the anti-SLAPP statute.' " (Robles v.
Chalilpoyil (2010) 181 Cal. App. 4th 566, 575.) And, " 'California courts rightly have
rejected the notion "that a lawsuit is adequately shown to be one 'arising from' an act in
furtherance of the rights of petition or free speech as long as suit was brought after the
defendant engaged in such an act, whether or not the purported basis for the suit is that
act itself." ' [Citations.] 'Moreover, that a cause of action arguably may have been
"triggered" by protected activity does not entail that it is one arising from such.' " (Id. at
p. 574; quoting City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 77 & Navellier v. Sletten,
supra, 29 Cal.4th at p. 89.)
If the defendant fails to show the lawsuit arises from protected activity, we may
affirm the trial court's ruling without addressing the probability of prevailing prong.
(Gotterba v. Travolta (2014) 228 Cal. App. 4th 35, 41; Talega Maintenance Corporation
v. Standard Pacific Corporation, supra, 225 Cal.App.4th at p. 728.) " 'Whether section
425.16 applies, and whether the plaintiff has shown a probability of prevailing, are both
questions we review independently on appeal.' " (Cheong Yu Yee v. Cheung (2013) 220
Cal. App. 4th 184, 198.)
9
B. Braun's Complaint (First, Second and Third Causes of Action) Does Not "Arise
From" Protected Pre-Litigation and Litigation Activity
We turn to the inquiry for the first prong of the anti-SLAPP statute: whether the
principal thrust or gravamen of Braun's causes of action is protected speech or petitioning
activity. (See Episcopal Church Cases (2009) 45 Cal. 4th 467, 477-478; Hylton v. Frank
E. Rogozienski, Inc., supra, 177 Cal.App.4th at p. 1272.) "If the core injury-producing
conduct upon which the plaintiff's claim is premised does not rest on protected speech or
petitioning activity, collateral or incidental allusions to protected activity will not trigger
application of the anti-SLAPP statute." (Hylton, at p. 1272.) In Wallace v. McCubbin
(2011) 196 Cal. App. 4th 1169, the appellate court explained that the gravamen for anti-
SLAPP purposes "is defined by the acts on which liability is based, not some
philosophical thrust or legal essence of the cause of action." (Id. at p. 1190.)
In his anti-SLAPP motion, with the exception of calling out Braun's claims for
declaratory and injunctive relief, Moser treated Braun's complaint as a whole. He argued
the "essence" of the complaint was that Braun was a "sore loser"; that he was "angry" he
had been sent demand letters and sued in small claims court. On appeal, Moser focuses
on Braun's allegations as to the filing of the 2008 and 2012 small claims lawsuits and
Moser's sending "fraudulent" demand letters. But Moser's arguments are not directed at
the proper inquiry. Our role is not to simply identify the presence of litigation or
statements made in the course of litigation (Robles v. Chalilpoyil, supra, 181 Cal.App.4th
at p. 575); we are required to scrutinize the complaint to identify the specific underlying
wrongful acts alleged by Braun. (See Coretronic Corp. v. Cozen O'Connor (2011) 192
10
Cal. App. 4th 1381, 1389 ["[d]etermining the gravamen of the claims requires examination
of the specific acts of alleged wrongdoing and not just the form of the plaintiff's causes of
action"; the court reviews the record "to determine what conduct is actually being
challenged"]; City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78 [for cause of action to
arise from protected activity, "the defendant's act underlying the plaintiff's cause of
action must itself have been an act in furtherance of the right of petition or free speech"],
first italics added.) As summarized above, the anti-SLAPP statute, " 'does not accord
anti-SLAPP protection to suits arising from any act having any connection, however
remote, with an official proceeding.' " (Robles, at p. 575.)
