Reyes v. Escobar CA2/7 ( 2022 )

Filed 8/24/22 Reyes v. Escobar CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
EMILIO REYES, B313575
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC724250)
v.
ORDER MODIFYING
LORRAINE ANN ESCOBAR et al., OPINION
Defendants and Respondents. (NO CHANGE IN THE
APPELLATE JUDGMENT)
THE COURT:
Appellant Emilio Reyes’s request to modify the above-
entitled opinion filed on August 12, 2022 is granted. The opinion
is modified as follows:
On page 4, in the last sentence of the first paragraph, add
the words “great-great” after “Reyes’s” and before “grandmother”
so the sentence reads:
The attached statement (2013 BIA statement) identified
“Mary (Gryalba) Bega,” who “is named on the Original 1928
Roll of California Indians,” as Reyes’s great-great
grandmother.
There is no change in the appellate judgment.
SEGAL, Acting P.J. FEUER, J. WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
2
Filed 8/12/22 Reyes v. Escobar CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
EMILIO REYES, B313575
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC724250)
v.
LORRAINE ANN ESCOBAR et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Mel Red Recana, Judge. Affirmed in part;
reversed in part.
Emilio Reyes, in pro. per., for Plaintiff and Appellant.
Lorraine Ann Escobar, in pro. per., for Defendant and
Respondent Lorraine Ann Escobar.
Law Office of Michael F. Sisson and Michael F. Sisson for
Defendant and Respondent Alexandra R. McIntosh, APC.
_________________
Emilio Reyes appeals from an order granting the special
motions to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute)1
filed by defendants Lorraine Ann Escobar and Alexandra R.
McIntosh, APC. Reyes brought causes of action for negligence,
defamation, invasion of privacy, intentional infliction of
emotional distress, stalking, unfair business practices, and
professional negligence based on allegations he gave confidential
information concerning his Native American ancestry to
McIntosh in her capacity as an attorney to evaluate Reyes’s
standing to participate in a lawsuit for which McIntosh was
counsel. McIntosh then shared the information with Escobar,
and McIntosh and Escobar published a report based on the
information by distributing it to the Bureau of Indian Affairs
(BIA) and others, and posting it on public websites. The trial
court found McIntosh’s and Escobar’s conduct was protected
activity and Reyes failed to show a likelihood of prevailing on his
claims. On appeal, Reyes contends the trial court abused its
discretion in entertaining Escobar’s late-filed special motion to
strike, and Escobar’s and McIntosh’s conduct is not protected
activity.
We agree the trial court abused its discretion in considering
Escobar’s untimely special motion to strike and reverse as to
Escobar. We also reverse the court’s grant of McIntosh’s special
motion to strike as to Reyes’s cause of action for professional
1 “A ‘SLAPP’ is a ‘“strategic lawsuit against public
participation . . . .”’” (Bonni v. St. Joseph Health System (2021)
11 Cal.5th 995, 1007, fn. 1.) Further undesignated statutory
references are to the Code of Civil Procedure.
2
negligence but affirm as to the remaining causes of action against
McIntosh.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties2
Reyes alleges in his first amended complaint he is a
descendent of members of the Tongva faction of the Gabrielino
tribe. The Gabrielino tribe is not federally recognized. Reyes
alleges further the federal government misclassified him and his
family members as descendants of members of the Diegueno tribe
(also not federally recognized), and not the Gabrielino tribe.
According to Reyes, 11 non-federally recognized “factions” claim
they are descended from members of the Gabrielino tribe,
including the Gabrieleño3 Band of Mission Indians known as the
Kizh Nation.
In 2013 Reyes applied to the BIA for a certification of
Indian blood. On February 21, 2013 the BIA issued a letter to
Reyes acknowledging his application and noting “applicant[s]
must show their relationship to an enrolled member(s) of a
federally recognized Indian tribe to receive a certification of
degree of Indian blood.” (Boldface and italics omitted.) The letter
2 The factual background is taken from the declarations filed
in support of and in opposition to defendants’ special motions to
strike (§ 425.16, subd. (b)), as well as Reyes’s first amended
complaint.
