Sugarman v. Brown ( 2021 )

Filed 12/27/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
STEVEN A. SUGARMAN et al., B308318
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV36697)
v.
CHRISTOPHER L. BROWN,
Defendant and Respondent;
J. FRANCISCO TURNER,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Gregory Wilson Alarcon, Judge. Order on defendant
Brown’s motion affirmed; order on defendant Turner’s motion
affirmed in part and reversed in part.
*
Pursuant to California Rules of Court, rule 8.1110, this
opinion is certified for publication with the exception of part 2 of
the Discussion.
Anderson Kill California, Bridget B. Hirsch, Erik I. Jackson;
Anderson Kill and Cozen O’Connor, Jeremy E. Deutsch and
Christian V. Cangiano for Plaintiffs and Appellants.
O’Melveny & Myers, William K. Pao and David L. Iden for
Defendant and Appellant.
Foley & Lardner, Samuel J. Winer, Adrian L. Jensen,
Kathryn Shoemaker and Tony Tootell for Defendant and
Respondent.
____________________________________
SUMMARY
Plaintiff Steven A. Sugarman sued Banc of California,
several individual directors and Banc executives, and Banc’s lead
auditor, in the wake of a scandal that led to plaintiff’s resignation
from his positions at Banc in January 2017. All the defendants
filed anti-SLAPP (strategic lawsuits against public participation,
Code Civ. Proc., § 425.16) motions to strike various of the
12 causes of action plaintiff alleged. (Further statutory references
are to this section of the Code of Civil Procedure unless otherwise
specified.)
These appeals are from rulings on two of the motions: one by
the auditor, defendant Christopher L. Brown (the Brown order),
and one by defendant J. Francisco A. Turner, Banc’s interim
president and chief financial officer (CFO) until he too left Banc,
and the banking industry, in June 2017 (the Turner order). Banc,
and the other individual directors and executives as a group, also
filed anti-SLAPP motions that are the subject of a separate appeal.
(Sugarman v. Benett (Dec. 27, 2021, B307753).)
In the published portion of our opinion, we affirm the Brown
order granting defendant Brown’s motion in part. We hold
2
statements in an annual 10-K report filed with the Securities and
Exchange Commission (SEC) constitute statements “made in
connection with an issue under consideration or review by [an]
official proceeding” under section 425.16, subdivision (e)(2). In the
nonpublished portion of our opinion, we affirm the Turner order in
part and reverse it in part, concluding the trial court should have
granted defendant Turner’s motion in its entirety.
FACTS
1. The Parties
Plaintiff is the former chairman of the board, president and
chief executive officer (CEO) of defendants Banc of California, Inc.,
and Banc of California, N.A. (Banc). He resigned his positions at
Banc on January 23, 2017. The Steven and Ainslie Sugarman
Living Trust, a revocable living trust and stockholder in Banc, is
also a plaintiff. For convenience, we refer to both Mr. Sugarman
and the trust in the singular as plaintiff.
Plaintiff sued defendants in connection with their conduct
after plaintiff’s resignation. Mr. Turner was interim CFO of Banc,
and also became interim president when plaintiff resigned. (He
was not a director.) He resigned and left the banking industry on
June 12, 2017. Mr. Brown was employed by the accounting firm
KPMG, Banc’s outside auditor, and was the lead audit partner for
Banc’s 2016 fiscal year.
The other seven named defendants are or were members of
Banc’s board of directors or officers of Banc. The parties refer to
these defendants (and Mr. Turner) as the Banc individuals, and to
Banc and these defendants collectively as the Banc defendants.
2. The Complaint
The operative complaint spans 166 pages, plus more than
600 pages of attached exhibits. Plaintiff alleged 12 causes of
3
action. The seven causes of action at issue in these appeals fall
into four categories: (1) fraudulent inducement and negligent
misrepresentation to induce holder to hold securities (the
inducement claims); (2) preventing subsequent employment by
misrepresentation (blacklisting) and tortious interference with
prospective economic advantage; (3) unfair competition and
conspiracy to engage in unfair competition (the UCL claims; Bus.
& Prof. Code, § 17200 et seq.); and (4) defamation.
The complaint alleges that plaintiff reported wrongdoing and
self-dealing by defendant Halle Benett and others at Banc, and
then he resigned, after the director defendants refused to address
the wrongdoing (described at length in the complaint). A
separation agreement provided severance payments in exchange
for mutual releases of all potential claims that existed as of
January 23, 2017. Defendants immediately launched a campaign
to attack plaintiff in order to conceal their wrongdoing, dissuade
him from selling his Bank stock, and harm his ability to compete
with defendants.
In addition to concealing “numerous illegal acts” and
breaching various contracts, defendants “also have hidden from
[plaintiff] the true state of Banc’s business including its cratering
financial performance since his departure,” and took various
actions “to obscure the devastating effects their illegal actions had
on Banc’s business, financial performance and prospects.
Defendants made their false representations in order to harm
[plaintiff] including in order to induce [plaintiff] to hold his Banc
securities in reliance on the false information, promises, and
disclosures.” The complaint alleges defendants “have conducted a
coordinated campaign . . . to further their Cover Up, to damage
[plaintiff’s] reputation with a barrage of vindictive, untrue, and
4
harmful actions; to publish and distribute false and misleading
information intended to present [plaintiff] in a negative light; and
to scapegoat [plaintiff] for their wrong-doing and [m]isconduct
which has resulted in tens of millions of dollars of damages to
[plaintiff].”
We will describe the allegations in more detail in our legal
discussion.
3. Background Facts
As might be expected, plaintiff and defendants paint a very
different picture of the circumstances surrounding plaintiff’s
resignation and the aftermath. Some background facts are not
open to dispute.
Plaintiff is a prominent businessman and entrepreneur in
California and headed Banc from 2013 until January 2017.
On October 18, 2016, an anonymous blogger made
allegations of wrongdoing against Banc and senior officers and
directors at Banc, claiming they had extensive ties to notorious
fraudster Jason Galanis, who was known for secretly gaining
control of financial institutions and other public companies and
looting their assets. The blog post concluded Banc was “simply un-
investible.” Plaintiff was prominent among the officers and
directors named in the blog post.