Here, close examination reveals that the principal thrust of Braun's complaint is
that Moser engaged in a deceptive scheme by publishing his residential telephone number
with the BBB and other business directories so as to induce innocent business to initiate
pre-recorded business messages to that number, which formed the basis for extortive
demands for compensation and small claims lawsuits, after which Moser changed the
number so as to conceal his fraud. We agree with Braun that Moser's false publication of
his number, his demands, and the concealing of his scheme is the wrongful conduct
underlying Braun's complaint, and that those particular actions were either done outside
of any legal process, did not amount to a written or oral statement (as to the changing of
the phone number), or constituted extortion that is not protected under the anti-SLAPP
statute as a matter of law. The conduct does not fall into any of the four categories of
section 425.16, subdivision (e). In our view, Braun's reference to the small claims
lawsuits and other litigation activity is collateral and incidental to his claims. " '[T]he
11
fact that protected activity may have triggered a cause of action does not necessarily
mean the cause of action arose from the protected activity.' " (Talega Maintenance
Corporation v. Standard Pacific Corporation, supra, 225 Cal.App.4th at p. 729, quoting
Donovan v. Dan Murphy Foundation (2012) 204 Cal. App. 4th 1500, 1507.) The fact that
Moser eventually used the court process to capitalize on his fraudulent scheme does not
bring Moser's unprotected wrongdoing within the anti-SLAPP statute, and we decline to
so hold.
Moser asserts on appeal that Braun's claim relating to Moser's deceptive BBB
publication is a "new theory" that appears nowhere in Braun's complaint. The assertion is
meritless. Braun's complaint expressly alleged that Moser was engaging in a fraudulent
scheme by which he represented his residential number to be a business number, which
"was published with the Better Business Bureau and on [Moser's] website." Braun
alleged that "Moser was at all times operating an active ongoing business listed with the
Better Business Bureau from telephone number 858-627-4190 from May 21, 2008
through August 1, 2012" and that "after August 1, 2012, [Moser] deliberately changed his
Better Business Bureau listing to 858-414-6170 to cover-up and to perpetuate his
fraudulent gain of jurisdiction and judgments in California small claims courts." He
alleged Moser's July 2012 demand letters were actually "extortive and libelous shake
down letter[s]" to Braun's clients that "falsely represent[ed] telephone business numbers
as residential numbers" so as to make out a private action under TCPA. He alleged
Moser successfully extorted $1,500 from one client, and another client ceased doing
business with HomeyTel, Inc. as a "direct result" of Moser's July 2012 letter.
12
The fact that Braun's claims are based in part on Moser's sending of demand letters
does not by definition render the underlying conduct subject to the anti-SLAPP statute.
Braun alleges the letters were extortive in that Moser demanded $4,500 for alleged TCPA
violations that were not actionable, and we are to accept his allegations as true for
purposes of the anti-SLAPP motion. (Hylton v. Frank E. Rogozienski, Inc., supra, 177
Cal.App.4th at p. 1267, fn. 2.) Where letters constitute extortion as a matter of law, they
fall outside of the anti-SLAPP law. (E.g., Flatley v. Mauro (2006) 39 Cal. 4th 299, 329-
330 [demand letter was extortion as a matter of law because it threatened to accuse the
plaintiff of or impute to him " 'crime[s]' and 'disgrace' " unless he settled by paying a sum
of money]; Stenehjem v. Sareen (2014) 226 Cal. App. 4th 1405, 1419-1420 & fn. 12 [e-
mail constituted extortion as a matter of law because it "threatened to expose Sareen to
federal authorities for alleged violations of the False Claims Act unless he negotiated a
settlement of Stenehjem's private claims" and the alleged criminal activity that Stenehjem
threatened to expose was " 'entirely unrelated to any alleged injury suffered by'
Stenehjem as alleged in his defamation and wrongful termination claims"]; Mendoza v.
Hamzeh (2013) 215 Cal. App. 4th 799, 806 ["Hamzeh threatened to report Mendoza 'to the
California Attorney General, the Los Angeles District Attorney, the Internal Revenue
Service regarding tax fraud, [and] the Better Business Bureau,' and to disclose the alleged
wrongdoing to Mendoza's customers and vendors if Mendoza did not pay 'damages
exceeding $75,000' "; this constituted criminal extortion as a matter of law because it was
a threat to report criminal conduct to enforcement agencies and plaintiff's customers,
coupled with a demand for money].)
13
In sum, Moser's motion to strike under the anti-SLAPP statute should have been
denied as to the first, second and third causes of action. We do not suggest these causes
of action are meritorious, we decide only that they are not subject to summary dismissal
by special motion to strike.