3 The factions of the tribe and parties use the terms
“Gabrielino,” “Gabrieleno,” or “Gabrieleño” to refer to the tribe.
We use the spelling that each party references in his or her
pleadings.
3
explained Reyes was affiliated with a non-federally recognized
tribe, and thus, the BIA was “unable to issue [Reyes] a
certification of Indian blood.” Instead, the letter attached a
certification based on information in BIA records “verifying
[Reyes is] of California Indian descent” and of ancestry related to
a “non-federally recognized tribe.” (Boldface and italics omitted.)
The attached statement (2013 BIA statement) identified “Mary
(Gryalba) Bega,” who “is named on the Original 1928 Roll of
California Indians,” as Reyes’s grandmother.
McIntosh is an attorney licensed to practice in California,
who represents “nearly 200 . . . enrolled members of the San
Pasqual Band of Mission Indians” seeking to gain federal
recognition of their membership in the tribe (San Pasqual
lawsuit). In August 2014, before filing the San Pasqual lawsuit,
McIntosh sent Reyes a message on a social media website,
introducing herself as an attorney seeking Native American
clients and offering affordable representation and pro bono
services. In November 2014, upon McIntosh’s invitation, Reyes
visited McIntosh at her home to discuss her intent to file the San
Pasqual lawsuit.
According to Reyes, in January 2015 McIntosh requested
from Reyes a copy of the 2013 BIA statement, explaining “it may
give you a basis to join our lawsuit.” McIntosh “made [Reyes]
believe[] [he] would be a plaintiff” in the San Pasqual lawsuit.
On January 15, 2015 Reyes provided to McIntosh copies of his
birth certificate and the 2013 BIA statement. McIntosh then
agreed to provide Reyes with legal services.
McIntosh failed to keep Reyes’s documents confidential,
instead distributing his birth certificate and the 2013 BIA
statement without Reyes’s authorization to certified genealogist
4
Escobar and Kizh Nation Resource Management (KNRM).4 On
September 15, 2017 Escobar contacted Reyes’s colleague Rick
Cuevas by email with information on Reyes’s “tribal identity,”
including the documents Reyes shared with McIntosh. Escobar
asked Cuevas whether he was “interested in looking at a couple
documents about Emilio Reyes. . . . I am wondering if you might
want to reconsider [allowing Reyes to post on your website5] once
you see what I have found. I know Emilio is not a Gabrieleno
Indian descendant. I don’t think he is [of] California Indian
descent at all.” Cuevas sent Escobar’s message to Reyes.
On September 17, 2017 Reyes sent an email to Escobar
“directing her to destroy all [of Reyes’s] personal information and
documents” and requesting Escobar inform McIntosh and
Andrew Salas of KNRM to do the same. Later the same day
McIntosh sent an email to Reyes accusing him of “‘telling lies’
about her.” McIntosh “threaten[ed]” Reyes, stating, “[I]f you[’re]
challenging me to get to the bottom of your lineage[,] I can, and I
will.” McIntosh “intended to influence Escobar to issue a report
on [Reyes]” and his genealogy.
Reyes later learned Escobar authored a report dated
October 13, 2017 and titled “The Case of Maria (nee: Grijalva)
Bega, Guillermo Grijalva, and Aurelia . . . (nee: Grijalva) Orosco”
(the report). The report relied on the 2013 BIA statement that
4 Although Reyes alleged in his complaint and first amended
complaint KNRM and the Kizh Nation are the same entity, in his
opening brief he acknowledges KNRM is “a for-profit corporation”
and “not a tribe.”
5 Cuevas is “the owner of Original Pechanga Blog on Tribal
Disenrollment, a leading Native American website” published
since 2007.