That same day, Banc published a press release announcing it
was aware of the allegations posted; the board, acting through its
disinterested directors, had previously begun a thorough
independent investigation of claims of an affiliation between
Galanis and company personnel; the board had received regular
reports over the last year from the law firm leading the
investigation; and certain claims of affiliations made by Galanis
5
concerning a company in which plaintiff had an interest were
fraudulent.
Three months later, on January 23, 2017, Banc issued two
more press releases. One announced a new chairman of the board
(defendant Sznewajs) and plaintiff’s resignation. The other
provided an update on the independent investigation into the blog
post allegations. It stated that, in response to the allegations in
the blog post, the board formed a special committee that began a
process to review the allegations. On October 27, 2016, Banc’s
independent auditor, KPMG, sent a letter “raising concerns about
allegations of ‘inappropriate relationships with third parties’ and
‘potential undisclosed related party transactions.’ ” On October 30,
2016, the special committee hired a law firm with no prior
relationship with Banc to conduct an independent investigation of
the issues raised by the blog post and questions raised by the
KPMG letter.
The press release further stated the inquiry had determined
that Banc’s initial October 18, 2016 press release contained
inaccurate statements. While an investigation had been conducted
before the blog post appeared, “it appears to have been directed by
Company management rather than any subset of independent
directors,” and the press release did not disclose that the law firm
conducting the investigation had previously represented both Banc
and plaintiff individually. (A declaration from a lawyer for the
Banc individuals states that plaintiff ordered the October 18 press
release to be published; plaintiff’s declaration states others at Banc
drafted and disseminated the release.)
The press release reported that on January 12, 2017, the
SEC “issued a formal order of investigation directed at certain of
the issues that the Special Committee is reviewing,” and
6
subpoenaed documents from Banc, “primarily relating to the
October 18, 2016 press release and associated public statements.”
The January 23, 2017 press release also announced changes
in corporate governance policies, including separating the roles of
board chair and CEO, and indicated Banc was “in the process of
preparing a more rigorous policy to govern review and approval of
proposed related party transactions.”
Also on January 23, 2017, the first of several class action
complaints was filed, alleging violation of federal securities laws,
naming Banc, plaintiff, and two other defendants. The complaint
described the blog post and ensuing events, and alleged false or
misleading communications to investors and failures to disclose
material information relating to the blog post investigation.
On February 9, 2017, the law firm conducting the
independent investigation for the special committee reported that
its inquiry found no evidence Jason Galanis had any control or
undue influence over Banc.
More than two and a half years later, on September 15,
2019, the lead plaintiff in the securities litigation agreed to dismiss
Mr. Sugarman with prejudice. The agreement states the class
action plaintiff found no proof Galanis had any control over
Mr. Sugarman or affected his actions, and the October 18, 2016
press release reflected information provided to Mr. Sugarman.
The agreement provided the dismissal with prejudice was to
become effective upon approval of the agreement as well as a
settlement with Banc.
A month later, plaintiff filed the complaint in this case.
Several weeks after that, plaintiff was voluntarily dismissed,
without prejudice, from Banc stockholder derivative litigation.
7
On December 20, 2019, the SEC concluded its investigation
of plaintiff, with no action being taken.
4. The Anti-SLAPP Motions and Rulings
This appeal concerns only the separate anti-SLAPP motions
brought by Mr. Turner and Mr. Brown. We will describe the
motions, relevant facts and rulings in the separate legal
discussions of the Brown and Turner motions.
The trial court granted Mr. Brown’s motion to strike
allegations that concerned Mr. Brown’s sign-off representation as
lead auditor in Banc’s 2016 audit report. The court granted
Mr. Turner’s motion to strike plaintiff’s fraudulent inducement
and reputational harm causes of action, and denied Mr. Turner’s
motion to strike plaintiff’s UCL causes of action.
Plaintiff appealed from the Brown order, and from the
Turner order striking the inducement and reputational harm
claims. Mr. Turner appealed from the Turner order denying his
motion to strike the UCL claims.
DISCUSSION
The anti-SLAPP statute and procedures have been described
many times.
A defendant may bring a special motion to strike any cause
of action “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 . . . .” (§ 425.16, subd. (b)(1).) When ruling on an anti-
SLAPP motion, the trial court employs a two-step process. The
moving defendant bears the initial burden of establishing that the
challenged allegations or claims “ ‘ “aris[e] from” protected activity
in which the defendant has engaged. [Citations.] If the defendant
carries its burden, the plaintiff must then demonstrate its claims
8
have at least “minimal merit.” ’ [Citation.] If the plaintiff fails to
meet that burden, the court will strike the claim.” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 884.)
In making these determinations, the trial court considers
“the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) “As to the second step, 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.’ ” (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 788.)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
1. Mr. Brown’s Anti-SLAPP Motion
Plaintiff alleged two causes of action against Mr. Brown
based on the same facts. Plaintiff alleged Mr. Brown made
misrepresentations that induced plaintiff to hold his Banc common
stock and warrants. The misrepresentations alleged were of two
types.
First, plaintiff alleged misrepresentations in January 2017
(before he resigned), that Mr. Brown made directly to him, that
Mr. Brown would conduct a thorough investigation of plaintiff’s
allegations of wrongdoing, and KPMG would not certify Banc’s
financials until ensuring the disclosures were accurate and
truthful.
The second kind of misrepresentation was Mr. Brown’s “sign-
off representation” in the audit report. The complaint alleged
plaintiff was “induced to hold his Banc securities because of
representations by Defendant Brown including his personal sign
off as lead audit partner on the Banc’s 2016 fiscal year financial
9
audit on March 1, 2017,” and further referred to the “March 1,
2017 Form 10K attaching the financial statements with Defendant
Brown’s knowingly false audit report,” all attached to the
complaint.
Mr. Brown sought to strike both causes of action in their
entirety. The trial court granted Mr. Brown’s motion in part.
The court found Mr. Brown did not show the direct
representations he made to plaintiff in January 2017 were
protected activity. Mr. Brown’s sign-off representation in the audit
report, however, was a statement included in a 10-K annual report
filed with the SEC, and thus was protected activity as a statement
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” (§ 425.16, subd. (e)(2)).
