Edalat v. Blaine CA2/4 ( 2021 )

Filed 12/23/21 Edalat v. Blaine CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
PAUL EDALAT, B306207
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STRO04297)
v.
ROBERT C. BLAINE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lawrence P. Riff, Judge. Affirmed.
Greer & Associates, C. Keith Greer, and C. Tyler Greer
for Defendant and Appellant.
Prospera Law, Albert T. Liou, and Shane W. Tseng for
Plaintiff and Respondent.
INTRODUCTION
“A cause of action against a person arising from any act
of that person in furtherance of the person’s right of . . . free
speech . . . in connection with a public issue shall be subject
to a special motion to strike [commonly known as an anti-
SLAPP motion1], unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (Code Civ. Proc.,
§ 425.16, subd. (b)(1).2) A party bringing such a motion must
demonstrate that the challenged claim arises from activity
protected by the statute. If the party succeeds, the court will
strike the claim unless the plaintiff demonstrates the claim
is legally sufficient and factually substantiated. (Baral v.
Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)
Based on five acts of harassment allegedly orchestrated
by appellant Dr. Robert C. Blaine, respondent Paul Edalat
asked the trial court to issue a civil harassment restraining
order against Blaine. In response, Blaine filed an
anti-SLAPP motion, which the court granted as to four of the
alleged acts of harassment. The court denied the motion as
to the fifth act -- an incident in which two men approached
Edalat in a restaurant, demanding he “drop” a lawsuit --
finding that Blaine had failed to demonstrate the act
1 “The acronym ‘SLAPP’ stands for ‘strategic lawsuit against
public participation.’” (Episcopal Church Cases (2009) 45 Cal.4th
467, 473, fn. 1.)
2 Undesignated statutory references are to the Code of Civil
Procedure.
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constituted a protected activity. Because Blaine had failed
to meet his initial burden, the court did not address whether
Edalat had sufficiently demonstrated his entitlement to a
restraining order based on the restaurant incident.
Blaine appeals the trial court’s partial denial, arguing
that because the court found four of the five acts of
harassment were protected activity, it erred in failing to
determine the merits of the entire cause of action for a
restraining order. Blaine further argues that Edalat failed
to demonstrate the sufficiency of the restaurant claim.
Edalat disagrees, contending that the court correctly
declined to reach the merits of the restaurant incident claim
because Blaine did not meet his initial burden of
demonstrating it was based on protected conduct.
We conclude that under our Supreme Court’s reasoning
in Baral, the trial court correctly declined to consider the
merits of the restaurant incident claim because Blaine failed
to make a sufficient showing that the claim arose from
protected activity. We therefore affirm the court’s order
denying in part Blaine’s anti-SLAPP motion.
STATEMENT OF RELEVANT FACTS
In June 2019, Edalat filed a request for a civil
harassment restraining order against Blaine. Edalat
explained that soon after he met Blaine in October 2017,
they entered into an agreement by which Edalat’s company
(Vivera Pharmaceuticals) would acquire Blaine’s company
(Blaine Laboratories). Edalat claimed the relationship
3
between them soured after he accused Blaine of
misrepresenting several material items relevant to Vivera’s
acquisition. Vivera sued Blaine and Blaine Laboratories in
both a civil action (the “Action”) and a separate forcible
detainer action. Edalat claimed that following the filing of
Vivera’s lawsuits, he had been subject to “an ongoing pattern
of conduct and series of events” intended to convince him to
“forego pursuit of Vivera’s rights in the Action.” Vivera gave
five examples of harassment, only one of which is at issue in
this appeal:
In May 2019, Edalat was dining with two of his
associates at a restaurant when two large men “aggressively
approached the table and demanded” to speak with Edalat
outside. When Edalat refused and asked the men to explain
themselves, they “hovered over me, invading my personal
space, and repeatedly demanded that I drop the lawsuit.”3
Edalat understood the men’s behavior “as an attempt to
intimidate me through the use of physical violence.” After
the men left the restaurant, one of Edalat’s dining
companions followed them out and asked what lawsuit the
men were referencing. They responded, “‘[T]he lab,’” which
Edalat understood to refer to Vivera’s lawsuit with Blaine
Laboratories. The court set a hearing for Edalat’s request
for a restraining order, but denied his request for a
temporary restraining order, finding his allegations did not
3 According to a police report concerning the incident, one of
Edalat’s dining companions claimed the men had told Edalat he
needed to “‘drop the lawsuit . . . so there won’t be a problem.’”