5
Reyes had shared with McIntosh. Escobar published the report
on the KNRM website. She also attached the report to a letter
she sent on October 13 to Javin Moore, superintendent of the
BIA, with copies to additional officials at the BIA and the
Department of the Interior, members of the California Native
American Heritage Commission (NAHC),6 and Salas (BIA letter).
Escobar stated in the BIA letter, “I am writing to you to submit a
correction to the data your offices collected from the 1928
California Indian Judgment Act and subsequent enrollments.
Although you may believe matters regarding descendants from
unacknowledged tribes is not your priority, I urge you to read on
and reconsider your position because you have the power to right
a wrong against authentic California Indians.”
Escobar also shared her doubts about the legitimacy of
Reyes’s claims of Indian ancestry with “prominent Native
American journalists.” Later, Escobar published the report on
the website Ancestry.com.
6 According to its website, the NAHC was “created in statute
in 1976 (Chapter 1332, Statutes of 1976), [and] is a nine-member
body whose members are appointed by the Governor. The NAHC
identifies, catalogs, and protects Native American cultural
resources—ancient places of special religious or social
significance to Native Americans and known ancient graves and
cemeteries of Native Americans on private and public lands in
California. The NAHC is also charged with ensuring California
Native American tribes’ accessibility to ancient Native American
cultural resources on public lands, overseeing the treatment and
disposition of inadvertently discovered Native American human
remains and burial items, and administering the California
Native American Graves Protection and Repatriation Act
(CalNAGPRA), among many other powers and duties.”
( [as of August 12, 2022].)
6
The report posited that many Mexicans had illegally
enrolled as Indians in 1928 under the California Indian
Jurisdictional Act, and the BIA used the data collected in 1928 to
issue Certificates of Degree of Indian Blood to individuals who
did not have Indian ancestry. The report sought to correct the
enrollment records to stop the “identity theft” and “fraud” that
resulted from the enrollment errors and harmed California
Native American Indians by, for example, allowing the
individuals to claim ancestral bones of authentic descendants of
California Indian tribes. (Boldface and italics omitted.) The
report asserted, “The California Native American Heritage
Commission . . . enables identity theft by relying on the authority
of the [BIA] to determine eligibility for participation in
repatriation.” The report focused on the BIA’s decision in 1933 to
place three non-Indian siblings and their children on the 1933
California Indian Judgment Roll, including Reyes’s great-great
grandmother Mary Bega. The report accused the BIA of
“continu[ing] to issue verification letters to the descendants” of
the three siblings. As to Reyes, the report stated, “In 2013, the
BIA declared Emilio Reyes was Diegueno Indian (with no blood
quantum mentioned) and Mary (Gryalba) Bega was his great-
great grandmother,” citing the 2013 BIA statement. (Italics
omitted.)
B. Reyes’s Complaint
On October 4, 2018 Reyes filed a complaint against
Escobar, KNRM,7 and 20 Doe defendants, alleging causes of
action for negligence, defamation, invasion of privacy, and unfair
7 KNRM is not a party to this appeal.
7
business practices. The complaint alleged Escobar and KNRM
published a report on the Kizh Nation website describing Reyes’s
“family history without consent.” Further, the report contained
“false and misleading statements about [Reyes’s] ancestry,”
including that in 1928 Reyes’s ancestors fraudulently posed as
and were erroneously enrolled in a census of California Native
Americans. Reyes alleged publication of the report injured his
reputation and caused him shame and embarrassment. Further,
Escobar and KNRM acted with malice, motivated by the “desire
to ‘get’ enrolled Native Americans with Mexican heritage[].”
C. The First 17 Months of Litigation
On December 4, 2018 Escobar and KNRM, both
represented by McIntosh, filed an answer generally denying the
allegations in the complaint. On December 10 Reyes filed a
motion to disqualify McIntosh, arguing McIntosh had a conflict of
interest due to prior representation of Reyes “involving the very
issues involved in this litigation.” On January 17, 2019, in
response to Escobar’s requests for admission, form and special
interrogatories, and requests for production of documents seeking
communications between Reyes and McIntosh, Reyes filed a
motion for a protective order to prevent disclosure of documents
Reyes asserted were protected by the attorney-client privilege.