Further, the court found plaintiff did not show a probability
of prevailing on his claim. Plaintiff instead argued (contrary to the
allegation in his complaint just quoted) that the audit report was
not the misrepresentation on which he relied; he complained only
of the January 2017 personal statements made directly to him; and
the audit report was merely “evidence which misled Sugarman to
believe that Brown actually followed through on his January 2017
assurances.” The trial court rejected this contention.
Mr. Brown does not challenge the court’s ruling that he did
not establish his direct statements in January 2017 were protected
activity. The only issue on appeal is Mr. Brown’s sign-off
representation in the audit report. We conclude the
representations in the audit report were protected activity, and
plaintiff failed to show a probability of prevailing on his claim.
10
a. Protected activity
Plaintiff argues first that Banc’s 10-K, containing Banc’s
2016 fiscal year financial audit dated March 1, 2017—and
Mr. Brown’s sign-off on that audit—is not protected activity.
Plaintiff cites no authority for that proposition, and instead
contends the precedent the trial court relied on—Hawran v. Hixson
(2012) 209 Cal.App.4th 256 (Hawran)—does not support it. We
think otherwise.
The categories of activity protected under the statute appear
in section 425.16, subdivision (e). They include any written or oral
statement or writing (1) “made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law” or (2) “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” or (3) “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.” (§ 425.16. subd. (e)(1)–(4).)
In Hawran, “the trial court found [the defendant company’s]
Form 8-K put the issues identified in the form under consideration
or review by the SEC,” and that the company’s press release, “from
which [the plaintiff’s] claims arose, was thus protected as a writing
‘made in connection with an issue under consideration or review by
. . . any other official proceeding authorized by law,’ ” quoting
subdivision (e)(2). (Hawran, supra, 209 Cal.App.4th at p. 269.)
The Court of Appeal continued: “This finding alone subjects [the
plaintiff’s] claims to section 425.16.” (Ibid.) But the court went on
to indicate that the plaintiff stated he would not challenge the trial
11
court’s finding that his claims fell within subdivision (e)(2) (instead
contending unsuccessfully that the commercial speech exception
applied). Consequently, the court stated it “need not reach the
correctness of that finding.” (Hawran, at p. 270.) Later, however,
in a discussion of the fair reporting privilege, the court observed
that the Form 8-K “was filed for the purpose of complying with the
SEC’s mandatory disclosure requirements,” and “may constitute a
writing before an official proceeding,” citing Fontani v. Wells Fargo
Investments, LLC (2005) 129 Cal.App.4th 719, 731-732 (Fontani).1
(Hawran, at p. 281.)
In Fontani, the court held that the defendant’s report to the
National Association of Securities Dealers (NASD) on a Form U-5,
describing the reasons for the plaintiff’s termination, was protected
activity under subdivision (e)(1) of the statute (statements made
“before . . . [an] official proceeding authorized by law”), and under
subdivision (e)(4) (any other conduct in connection with an issue of
public interest). (Fontani, supra, 129 Cal.App.4th at pp. 725, 728.)
The court concluded the NASD was “a regulatory surrogate for the
SEC,” and “[b]ecause at least one purpose of a Form U-5 is to
trigger a regulatory investigation where warranted [citation], the
NASD requires and receives [Form U-5’s] from members in its role
as the primary regulatory body of the broker-dealer industry.”
(Id. at p. 729.) Further, “the NASD is the type of regulatory body
before which communication is routinely protected by the anti-
SLAPP law.” (Id. at p. 730.)
In Fontani, the plaintiff argued that “not every
communication related to an official body, no matter how
1 Fontani was disapproved on other grounds in Kibler v.
Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192,
203, footnote 5.
12
tangential that relation may be, qualifies as being made before an
official proceeding under the anti-SLAPP law.” (Fontani, supra,
129 Cal.App.4th at p. 731.) The court said that argument did not
apply in the case before it, because subdivision (e)(1) “encompasses
communications designed to prompt official action,” and “an NASD
investigation is at least one potential consequence of a Form U-5
filing that contains allegations of improper conduct by a broker-
dealer.” (Fontani, at p. 731.) The court concluded the Form U-5
was therefore a communication made in anticipation of the
bringing of an official proceeding, and “constitute[d] a
communication before an official proceeding authorized by law
under section 425.16, subdivision (e)(1).” (Id. at p. 732.)
Fontani also concluded that the defendant’s statement to the
NASD “concerned possible conduct capable of affecting a
significant number of investors,” and consequently “the Form U-5
contents concerning [the plaintiff’s] purported misconduct . . .
concern a matter of public interest under section 425.16,
subdivision (e)(4).” (Fontani, supra, 129 Cal.App.4th at p. 733.)
Neither Hawran nor Fontani directly addresses whether
statements in an annual 10-K report filed with the SEC constitute
statements “made in connection with an issue under consideration
or review by [an] official proceeding” under subdivision (e)(2). But
we think that is necessarily so given the SEC’s mandatory
disclosure and review requirements. The SEC is required by law
to review disclosures made by issuers of securities, “including
reports filed on Form 10-K,” “on a regular and systematic basis”
and no less frequently “than once every 3 years.” (15 U.S.C.
§ 7266, subds. (a) & (c).) “Such review shall include a review of an
issuer’s financial statement.” (15 U.S.C. § 7266, subd. (a).) In our
view, this alone subjects plaintiff’s claims against Mr. Brown to the
13
anti-SLAPP statute. Moreover, in this case the audit report in the
10-K specifically addressed the October 2016 blog post and Banc’s
subsequent actions—matters that were, as the audit report
indicated, then under investigation by the SEC. Under these
circumstances, we conclude the audit report statements in the 10-
K filing qualify for anti-SLAPP protection as statements “made in
connection with an issue under consideration or review” by the
SEC. (§ 425.16, subd. (e)(2).)
Plaintiff contends that his claims against Mr. Brown did not
arise from the audit report, and instead the audit report is merely
evidence that plaintiff justifiably relied on Mr. Brown’s earlier oral
representations in January 2017. We disagree with plaintiff’s
contention, which is contradicted by his own verified complaint.