II. Braun's Claims for Declaratory and Injunctive Relief are Subject to the Anti-SLAPP
Statute and Braun Did Not Establish a Probability of Prevailing on the Merits of Those
Claims
In his causes of action for declaratory and injunctive relief, Braun sought
injunctive relief to order Moser to "cease and desist all . . . suits for pre-recorded
messages to business numbers"; and judicial declarations that would limit all TCPA
private causes of action to particular subsections of the TCPA, declare void "all of . . .
Moser's judgments in California courts gained by obtaining fraudulent TCPA jurisdiction
by claiming [his] telephone number . . . as a residential telephone [number]," and declare
Moser a vexatious litigant. Because these claims either relate to Moser's litigation
activities, or seek to prevent Moser from engaging in litigation, they arise from protected
conduct within the meaning of the anti-SLAPP statute.6 (See Equilon Enterprises v.
6 This court and others have held that injunctive and declaratory relief are equitable
remedies, not causes of action. (Faunce v. Cate (2013) 222 Cal. App. 4th 166, 173; see
also Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1360, fn. 2.) The court in Wong
held the anti-SLAPP statute applies only to " 'causes of action' " (Wong v. Tai Jing, at p.
1360, fn. 2, quoting § 425.16, subd. (b)(1)), and thus would not apply to a claim for
injunctive relief. (Ibid.) But the anti-SLAPP law uses the phrase "cause of action"
interchangeably with the terms "complaint," "claim," and "action" (see Thomas v.
Quintero (2005) 126 Cal. App. 4th 635, 646), and the California Supreme Court has
analyzed whether an action for declaratory relief combined with injunctive relief, as is
14
Consumer Cause, Inc., supra, 29 Cal.4th at pp. 57, 67-68 [declaratory relief action
seeking a declaration that notice of intent to sue failed to comply with regulations, and
request for injunction to bar defendant from filing an enforcement action was based on
defendant's activity in furtherance of its petition rights].)
Braun cannot establish a probability of prevailing on the merits of those claims.
"In assessing the probability of prevailing, a court looks to the evidence that would be
presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot
simply rely on its pleadings, even if verified, but must adduce competent, admissible
evidence." (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal. App. 4th 604, 613-
614.) Nor can a plaintiff rely on averments made on information and belief. (Wong v.
Tai Jing, supra, 189 Cal.App.4th at p. 1368 ["The plaintiff may not rely on . . . assertions
in a declaration based on information and belief"]; Evans v. Unkow (1995) 38
Cal. App. 4th 1490, 1497-1498 [an averment on information and belief is insufficient to
show a probability of prevailing].) The trial court excluded Braun's evidence submitted
in opposition to Moser's motion. Braun challenges that ruling, arguing that the court
erred by failing to accept exhibits in his verified pleadings as evidence, or alternatively,
Braun's action, falls within the anti-SLAPP statute. (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal. 4th 53, 67; see also South Sutter, LLC v. LJ Sutter Partners,
L.P. (2011) 193 Cal. App. 4th 634, 670 [anti-SLAPP motion may lie against a complaint
for declaratory relief]; Mission Springs Water Dist. v. Verjil (2013) 218 Cal. App. 4th 892,
909.) It is appropriate to assess Braun's claims for declaratory and injunctive relief to
decide whether they are based on activity protected by the anti-SLAPP statute.
15
to direct him to authenticate the exhibits so they could be accepted as evidence.7 But
Braun has not demonstrated the court abused its discretion. Other than general principles
relating to the standard of review, Braun cites no authority for his arguments. Given the
dearth of authority in his brief, Braun has forfeited his evidentiary arguments (see
Schmidt v. Bank of America, N.A. (2014) 223 Cal. App. 4th 1489, 1509), and we conclude
that under the circumstances, the trial court manifestly did not abuse its discretion in
excluding on hearsay and authentication grounds the documents attached to Braun's
opposing points and authorities.8
III. Braun's Claim Pertaining to Rehearing of Request for Injunctive Relief
In May 2013, Braun filed an ex parte application for temporary injunctive and
declaratory relief. On May 2, 2013, the trial court denied the application. Braun
thereafter filed an amended motion for leave to hear his motion for temporary injunction
concurrently with Moser's anti-SLAPP motion.
7 In connection with this claim of evidentiary error, Braun refers to exhibits attached
to his opening brief. We previously directed the court clerk to remove and return the
documents to Braun.