Escobar filed oppositions to both motions.
On February 15, 2019 the trial court denied Reyes’s motion
for a protective order. Reyes appealed, and on September 12,
2019 we dismissed Reyes’s appeal as having been taken from a
nonappealable order. (Reyes v. Escobar et al. (Sept. 12, 2019,
B295897).)
8
On January 28, 2020 KNRM filed a substitution of
attorney, substituting Neville L. Johnson for McIntosh. On
March 26 Reyes again moved to disqualify McIntosh from
representing Escobar. On April 10 Escobar filed a substitution of
attorney, substituting herself (as a self-represented litigant) for
McIntosh. Above her signature on the filing, Escobar wrote, “I do
not agree that Alexandra McIntosh was ever authorized counsel.”
(Capitalization omitted.) On July 7, 2020 the trial court found
Reyes’s motion to disqualify McIntosh was moot in light of the
attorney substitutions.
D. The First Amended Complaint
On March 2, 2020 Reyes filed a request for leave to file a
first amended complaint. KNRM and Escobar opposed the
amendment. On July 31, 2020 the court granted Reyes leave to
amend. On the same day Reyes filed a verified first amended
complaint, naming McIntosh as a defendant8 and adding causes
of action for the intentional infliction of emotional distress and
stalking against all defendants and professional negligence
against McIntosh. Further, Reyes amended his cause of action
for invasion of privacy to allege Reyes possesses “a legally
protected privacy interest in his Native heritage and lineage.”
Reyes also added an allegation that “Defendants have been
acting . . . unlawful[ly] . . . as the sole self-appointed agents and
final authorities in determining who is and who is not a Native
American, which is in direct disregard to the authority of the
[BIA] to determine the identity of a Native American.”
8 The first amended complaint also named as a defendant
the Board for Certification of Genealogists, which is not a party
to this appeal.
9
Reyes’s cause of action for intentional infliction of
emotional distress alleges defendants’ defamatory statements
were “continuous, intentional and outrageous” and proximately
caused injury to Reyes. Reyes alleges as to his stalking cause of
action that the defendants “repeatedly followed and [engaged in]
willfully harassing methods by harassing, intimidating,
tormenting, embarrassing, [and] bullying against [Reyes]
and . . . third-party contacts,” which caused Reyes to suffer from
post-traumatic stress disorder and extreme anxiety disorders.
As to the cause of action for professional negligence, Reyes
alleges McIntosh breached her duty of confidentiality to Reyes
based on the attorney-client relationship and violated State Bar
Rules of Professional Conduct, former rule 3-100 by disclosing
confidential information without Reyes’s authorization. Further,
McIntosh failed to provide competent representation to Reyes
and “effectively abandoned” him.
E. McIntosh’s Special Motion To Strike
On September 27, 2020 McIntosh filed a special motion to
strike the first amended complaint. McIntosh argued her
communications about Reyes were written or oral statements in a
public forum in connection with an issue of public interest—“[t]he
issue of admission into a Native American tribe.” Further, Reyes
could not show a probability of prevailing on the merits because
the statute of limitations, claim preclusion (described as res
judicata),9 and judicial estoppel barred Reyes’s claims; McIntosh’s
statements were opinions and constitutionally protected;
9 McIntosh asserted claim preclusion barred Reyes’s claims
based on Reyes’s prior unsuccessful petition for a civil
harassment restraining order against McIntosh.
10
McIntosh was never Reyes’s attorney; and Reyes’s cause of action
for unfair business practices failed to state a claim.
In his opposition, Reyes argued McIntosh failed to make a
prima facie showing her conduct constituted protected activity,
and there was a probability of Reyes prevailing on the merits.