“[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 v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1060 (Park).) Park explained:
“A claim arises from protected activity when that activity underlies
or forms the basis for the claim. [Citations.] Critically, ‘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.’ [Citations.] . . . [T]he focus is on determining
what ‘the defendant’s activity [is] that gives rise to his or her
asserted liability.” (Id. at pp. 1062–1063.)
Here, the audit report in the 10-K filing clearly “forms the
basis for” plaintiff’s fraudulent inducement claims and “ ‘gives rise
to [Mr. Brown’s] asserted liability.’ ” (Park, supra, 2 Cal.5th at
pp. 1062, 1063.) Plaintiff said so himself in his verified complaint.
For example, the complaint alleges plaintiff was induced to hold
14
his Banc securities “because of representations by Defendant
Brown including his personal sign off as lead audit partner on the
Banc’s 2016 fiscal year financial audit on March 1, 2017.” And,
“[t]he March 1, 2017 Form 10K attaching the financial statements
with Defendant Brown’s knowingly false audit report was signed,
inter alia, by Defendants Boyle, Turner, Sznewajs, Benett, Karish,
Schnel and Lashley. These defendants knew that the statements
in the Form 10K and attached audit report were false and
misleading.”
We see no basis to conclude the “knowingly false audit
report” did not give rise to Mr. Turner’s asserted liability, or that it
“merely provides evidence that supports Plaintiff[’s] fraud-based
claims,” particularly since plaintiff expressly alleged he was
induced to hold his securities because of representations in the
audit report.
b. Probability of prevailing
Plaintiff presented no evidence on the merits of his claim,
simply arguing the audit report was only evidence and not the
misrepresentation on which he relied—the contention we have just
rejected. Plaintiff offers no other evidence to establish the
elements of fraudulent inducement or negligent misrepresentation,
and accordingly has not shown a probability of prevailing on the
claims that Mr. Brown’s audit report sign-off induced him to hold
his securities. The trial court correctly struck those allegations.
[Begin nonpublished portion]
2. Mr. Turner’s Anti-SLAPP Motion
Plaintiff alleged six causes of action against Mr. Turner: the
inducement claims, the reputational harm claims, and the UCL
claims. We discuss the allegations, the evidence, and our
15
conclusions separately for the inducement claims, and then turn to
the other claims.
a. The inducement claims: the facts
Plaintiff alleged Mr. Turner made significant
misrepresentations on which plaintiff reasonably relied to hold,
rather than sell his stock. These misrepresentations were made in
six investor presentations, in an earnings call, and in a 10-Q
quarterly report of financial performance filed with the SEC.
The misrepresentations related to Banc’s financial
projections, including optimistic earnings per share guidance
asserting Banc “would make $2.00 per share and achieve very
attractive financial returns across multiple metrics.” Plaintiff’s
complaint cites and attaches Banc’s Form 8-K’s filed with the SEC,
which attach the investor presentation materials containing the
earnings per share guidance.2
Mr. Turner’s alleged misrepresentations “also related to
Banc’s ‘significantly enhanced corporate governance,’ and other
similar statements related to Banc’s internal controls.”
Earnings per share missed the January 30, 2017 guidance by
over 60 percent.
Mr. Turner’s anti-SLAPP motion contended the inducement
causes of action arose from protected activity—from statements in
SEC filings, investor presentations, and press releases about
Banc’s internal controls and efforts to improve corporate
governance—all of which were statements made to the public
2 “The SEC requires disclosure of specified material changes
and other events ‘that the registrant deems of importance to
security holders’ whenever they occur via a Form 8-K.” (Hawran,
supra, 209 Cal.App.4th at p. 263, fn. 2.)
16
about an issue of public interest under section 425.16,
subdivision (e)(4). Plaintiff could not establish a probability of
prevailing, Mr. Turner argued, because they could not establish
they relied on Mr. Turner’s statements when deciding to hold their
securities, or that he made statements with the intent to induce
plaintiff’s reliance.3
In response to Mr. Turner’s motion and to the other anti-
SLAPP motions, plaintiff submitted an 80-page declaration, along
with several other declarations. (The other declarations relate to
plaintiff’s reputational harm and UCL claims, discussed post.)
Mr. Turner filed 140 objections, many of which were sustained.
The trial court found all of plaintiff’s allegations against
Mr. Turner arose from protected activity under subdivision (e)(4).
The court stated the allegations that Mr. Turner participated in a
May 3, 2017 earnings call, and approved and signed a 10-Q filed by
Banc on May 10, 2017, misrepresenting Banc’s financial position
including inflated earning guidance, were public statements
relating to Banc’s financial position “with a likelihood to impact
individual investors as well as ‘market sectors or the markets as a
whole,’ ” citing Fontani, supra, 129 Cal.App.4th at page 733.
Plaintiff could not prevail on these claims, the court said, because
the allegations related to forward-looking predictions that were
nonactionable opinions, and there was no competent evidence the
representations were false when made.
b. The inducement claims: the law
Section 425.16, subdivision (e)(4) protects any conduct in
furtherance of the exercise of free speech or petition rights “in
3
Mr. Turner also contended the negligent misrepresentation
claim was barred by the statute of limitations.
17
connection with a public issue or an issue of public interest” (ibid.),
and is referred to as “the catchall provision” (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 140 (FilmOn)). FilmOn—a
case we discuss in more detail post in connection with plaintiff’s
other claims—tells us the catchall provision “demands ‘some
degree of closeness’ between the challenged statements and the
asserted public interest” (id. at p. 150), and that we consider the
context, “including audience, speaker, and purpose” (id. at p. 152).
The fraudulent inducement claims concern Mr. Turner’s
statements about Banc’s financial projections—statements made in
earnings calls, and in reports to the SEC containing inflated
earnings projections. We agree with the trial court’s assessment
that these were public statements relating to Banc’s financial
position, and were likely to impact individual investors and market
sectors or the markets as a whole.
“[C]onduct capable of affecting a significant portion of the
investing public can meet the test” under the catchall provision.
(Fontani, supra, 129 Cal.App.4th at p. 732.) “[A] publicly traded
company with many thousands of investors is of public interest
because its successes or failures will affect not only individual
investors, but in the case of large companies, potentially market
sectors or the markets as a whole.” (Global Telemedia Int’l, Inc. v.
