Brown v. Safeway CA1/5 ( 2021 )

Filed 10/20/21 Brown v. Safeway CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ALICE BROWN,
Plaintiff and Appellant,
A161804
v.
SAFEWAY, INC., (Del Norte County
Super. Ct. No. CVPI-2019-1127)
Defendant and Respondent.
MEMORANDUM OPINION1
Alice Brown, acting in propria persona, sued Safeway, Inc.
(Safeway) after its employee allegedly denied her a refund
totaling $4.11, told other employees and customers that Brown
lied, and called the police to falsely report her refusal to leave the
store. Brown appeals from an order granting Safeway’s special
motion to strike her intentional misrepresentation, defamation,
and discrimination causes of action, pursuant to the anti-SLAPP
statute (Code Civ. Proc., § 425.16).2
We resolve this appeal by a memorandum opinion
1
pursuant to California Standards of Judicial Administration,
standard 8.1.
Undesignated statutory references are to the Code of
2
Civil Procedure.
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Brown argues that the trial court erred by granting
Safeway’s motion “while acknowledging this case as a mixed
cause of action.” She cites Baral v. Schnitt (2016) 1 Cal.5th 376and Flatley v. Mauro (2006) 39 Cal.4th 299 as support for her
argument. She does not explain how these authorities support
her position, set forth the allegations of her operative complaint,
attempt to identify any specific allegations and explain why they
are not subject to being struck under the anti-SLAPP statute, or
support her argument with citation to the record.
As an appellate court, we must presume the trial court’s
order is correct, and the appellant bears the burden of
affirmatively demonstrating error. (Howard v. Thrifty Drug &
Discount Stores (1995) 10 Cal.4th 424, 443.) Here, Brown has not
addressed the merits of her appeal in a meaningful way. (People
v. Stanley (1995) 10 Cal.4th 764, 793 [reviewing courts may
disregard points missing cogent legal argument]; Golden Drugs
Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1468.)
She also has not identified the material facts or supported them
with proper citation to the record. (See Cal. Rules of Court, rule
8.204(a)(1)(C) [any reference to matters in record must be
supported with citation to volume and page number]; Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246.)
We acknowledge Brown filed her opening brief in propria
persona. But self-represented litigants “are held to the same
standards as attorneys.” (Kobayashi v. Superior Court (2009) 175
Cal.App.4th 536, 543; accord, Rappleyea v. Campbell (1994) 8
Cal.4th 975, 984-985.)
In any event, to the extent Brown implicitly argues, as she
did below, that Safeway’s statements to police were unprotected
under the anti-SLAPP statute because they were unlawful, we
disagree. Safeway does not admit that its police report was false.
Nor is there any uncontroverted evidence that it was false.
Safeway’s report to police is protected petitioning activity under
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section 425.16, subdivision (e)(1)-(2). (Flatley v. Mauro, supra, 39
Cal.4th at pp. 317, 320; Kenne v. Stennis (2014) 230 Cal.App.4th
953, 967 [“false” police report is protected activity under anti-
SLAPP statute if falsity is contested].) By failing to submit any
admissible evidence in support of her opposition to the motion to
strike, Brown did not meet her burden, at the second step, to
establish a probability of success on claims arising from this
protected activity. (See § 425.16, subd. (b); Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 788 [“a plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence’ ”].)
Finally, even if we could construe Brown’s conclusory
reference to “a mixed cause of action” in her opening brief as an
argument that Safeway failed to meet its burden below as the
party moving to strike the entire defamation cause of action (see
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009,
1011; Baral v. Schnitt, supra, 1 Cal.5th at pp. 384, 396), she is
barred from challenging the trial court’s order striking that cause
of action because she abandoned her prior appeal (A158754) from
the now final order striking an identical cause of action. (See §
906 [reviewing court not authorized “to review any decision or
order from which an appeal might have been taken”]; In re Baycol
Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8; In re Cicely L.
(1994) 28 Cal.App.4th 1697, 1705 [“ ‘If an order is
appealable . . . and no timely appeal is taken therefrom, the
issues determined by the order are res judicata’ ”].) We conclude
Brown has failed to demonstrate error.
DISPOSITION
The order is affirmed. The parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
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_______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
SIMONS, J.
A161804
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