Reyes submitted a declaration and request for judicial notice in
support of his opposition. McIntosh filed a reply and reply
declaration, in which she denied ever acting as Reyes’s attorney.
McIntosh submitted with her reply internet posts by or
concerning Reyes, which she asserted showed tribal enrollment
and disenrollment are matters of public interest and Reyes is a
limited public figure for his work on those issues.
At a February 10, 2021 hearing on McIntosh’s special
motion to strike, the trial court continued the hearing and
requested further briefing. McIntosh filed a supplemental brief,
and Reyes filed a supplemental opposition with declarations from
Reyes, Cuevas, and others. McIntosh then filed a supplemental
reply and reply declaration.
F. Escobar’s Default, Motion To Set Aside Default, and Special
Motion To Strike
Escobar failed to respond to the first amended complaint,
which Reyes served by mail on August 25, 2020. On October 1,
2020 Reyes filed a request for entry of default against Escobar,
which the clerk entered the same day.
On October 6, 2020 Escobar, despite the default, filed a
joinder in McIntosh’s special motion to strike. On November 3
Escobar filed a motion to set aside the default and request for
court judgment, arguing she failed to file a responsive pleading
because of her mother’s death in July 2020. On February 1, 2021
11
Escobar filed an amended motion to set aside or void entry of
default with a proposed answer and supporting declaration and
exhibits. Escobar averred she had a health condition that
impacted her “ability to produce timely court filings.” On
February 25 Escobar filed an amended declaration in support of
her motion.
On March 5, 2021 the trial court granted Escobar’s motion
to set aside the default. On March 8 Escobar filed a verified
answer to the first amended complaint, and on March 10 she filed
a special motion to strike the first amended complaint. Escobar
argued the claims in the first amended complaint arose from
protected activity and Reyes could not show a probability of
prevailing on his claims because the report was not defamatory;
the report was a true and fair report; Reyes was a limited-
purpose public figure and could not show Escobar acted with
malice; and Escobar’s communications were privileged under
Civil Code section 47, subdivision (b).
Reyes opposed Escobar’s motion, arguing, inter alia, the
motion was untimely because it was filed more than two years
after Escobar was served with the complaint.
G. The Trial Court’s Ruling
After a hearing on June 2, 2021, the trial court granted
McIntosh’s and Escobar’s special motions to strike the first
amended complaint. As to McIntosh’s motion, the court in its
written ruling found the publication of the report to
governmental agencies was a written statement before an official
proceeding authorized by law, and thus constituted protected
activity under section 425.16, subdivision (e)(1). The court
reasoned, “The language of the [BIA] letter shows that
12
[McIntosh] was attempting to prompt administrative action to
change a system of records, which allegedly relies on flawed or
incorrect data.” The court found publication of the report on the
Kizh Nation website was conduct in furtherance of the exercise of
the constitutional right of petition or free speech in connection
with an issue of public interest, and thus was protected activity
under section 425.16, subdivision (e)(4).
The trial court found Reyes had not shown a probability of
prevailing on the merits of his claims. As to Reyes’s claim
against McIntosh for professional negligence, the court reasoned,
“[Reyes] does not establish any legal services upon which to base
this cause of action. [Reyes] attests that [McIntosh] wanted him
to join a San Pasqual Lawsuit and asked for a copy of Reyes’s
[2013 BIA statement] for this purpose. [Citation.] But, [Reyes]
fails to establish that he ever agreed to join the San Pasqual
Lawsuit or that [Reyes] not joining the lawsuit caused him any
damages.” As to Reyes’s claim for negligence, the court found
Reyes had failed to establish McIntosh owed any duty of care to
Reyes with respect to Reyes’s private information. The court
found with respect to Reyes’s claim for defamation that Reyes
was a limited public figure and failed to established McIntosh
acted with actual malice in publishing the report. The court
found the statute of limitations barred Reyes’s claim for invasion
of privacy. As to Reyes’s claim for unfair business practices, the
court found Reyes adduced no evidence McIntosh unlawfully
obtained money or property from him. The court found Reyes’s
claim for intentional infliction of emotional distress was
duplicative of his claim for defamation and thus failed. The court
concluded Reyes failed to address his stalking cause of action in
13
his opposition papers, and therefore did not carry his burden to
show a probability of success on the claim.