Doe 1 (C.D.Cal. 2001) 132 F.Supp.2d 1261, 1265.) The financial
projections of a large, publicly traded company like Banc are of
great interest to a significant community of investors.
When we consider the context of Mr. Turner’s statements on
the earnings call and earnings guidance in the 10-Q report—
“including audience, speaker, and purpose” (FilmOn, supra,
7 Cal.5th at p. 152)—we find the statements had a high “ ‘degree of
closeness’ ” (id. at p. 150) to the public interest in the well-being (or
18
not) of a publicly traded company with many investors. Those
statements were thus made “in connection with a public issue or
an issue of public interest.” (§ 425.16, subd. (e)(4).)4
We also agree with the trial court that plaintiff failed to
make a prima facie showing he would prevail on his inducement
claims against Mr. Turner. As the court observed, statements or
predictions about future events (the anticipated $2 per share
earnings guidance for 2017) are deemed nonactionable opinions,
and there was no admissible evidence that the representations in
investor presentations and earnings calls were false when made.
Plaintiff cites federal district court cases stating that
forward-looking statements accompanied by cautionary language
are not immunized under federal securities laws where “plaintiffs
have alleged facts suggesting that defendants had actual
knowledge of the falsity of their statements.” (E.g., In re PMI
Group, Inc. (N.D.Cal. Nov. 2, 2009, No. C 08-1405) 2009
U.S.Dist.Lexis 101582, at p. *11.) These cases do not help
plaintiff, who presented no admissible evidence suggesting that
4 Our decision on this point makes it unnecessary to address
Mr. Turner’s contention that his alleged statements giving rise to
both the inducement and reputational harm claims were also
protected as communications made in connection with the then-
ongoing securities fraud class action litigation and the SEC
investigation, under section 425.16, subdivision (e)(2). In that
connection, we also deny plaintiff’s request for judicial notice of the
complaint filed in DeFrees v. Kirkland (C.D.Cal. Aug. 23, 2012,
Nos. CV 11-4272, CV 11-4574) 2012 U.S.Dist.Lexis 195922), which
pertains only to Mr. Turner’s contention about protected activity
under subdivision (e)(2).
19
defendants knew the earnings guidance or statements in the
earnings call were false when made.
Plaintiff says we may infer knowledge of falsity of
Mr. Turner’s financial projections from other evidence, but that
evidence has no bearing on the earnings guidance at the time it
was issued.5 Then he cites paragraphs 147 and 148 of his own
declaration, but this gets him nowhere either.
In paragraph 147, plaintiff quotes the complaint’s allegation
that Mr. Turner knew the earnings guidance was false because he
stated to others in February 2017 “that earnings per share were
coming in well below guidance and Banc was seeking to
manipulate earnings to obscure that fact from the market and
from [plaintiff].” The trial court sustained Mr. Turner’s objection
to that paragraph of plaintiff’s declaration.
The next paragraph (¶ 148) stated that “Turner made these
statements to colleagues and Banc employees, including Jeff
Seabold, the then-Vice chairman at Banc, on or about February
2017.” The court overruled Mr. Turner’s objection to paragraph
148.
Plaintiff contends that Mr. Turner’s statements to Seabold
(the content of which is not in evidence due to the sustained
objection) and Seabold’s statements to plaintiff (presumably to the
same effect, although plaintiff does not specifically say so) “are not
5 Plaintiff says we can infer Mr. Turner knew the earnings
guidance was false from (1) later conversations with defendant
Boyle after the earnings results did not come to pass, to the effect
they would blame plaintiff; (2) Mr. Turner’s attempt to pump up
earnings by liquidating capital assets; (3) Mr. Turner’s
participation in the cancellation of bonuses; and (4) Mr. Turner’s
“attempts to intimidate and silence any potential whistleblowers.”
20
hearsay, as Turner is a party . . . and both Turner and Seabold
were employees of Banc, which is also a party . . . , and thus, their
statements are either admissions or admissions on behalf of Banc.”
We think not. Plaintiff does not explain or offer authority for
the proposition, in effect, that any alleged statement by a party is
an admission, no matter how many levels of hearsay are involved.
“Multiple hearsay may not be admitted unless there is an
exception for each level.” (People v. Sanchez (2016) 63 Cal.4th 665,
675.) Here, plaintiff says that Seabold (who is not a party) said
that Turner said Banc was seeking to manipulate earnings. That
is at least double hearsay. Nor does plaintiff offer any authority to
support the assertion that Seabold’s hearsay statement was an
“admission[] on behalf of Banc.” Plaintiff does not even trouble to
refer to the Evidence Code at all.
In short, plaintiff presented no admissible evidence
Mr. Turner knew or should have known the earnings guidance was
false when made, and so has not made a prima facie case
supporting his fraudulent and negligent inducement claims.
c. The reputational harm and UCL
claims: the facts
In his claims for blacklisting, tortious interference with
prospective economic advantage, violation of the UCL and
conspiracy to violate the UCL, plaintiff alleged that Mr. Turner
made certain statements that caused plaintiff reputational harm
and interfered with his business relationships after he left Banc.
Plaintiff alleged (and produced declarations in response to
Mr. Turner’s motion) that Mr. Turner and others “discussed how
they were going to make sure that [plaintiff] was ‘crushed.’ ”
A declaration from Martice Mills further stated that Mr. Turner
and others discussed “that they had to convince investors that
21
Banc’s poor performance during the first quarter was really
[plaintiff’s] fault and so they were going to do whatever it took to
make sure [plaintiff] was blamed for everything negative at Banc.
They also stated that they knew that what they were doing would
cause his future ventures to ‘fail’ and that it was important that
his new businesses failed and he didn’t land at a new bank quickly
or the suggestion that he was to blame would not be as plausible.”
Mr. Mills described other conversations among Banc employees
where Mr. Turner said that plaintiff “did improper and illegal
things while CEO of Banc”; and that he (Turner) “could handle
KPMG and Chris Brown and that everything was going to just be
blamed on [plaintiff].”