8 We observe that Braun attached documents to his opposition papers without a
sworn declaration identifying or authenticating the documents. Braun's verification
appended to his opposing points and authorities, which was based on information and
belief and merely attested that the "foregoing is true and correct" (see fn. 3, ante), does
not constitute the requisite authentication. Additionally, to the extent the documents were
court records, Braun did not ask the court to judicially notice them. (Evid. Code, § 452,
subd. (d).) He did not attempt to establish any foundational requirements for a hearsay
exception. (See generally, Evid. Code, §§ 1220, 1221.)
16
In its order granting Moser's special motion to strike, the trial court ruled: "The
Court notes that [Braun] also filed an 'Amended Motion for Leave to Hear Motion for
Temporary Injunction.' It is improper to file a motion without reserving a hearing date.
The Court has already denied plaintiff's motion for temporary injunction. There are no
grounds to support re-hearing [Braun's] motion."
Braun contends the court erred in its order. He does not, however, address
whether he met the fundamental requirement that a reconsideration motion be based on
"new or different facts, circumstances, or law." (§ 1008, subd. (a); see also California
Correctional Peace Officers Ass'n v. Virga (2010) 181 Cal. App. 4th 30, 43 [like motion
for reconsideration, renewed motion must be based on new or different facts,
circumstances, or law, and must be accompanied by a supporting affidavit].) Braun's
motion was based not on something new, but on the same claims made in his pleadings
and anti-SLAPP opposition papers: that he suffered irreparable injury from Moser, who
"continues to fraudulently represent his business number as a residential number and
represent that a cause for private action exists outside of TCPA section (b) and (c) to
Plaintiff and to Plaintiff's clients." (See Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674,
690 [facts of which the party seeking reconsideration was aware at the time of the
original ruling are not "new or different"].) Moreover, to the extent Braun made any
different claims, he did not explain why he could not have presented them in the first
instance. (See Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1467 [party seeking
reconsideration must provide not only new evidence but also a satisfactory explanation
17
for the failure to produce that evidence at an earlier time], disagreed with on other
grounds in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1608, fn. 5.)
We review the trial court's ruling denying reconsideration under the deferential
abuse of discretion standard. (California Correctional Peace Officers Ass'n v. Virga,
supra, 181 Cal.App.4th at p. 42; see Hale v. Sharp Healthcare (2010) 183 Cal. App. 4th
1373, 1388.) Given Braun's failure to make the statutory showing needed for
reconsideration, we conclude the trial court did not abuse its discretion in denying his
motion.
IV. Request for Sanctions
Though we have concluded the trial court erred by granting Moser's special
motion to strike certain causes of action in Braun's complaint, we reject Braun's claim
that Moser's underlying pleadings are sanctionable under section 128.7 as having no
evidentiary support, unwarranted by existing law, or generally frivolous.
V. Braun's Other Requests Including for Declaratory Relief
Braun asks this court to "clari[fy] TCPA for the lower courts and future TCPA
litigants," issue a judicial declaration that Moser is a vexatious litigant whose small
claims TCPA judgments are null and void, and refer the matter for criminal investigation.
Though Braun asserts that this court is "empowered to grant declaratory relief," he
provides no reasoned legal analysis or authority to support this proposition, nor does he
establish any legal basis or reasoning for his other requests. " '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." ' " (Lafferty v. Wells
18
Fargo Bank (2013) 213 Cal. App. 4th 545, 571-572; see also Schmidt v. Bank of America,
N.A., supra, 223 Cal.App.4th at p. 1509; H.N. & Frances C. Berger Foundation v. City of
Escondido (2005) 127 Cal. App. 4th 1, 15.) We are not bound to develop Braun's
arguments for him. (Schmidt, at p. 1509.) Braun's requests are forfeited. (Lafferty, at p.
572.)
DISPOSITION
The order granting Kenneth J. Moser's anti-SLAPP special motion to strike is
affirmed as to the striking of Conrad J. Braun's causes of action for declaratory and
injunctive relief as well as the denial of Braun's request for reconsideration, and reversed
as to Braun's first, second and third causes of action. On remand, the superior court shall
enter a new order consistent with this disposition. Braun is to recover his costs on appeal.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
AARON, J.
19