The court considered Escobar’s special motion to strike,
rejecting Reyes’s argument the motion was untimely. The court
reasoned, “[T]he Anti-SLAPP deadline is entirely discretionary,
as expressly stated in the statutes.” The court held its ruling on
McIntosh’s motion applied to Escobar’s motion at both steps of
the anti-SLAPP analysis.
Reyes timely appealed.
DISCUSSION
A. The Trial Court Abused Its Discretion in Ruling on
Escobar’s Late-filed Special Motion To Strike
1. Governing law and standard of review
“Section 425.16 ‘provides a procedure for weeding out, at an
early stage, meritless claims arising from protected activity.’”
(Newport Harbor Ventures, LLC v. Morris Cerullo World
Evangelism (2018) 4 Cal.5th 637, 642 (Newport Harbor); accord,
Zhang v. Jenevein (2019) 31 Cal.App.5th 585, 592.) “‘Because
these meritless lawsuits seek to deplete “the defendant’s energy”
and drain “his or her resources” [citation], the Legislature sought
“‘to prevent SLAPPs by ending them early and without great cost
to the SLAPP target.’”’” (Newport Harbor, at p. 642; Zhang, at
p. 592 [“section 425.16 seeks to limit the costs of defending
against [a SLAPP]”].) “‘An anti-SLAPP motion is not a vehicle for
a defendant to obtain a dismissal of claims in the middle of
litigation; it is a procedural device to prevent costly,
unmeritorious litigation at the initiation of the lawsuit.’”
(Newport Harbor, at p. 645; accord, San Diegans for Open
14
Government v. Har Construction, Inc. (2015) 240 Cal.App.4th
611, 625-626 (San Diegans).)
Section 425.16, subdivision (f), provides in relevant part,
“The special motion may be filed within 60 days of the service of
the complaint or, in the court’s discretion, at any later time upon
terms it deems proper.” Subdivision (f) “permit[s] an anti-SLAPP
motion against an amended complaint if it could not have been
brought earlier, but . . . prohibit[s] belated motions that could
have been brought earlier (subject to the trial court’s discretion to
permit a late motion).” (Newport Harbor, supra, 4 Cal.5th at
p. 645.) Upon the filing of a special motion to strike, all discovery
proceedings are stayed, and an order granting or denying the
motion is appealable; an appeal, in turn, automatically stays
further trial court proceedings on the merits. (Ibid.) “In this
unusual statutory context, in which a party has the right to an
interlocutory appeal of a denial of anti-SLAPP motion, a trial
court must be wary about freely granting a party the right to file
an anti-SLAPP motion past the 60-day deadline.” (Platypus
Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787
(Platypus); accord, San Diegans, supra, 240 Cal.App.4th at
p. 624.)
“A trial court’s ruling on an application to file a late anti-
SLAPP motion is reviewed for an abuse of discretion.” (Platypus,
supra, 166 Cal.App.4th at p. 782; accord, Kieu Hoang v. Phong
Minh Tran (2021) 60 Cal.App.5th 513, 526.) “While a trial court
enjoys considerable discretion regarding whether to allow the late
filing of an anti-SLAPP motion,” a court in exercising that
discretion must consider the purpose of the anti-SLAPP statute,
the length of the delay, the reasons offered by the moving party
for the delay, and the potential prejudice to the plaintiff.