A declaration from Paul Simmons, chief credit officer of Banc
at the time, stated he attended an investor conference in March
2017. He was standing with Mr. Turner and defendant Boyle,
when “[n]umerous analysts and investors approached us to find
out what really happened with [plaintiff’s] departure. Turner and
Boyle told the analysts and investors that [plaintiff] was unethical,
that he had broken securities laws and bank regulations, that he
had engaged in self-dealing, that Banc was hard pressed to recover
from the damage that he had done to Banc.” Two other former
Banc employees, Heather Endresen and Gary S. Dunn, also
declared Mr. Turner said that plaintiff had done bad and unethical
things while he was at Banc.
Plaintiff identified several entities with whom he had
economic relationships, and asserts he “lost those relationships
and benefits as a result of Turner’s interference.” The Mills and
Simmons declarations stated that J.P. Morgan Chase, Silvergate,
Texas Capital Bank and Wells Fargo “declined to do business
with,” or in one case delayed investments in, two of plaintiff’s
22
businesses. (Plaintiff does not specify any communications by
Mr. Turner with those entities.)
Similarly, plaintiff’s complaint alleged that Banc defendants
engaged in unfair competition against plaintiff by pressuring third
parties not to do business with him, and by making false and
defamatory statements that plaintiff had engaged in unlawful
behavior. The complaint alleged plaintiff and defendants are
competitors, and defendants’ attacks on plaintiff’s “reputation,
relationships, financial strength, and ability to fairly compete with
Banc” were made “in order to keep [plaintiff] from competing with
the Defendants in the banking business and within private equity
and financial services.” This resulted in plaintiff’s inability to
pursue suitable replacement employment or other profitable
partnerships with banks and other financial services
organizations.
Mr. Turner contended these claims, too, were statements
made to the public about an issue of public interest. Plaintiff could
not establish a probability of prevailing, Mr. Turner argued,
because the statute of limitations barred the blacklisting and
interference claims. And, plaintiff could not show Mr. Turner
made any of the alleged statements to a prospective employer or
third party with whom plaintiff had an existing economic
relationship.
The trial court found plaintiff’s allegations against
Mr. Turner arose from conduct protected by the catchall provision
as statements or conduct “in connection with a public issue or an
issue of public interest” under subdivision (e)(4). The allegations
“that Mr. Turner signed off on publicly filed documents with
statements regarding [plaintiff’s] departure from Banc” were
protected; the “high-profile nature of [plaintiff’s] departure from
23
Banc and the reasons for his departure, could have impacted
individual investors and the markets, and was of concern to a
substantial number of people.” And the statements made in
private communications related to plaintiff’s departure from Banc
were protected because they concerned a public issue; citing the
FilmOn case, the court said “[t]he statements as alleged may
contribute to the public conversation despite . . . being made to
individuals in some circumstances, rather than larger groups.”
The court found plaintiff failed to establish a probability of
prevailing on the reputational harm claims, both of which were
barred by the statute of limitations (one year for the blacklisting
claim and two years for the interference claim). (Mr. Turner’s
latest statement occurred in May 2017, and the complaint was
filed in October 2019.) The court observed that plaintiff “[has] not
refuted this contention,” and further stated plaintiff produced no
admissible evidence Mr. Turner made any statements concerning
plaintiff “in 2017–2019.”
The court reached a different conclusion on plaintiff’s UCL
claims, finding plaintiff had presented evidence “adequate to show
‘minimal merit’ ” to those claims. The court cited the Mills, Dunn,
Endresen, and Simmons declarations described above, and
concluded that evidence was sufficient to establish plaintiff’s
unfair competition claims had minimal merit “as unfair business
practices.”
d. The reputational harm and
UCL claims: the law
Plaintiff contends the trial court erred when it concluded
Mr. Turner’s communications about plaintiff’s conduct at and
departure from Banc were protected under the catchall provision.
We disagree.
24
i. Protected activity
under the catchall provision
Our analysis is informed by FilmOn, which provides
direction on how a court should analyze whether communications
qualify for anti-SLAPP protection under the catchall provision.
(FilmOn, supra, 7 Cal.5th at pp. 142–143.) The court first
concluded that we “must consider the context as well as the
content of a statement in determining whether that statement
furthers the exercise of constitutional speech rights in connection
with a matter of public interest.” (Id. at p. 149.) The court then
explained:
“The inquiry under the catchall provision . . . calls for a two-
part analysis rooted in the statute’s purpose and internal logic.
First, we ask what ‘public issue or . . . issue of public interest’ the
speech in question implicates—a question we answer by looking to
the content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask
what functional relationship exists between the speech and the
public conversation about some matter of public interest. It is at
the latter stage that context proves useful.” (FilmOn, supra,
7 Cal.5th at pp. 149–150.)
“In articulating what constitutes a matter of public interest,
courts look to certain specific considerations, such as whether the
subject of the speech or activity ‘was a person or entity in the
public eye’ or ‘could affect large numbers of people beyond the
direct participants’ (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883,
898[]); and whether the activity ‘occur[red] in the context of an
ongoing controversy, dispute or discussion’ [citation], or ‘affect[ed]
a community in a manner similar to that of a governmental entity’
[citation].” (FilmOn, supra, 7 Cal.5th at pp. 145–146.)
25
“We are not concerned with the social utility of the speech at
issue, or the degree to which it propelled the conversation in any
particular direction; rather, we examine whether a defendant—
through public or private speech or conduct—participated in, or
furthered, the discourse that makes an issue one of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 151.) “[A] statement is
made ‘in connection with’ a public issue when it contributes to—
that is, ‘participat[es]’ in or furthers—some public conversation on
the issue. [Citation.] But the inquiry of whether a
statement contributes to the public debate is one a court can
hardly undertake without incorporating considerations of
context—including audience, speaker, and purpose.” (Id. at
pp. 151–152.)