4
“sufficiently show acts of violence, threats of violence, or a
course of conduct that seriously alarmed, annoyed, or
harassed” him.4
Prior to the restraining order hearing, Blaine filed an
anti-SLAPP motion asking the court to strike Edalat’s
request for a restraining order. Blaine argued that the
incidents forming the basis of Edalat’s request were related
to ongoing litigation and concerned a public issue (Edalat’s
alleged defrauding of multiple individuals), rendering them
protected activity under the anti-SLAPP statute. Blaine
further argued that Edalat could not demonstrate a
reasonable probability of success because the harassment
incidents constituted speech protected under the litigation
privilege, because Edalat had no evidence tying Blaine to
any harassment, and because the restaurant incident did not
4 The other four incidents consisted of: (1) an anonymous
letter sent to a “Vivera advisor,” which was forwarded to Edalat
and “contained direct attacks on my personal and professional
character” that “directly mirror the allegations contained in a
cross-complaint filed by Blaine in the Action”; (2) a text message
sent to a client of Edalat’s that was forwarded to him and
included similar allegations as those made in the letter sent to
the Vivera advisor; (3) a voicemail message received from Blaine
by Edalat’s cousin and forwarded to Edalat, asking if the cousin
had been defrauded by Edalat, referencing Edalat’s bankruptcy,
and claiming that Edalat was hiding money; and (4) a text
message Edalat received from an unrecognized number, accusing
him of fraud and threatening to “expose” him as a fraud; the
message contained language that “mirrored previous
communications” directed towards Edalat by Blaine.
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amount to a “course of conduct.” Lastly, Blaine argued
Edalat had failed to show he would be irreparably harmed
absent a restraining order. In a declaration accompanying
the motion, Blaine averred that he did not direct anyone to
speak with Edalat at the restaurant, and that he was not
responsible for any of the anonymous messages described in
Edalat’s request.
The court granted Blaine’s anti-SLAPP motion as to
four of the five instances of alleged harassment, but denied it
as to the restaurant incident. As to that incident, the court
found Blaine had failed to establish the alleged conduct
constituted a protected activity. Accordingly, the court
declined to reach the second prong of the anti-SLAPP
analysis for that incident. Blaine timely appealed.
DISCUSSION
Blaine contends the trial court erred in declining to
grant his anti-SLAPP motion in its entirety. We review the
court’s decision de novo. (Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781, 788.) Our Supreme Court has
summarized the two-step analysis required by the
anti-SLAPP statute as follows: “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. . . . If the court determines that relief is sought based
on allegations arising from activity protected by the statute,
the second step is reached. There, the burden shifts to the
plaintiff to demonstrate that each challenged claim based on
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protected activity is legally sufficient and factually
substantiated. . . . If [the plaintiff fails to satisfy this
burden], the claim is stricken.” (Baral, 1 Cal.5th at 396; see
also Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 884, 887-888 [first step of anti-SLAPP analysis requires
moving party to demonstrate claim arises from protected
activity].) Here, the court found that Blaine failed to
demonstrate the restaurant incident constituted protected
activity.
In his opening brief, Blaine contends he “met his
burden under prong one of the anti-SLAPP test” because the
court found that four of the five allegations of harassment
were protected speech. In response, Edalat charges that
Blaine “continues to make no substantive claim or proffer
any evidence that the threats of two physically imposing
men—who aggressively approached Respondent while he
was at lunch—for Respondent to ‘drop the lawsuit’ [w]as
Constitutionally protected petitioning or speech activities.”
In his reply brief, Blaine contends he is not required to make
this showing because “by the trial court finding that some of
the allegedly wrongful acts were protected, step one of the
anti-SLAPP analysis as to the single cause of action was
established.”5 In other words, Blaine argues that because
5 In Blaine’s opening brief, he did not contend the court erred
in determining that the restaurant incident was not a protected
activity. In his reply brief, Blaine states that “[a]lthough the
parties dispute whether the [restaurant] incident constituted
protected activity . . . it is not necessary for the Court to decide
(Fn. is continued on the next page.)
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Edalat’s request for a restraining order was partly based on
protected activity, the trial court was obligated to determine
whether, as a whole, Edalat’s request was legally sufficient
and factually substantiated.
Though Blaine’s position finds support in Salma v.
Capon (2008) 161 Cal.App.4th 1275, we find that the
reasoning set forth in Salma has been superseded by our
Supreme Court’s analysis in Baral.6 There, the moving
party filed an anti-SLAPP motion seeking to strike specific
allegations in a complaint. (Baral, supra, 1 Cal.5th at 384.)
The trial court denied the motion, holding that an
anti-SLAPP motion could be directed “only to entire causes
these issues in order to make a determination here.” Blaine has
forfeited any argument that the court erred in determining the
restaurant incident did not constitute protected activity, both
because he failed to make this argument in his opening brief, and
because he failed, even in his reply, to support the argument with
any authority or analysis. (L.A. Taxi Cooperative, Inc. v. The
Independent Taxi Owners Assn. of Los Angeles (2015) 239
Cal.App.4th 918, 926, fn. 7 [“As this argument was first raised in
the reply brief, it is forfeited”]; WFG National Title Ins. Co. v.
Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“we may
disregard conclusory arguments that are not supported by
pertinent legal authority”].)
6 In Salma, the court held that when confronted by a cause of
action based in part on unprotected activity, but also “in part on
protected activity that was not merely incidental to allegations of
unprotected conduct,” the “cause of action arose from protected
activity and should have been stricken unless [the plaintiff]
demonstrated a probability of success on the merits.” (Salma,
supra, 161 Cal.App.4th at 1288.)
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of action as pleaded in the complaint, or to the complaint as
a whole, not to isolated allegations within causes of action.”
(Baral, supra, at 384.)
Our Supreme Court reversed, noting that the language
of section 425.16 “express[es] the Legislature’s desire to
require plaintiffs to show a probability of prevailing on ‘the
claim’ arising from protected activity, not 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.” (Baral, 1 Cal.5th at 384, 393, italics omitted.) “The
anti-SLAPP procedures are designed to shield a defendant’s
constitutionally protected conduct from the undue burden of
frivolous litigation. It follows, then, that courts may rule on
plaintiffs’ specific claims of protected activity . . . if they are
mixed with assertions of unprotected activity.” (Ibid.)
Addressing the statutory language providing that a
“cause of action” could be stricken, Baral explained: “When
the Legislature declared that a ‘cause of action’ arising from
activity furthering the rights of petition or free speech may
be stricken unless the plaintiff establishes a probability of
prevailing, it had in mind allegations of protected activity
that are asserted as grounds for relief. The targeted claim
must amount to a ‘cause of action’ in the sense that it is
alleged to justify a remedy. By referring to a ‘cause of action
against a person arising from any act of that person in
furtherance of’’ the protected rights of petition and speech,
the Legislature indicated that particular alleged acts giving
rise to a claim for relief may be the object of an anti-SLAPP
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motion. (§ 425.16(b)(1), italics added.) Thus, 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. Unless the plaintiff can do so, the claim
and its corresponding allegations must be stricken.” (Baral,
1 Cal.5th at 395.)
Our Supreme Court concluded that “[w]hen relief is
sought based on allegations of both protected and
unprotected activity, the unprotected activity is disregarded”
at the first step of the anti-SLAPP analysis. (Baral, 1
Cal.5th at 396.) “If the court determines that relief is sought
based on allegations arising from activity protected by the
statute, the second step is reached. There, the burden shifts
to the plaintiff to demonstrate that each challenged claim
based on protected activity is legally sufficient and factually
substantiated.” (Ibid.) The court then determines whether
the plaintiff’s showing is sufficient, striking the claim if it is
not. (Ibid.) However, no determination is made as to the
merits of claims based on unprotected activity. (See Bonni v.
St. Joseph Health System (2021) 11 Cal.5th 995, 1010 [when
dealing with “mixed” cause of action, “[s]o long as a ‘court
determines that relief is sought based on allegations arising
from activity protected by the statute, the second step [of the
anti-SLAPP analysis] is reached’ with respect to these
claims”], quoting Baral, 1 Cal.5th at 396, italics added;
Newport Harbor Offices & Marina, LLC v. Morris Cerullo
World Evangelism (2018) 23 Cal.App.5th 28, 49 [when
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claims based on allegations of protected activity not
coextensive with cause of action, court should consider
merits of claims arising from protected activity, not entire
cause of action].) In other words, after insufficiently
meritorious claims based on protected activity are struck,
the remainder of the cause of action proceeds outside the
anti-SLAPP framework. (See Newport Harbor Offices &
Marina, LLC v. Morris Cerullo World Evangelism, supra, 23
Cal.App.5th at 52 [directing trial court to strike portion of
cause of action based on protected activity]; Bel Air Internet,
LLC v. Morales (2018) 20 Cal.App.5th 924, 947 [striking only
portions of second and third causes of action based on
protected conduct].)
We are bound by the pronouncements of our Supreme
Court. (See, e.g., Davis v. Honeywell Internat. Inc. (2016)
245 Cal.App.4th 477, 493.) Accordingly, because Blaine has
forfeited any argument that the trial court erred in
determining that the restaurant incident did not constitute
protected activity, we hold the court correctly declined to
consider the merits of the restaurant incident claim. To the
extent Blaine seeks to challenge the legal or factual
sufficiency of what remains of Edalat’s request for a
restraining order after the court’s ruling on the anti-SLAPP
motion, he is free to do so outside the framework of the
anti-SLAPP statute.
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DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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