In FilmOn, the defendant provided confidential reports to its
clients that labeled websites as containing “adult content” or
“copyright infringement” material, and one of the websites sued
the defendant, alleging disparagement of its digital distribution
network. (FilmOn, supra, 7 Cal.5th at p. 140.) The reports were
issued privately, “to a coterie of paying clients,” who use the
information “for their business purposes alone. The information
never entered the public sphere, and the parties never intended it
to.” (Id. at p. 153.) The court found the defendant’s reports “—
generated for profit, exchanged confidentially, without being part
of any attempt to participate in a larger public discussion—do not
qualify for anti-SLAPP protection under the catchall provision,
even where the topic discussed is, broadly speaking, one of public
interest. This is not because confidential statements made to serve
business interests are categorically excluded from anti-SLAPP
protection. It is instead because [the defendant’s] reports are too
tenuously tethered to the issues of public interest they implicate,
26
and too remotely connected to the public conversation about those
issues, to merit protection under the catchall provision.” (Id. at
p. 140.)
ii. This case
As FilmOn directs, we first “identify[] the relevant matters
of public interest” and then move “to addressing the specific nature
of defendant’s speech and its relationship to the matters of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 152.)
In contrast to the reports involved in FilmOn, here, the
circumstances of plaintiff’s departure from Banc were a topic of
considerable public discussion at the time. Beginning on
October 18, 2016, when the blog post first publicized the
allegations against Banc and plaintiff, the record is replete with
public discussion of Banc, plaintiff’s conduct at Banc and his
departure on January 23, 2017. There were press releases from
Banc, securities fraud lawsuits, an SEC investigation, and articles
on websites and in the Los Angeles Times and other publications.
By way of example of the last category, a Bloomberg Law news
story on March 2, 2017, about Banc’s 10-Q and 10-K filings states
“[a]dverse opinion on internal controls due to ‘inadequate tone at
the top’ isn’t surprising given former CEO Steven Sugarman’s
quick exit, inaccurate press release in Oct., historically-weak
corporate governance, excessive related-party transactions” and
that “Banc disclosed other related-party transactions from
Sugarman era that it’s taken steps to curtail.” (Maranz, Banc of
California’s ‘Clean’ Filings Remove Overhang: FBR, Bloomberg
Law (Mar. 2, 2017).)
In short, as the trial court aptly put it, “[r]eview of the
complaint and filings in this motion disclose the high-profile
nature of [plaintiff’s] departure from Banc and the reasons for his
27
departure.” Plaintiff “ ‘was a person . . . in the public eye’ ” and the
speech occurred “ ‘in the context of an ongoing controversy, dispute
or discussion’ ” (FilmOn, supra, 7 Cal.5th at p. 145), so we have no
doubt the reason for plaintiff’s departure was a matter of public
interest.
That brings us to “addressing the specific nature of
defendant’s speech and its relationship to the matters of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 152.) Here, the requisite
connection between the challenged statements and the issue of
public interest is direct, not tenuous or remote.
As we have described, the evidence of Mr. Turner’s
statements consists of the Mills, Simmons, Endresen and Dunn
declarations. These were to the effect that Mr. Turner discussed
with Mr. Mills and others how they were going to “crush” plaintiff
and make sure he was blamed for everything negative; told
Ms. Endresen plaintiff “had done some very bad things” while he
was at Banc, and made similar statements to Mr. Dunn; and made
statements to numerous analysts and investors at a conference
that plaintiff was unethical, had broken securities laws and
engaged in self-dealing.
This is not a case, as in FilmOn, where the defendant’s
statements were “too tenuously tethered to the issues of public
interest they implicate[d],” and “too remotely connected to the
public conversation about those issues, to merit protection under
the catchall provision.” (FilmOn, supra, 7 Cal.5th at p. 140.) On
the contrary, Mr. Turner’s statements were about the specific
issues being publicly discussed in the press and in lawsuits. In
FilmOn, the information in the defendant’s confidential reports to
its clients “never entered the public sphere, and the parties never
intended it to.” (Id. at p. 153.) The opposite is true here.
28
Mr. Turner was Banc’s interim president and CFO after
plaintiff resigned and his statements reflected Banc’s position in
the ongoing, very public controversy about Banc’s and plaintiff’s
conduct. Mr. Turner made those statements to an audience of
other bank employees and investors and analysts, all of whom
were likewise interested in the circumstances surrounding
plaintiff’s departure. The context—audience, speaker and
purpose—demonstrates Mr. Turner’s speech was “in connection
with” an issue of public interest, as required by FilmOn.
Plaintiff insists that Mr. Turner’s statements were “private
conversations meant to be kept private” and did not “contribute to
public conversation.” Plaintiff’s claim Mr. Turner’s statements
were “meant to be kept private” is contradicted by plaintiff’s own
evidence the statements were made in response to “[n]umerous”
analysts and investors who were inquiring about the
circumstances of plaintiff’s departure, and by his own allegations
that Mr. Turner’s statements were made in order to harm
plaintiff’s reputation in the banking industry.
Much of plaintiff’s brief is spent discussing Murray v. Tran
(2020) 55 Cal.App.5th 10. In Murray, unlike here, there was no
ongoing public conversation about the issue of public interest—
which was the plaintiff’s competence as a dentist. (Id. at p. 30.)
The court found, for example, that certain of the challenged
statements were not made to patients or anyone outside the
parties’ dental practice, and were made solely for private purposes,
such as to enhance the quality of dental care at the practice. (Id.
at p. 36.) Here, by contrast, there clearly was an existing public
discussion about the circumstances surrounding plaintiff’s
departure from Banc.
29
As FilmOn tells us, “[w]e are not concerned with the social
utility of the speech at issue,” but rather with whether a defendant
“participated in, or furthered, the discourse that makes an issue
one of public interest.” (FilmOn, supra, 7 Cal.5th at p. 151.) That
standard is met here.
iii. The probability of prevailing on the
reputational harm causes of action
Plaintiff did not satisfy his burden of showing a probability
of prevailing on his claim against Mr. Turner of intentional
interference with prospective economic advantage.6 The elements
of the tort are “ ‘ “(1) an economic relationship between the
plaintiff and some third party, with the probability of future
economic benefit to the plaintiff; (2) the defendant’s knowledge of
the relationship; (3) intentional acts on the part of the defendant
designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm to the plaintiff proximately
caused by the acts of the defendant.” [Citations.]’ ” (Korea Supply
Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (Korea
Supply).) “[T]he third element also requires a plaintiff to plead
intentional wrongful acts on the part of the defendant designed to
disrupt the relationship.” (Id. at p. 1154.)
Plaintiff contends his claim is not barred by the statute of
limitations (two years), even though Mr. Turner’s last statement
was made in May 2017, and the complaint was filed in October
2019. Plaintiff says the statute of limitations accrued when his
economic relationships were disrupted, not when Mr. Turner made
his statements. Plaintiff asserts his “relationships were disrupted
6 Plaintiff makes no argument in his opening brief challenging
the court’s ruling on his blacklisting claim.
30
as late as 2020 . . . ,” and he “submitted evidence that his economic
relationship with Broadway Federal was disrupted as a result of
Turner’s defamatory statements in 2020.”
Plaintiff’s assertion has at least one fatal flaw. All the
evidence he cites in his brief to support it is evidence to which
Mr. Turner’s objections were sustained.7 Plaintiff says this
evidence “is admissible,” making a two sentence argument: “The
statements of Turner are admissions. The other statements by
[third parties] are offered to show their respective states of mind.”
That is not a reasoned argument, and no legal authority is offered
to support it. Consequently, plaintiff has demonstrated no abuse
of discretion in the trial court’s evidentiary rulings, and there is no
admissible evidence showing Mr. Turner’s alleged interference
occurred within the statute of limitations.
Even without the bar of the statute of limitations, plaintiff
has not presented admissible evidence to satisfy the elements of a
claim of tortious interference with prospective economic advantage
against Mr. Turner. Plaintiff says he presented evidence “that
Turner reached out to specific entities with which Sugarman had
an economic relationship with the probability of future economic
benefit.” The trial court sustained objections to the pertinent parts
of all the evidence he cites.
In his reply brief, plaintiff argues at some length that the
trial court abused its discretion and “many of the statements are
admissible” as prior inconsistent statements, party admissions, or
7 We also harbor considerable doubt that a defendant’s
statements in 2017 could be “designed to disrupt” and actually
disrupt (Korea Supply, supra, 29 Cal.4th at p. 1153) a deal that
“died as of April 2020.”
31
to prove state of mind. We do not consider arguments made for the
first time in the reply brief.
e. Mr. Turner’s appeal: the merits
of the UCL claims
We agree with Mr. Turner that the trial court erred as a
matter of law in finding plaintiff’s UCL claims had minimal
merit.8
On his UCL claims, plaintiff’s complaint requested “that
Mr. Sugarman be awarded restitutionary damages in an amount to
be determined at trial, plus an award of reasonable legal fees and
expenses, and that the Court enter an order enjoining the Banc
Defendants from continuing to take actions to disrupt
Mr. Sugarman’s ability to compete in the financial and banking
markets.”
The only remedies available under the UCL are restitution
and injunctive relief. Restitution is the only monetary remedy
available. The principles are explained in Korea Supply, supra,
29 Cal.4th at page 1149.
“[A]n order for restitution is one ‘compelling a UCL
defendant to return money obtained through an unfair business
practice to those persons in interest from whom the property was
8 In his respondent’s brief on Mr. Turner’s appeal, plaintiff
contends Mr. Turner did not establish “that the Warrant Share
Claims arise from protected activity.” This refers to plaintiff’s
“UCL claims to the extent they are based on Banc Defendants’
breaches of or interference with certain agreements to which
Plaintiffs and Banc were parties and Banc’s failure to convert
certain Warrant Shares under those agreements.” This is another
baseless contention; none of the causes of action relating to breach
of these agreements was alleged against Mr. Turner.
32
taken, that is, to persons who had an ownership interest in the
property or those claiming through that person.’ [Citation.] The
object of restitution is to restore the status quo by returning to the
plaintiff funds in which he or she has an ownership interest.”
(Korea Supply, supra, 29 Cal.4th at p. 1149.)
Korea Supply held “[t]he remedy sought by plaintiff in this
case is not restitutionary because plaintiff does not have an
ownership interest in the money it seeks to recover from
defendants.” (Korea Supply, supra, 29 Cal.4th at p. 1149.) “Any
award that plaintiff would recover from defendants would not be
restitutionary as it would not replace any money or property that
defendants took directly from plaintiff.” (Ibid.) “Further, the relief
sought by plaintiff is not restitutionary under an alternative
theory because plaintiff has no vested interest in the money it
seeks to recover.” (Ibid.)
The same is true here. (See Korea Supply, supra, 29 Cal.4th
at pp. 1150–1151 [“The nonrestitutionary disgorgement remedy
sought by plaintiff closely resembles a claim for damages,
something that is not permitted under the UCL. As one court has
noted: ‘Compensation for a lost business opportunity is a measure
of damages and not restitution to the alleged victims.’ ”].)
Nor can plaintiff obtain injunctive relief against Mr. Turner.
The UCL “has not altered the nature of injunctive relief, which
requires a threat that the misconduct to be enjoined is likely to be
repeated in the future.” (Madrid v. Perot Systems Corp. (2005)
130 Cal.App.4th 440, 465; id. at p. 463 [“Injunctive relief is
appropriate only when there is a threat of continuing
misconduct.”].) The evidence that Mr. Turner has not worked at
Banc or in the banking industry since June 2017 is unrefuted.
Plaintiff has offered no evidence that Mr. Turner has said anything
33
to anyone to disparage plaintiff, or has done anything to “disrupt
[plaintiff’s] ability to compete,” after he (Mr. Turner) left Banc in
June 2017. “[I]n the absence of a threat that an unlawful act will
occur in the future” (id. at p. 464), injunctive relief is not
authorized under the UCL.
Accordingly, plaintiff has not established a probability of
prevailing on his UCL claims against Mr. Turner.
[End nonpublished portion]
DISPOSITION
The order granting defendant Brown’s anti-SLAPP motion to
strike allegations of fraudulent and negligent inducement to hold
securities, to the extent the allegations refer to defendant’s sign-off
on Banc’s 2016 fiscal year financial audit, is affirmed. The order
granting defendant Turner’s anti-SLAPP motion to strike
plaintiff’s second, third, seventh and eighth causes of action is
affirmed. The order denying defendant Turner’s anti-SLAPP
motion to strike plaintiff’s fifth and sixth causes of action is
reversed and the trial court is directed to grant the motion. Both
defendants shall recover costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. HARUTUNIAN, J.†
†
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
34