15
(Platypus, at pp. 784, 787 [trial court abused its discretion in
ruling on special motion to strike filed nearly two years after the
filing of the complaint, where at the time the motion was filed
“the parties had already completed a substantial amount of
discovery, and the trial was scheduled to commence in less than
three months”]; see Newport Harbor, supra, 4 Cal.5th at p. 645
[affirming trial court’s denial of special motion to strike filed after
plaintiff filed a third-amended complaint where “much litigation,
including discovery, had already been conducted for two years
before the anti-SLAPP motion brought it to a halt,” and it was
“far too late for the anti-SLAPP statute to fulfill its purpose of
resolving the case promptly and inexpensively”]; San Diegans,
supra, 240 Cal.App.4th at p. 624 [trial court abused its discretion
in considering special motion to strike filed 16 months after first
amended complaint was filed where the parties litigated various
motions and served and responded to written discovery requests];
cf. Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285-286 [trial
court did not abuse its discretion in denying as untimely anti-
SLAPP motion filed 278 days after service of complaint].)
2. The trial court abused its discretion
Reyes argues the trial court abused its discretion in ruling
on Escobar’s special motion to strike given the length of the
delay, completion of substantial discovery, and litigation of
multiple motions. Escobar offers no explanation in response for
why she failed to file her motion earlier, simply relying on the
trial court’s reasoning that “‘the Anti-SLAPP deadline is entirely
discretionary, as expressly stated in the statute.’” (Boldface and
italics omitted.) Reyes’s argument is persuasive.
16
Escobar’s special motion to strike was not filed within
60 days of service of the complaint or the first amended
complaint. Reyes served the complaint on Escobar by substituted
service on November 30, 2018.10 And Reyes served the first
amended complaint on Escobar by mail on August 25, 2020.
Escobar filed the special motion to strike the first amended
complaint on March 10, 2021. Thus, adding 10 days for
substituted service of the complaint (§ 415.20, subd. (a)) and five
days for service by mail of the first amended complaint (§ 1013,
subd. (a)), Escobar filed her motion 821 days (more than
27 months) after service of the complaint and 192 days after
service of the first amended complaint.
Escobar acknowledges the case was litigated for almost
“three years” with “hundreds of filings” and “nearly 100 related
hearings.” Indeed, the parties had engaged in considerable
discovery and motion practice, with both Escobar and Reyes
propounding discovery and filing multiple motions to compel
discovery responses and further discovery responses. Further,
the parties litigated Reyes’s motions to disqualify McIntosh and
for a protective order regarding attorney-client privileged
documents (in response to Escobar’s propounded discovery), as
well as Reyes’s request for leave to file an amended complaint.
Escobar presented no reason why she could not have moved
to strike the causes of action as alleged in the original complaint.
The four causes of action against Escobar alleged in the
complaint (negligence, defamation, invasion of privacy, and
unfair business practices) were all based on allegations Escobar
10 On our own motion we augment the record to include the
November 20, 2018 proof of service of the complaint on Escobar.
(Cal. Rules of Court, rule 8.155(a)(1)(A).)
17
published the report based on Reyes’s private information. And
as Escobar acknowledged in her respondent’s brief, in January
2019 (within the 60 days) she asked her then-attorney McIntosh
to file a special motion to strike the complaint, but McIntosh
“opted to pursue her own strategies.” Yet Escobar moved to
strike the four causes of action in her special motion to strike the
first amended complaint without providing any justification for
her 821-day delay.
As to the two additional causes of action alleged against
Escobar in the first amended complaint, Reyes’s claim for
intentional infliction of emotional distress relies solely on the
factual allegations underlying her defamation cause of action in
the original complaint, and Reyes’s claim for stalking does not
allege any protected activity, only generally alleging Escobar and
the other defendants engaged in “harassing methods.” Thus,
Escobar has failed to show her “anti-SLAPP motion against [the]
amended complaint . . . could not have been brought earlier”
against the complaint. (Newport Harbor, supra, 4 Cal.5th at
p. 645.) Moreover, Escobar provides no explanation for the 192-
day delay in bringing her motion after service of the first
amended complaint.11
The trial court’s apparent belief it possessed unfettered
discretion to rule on any late-filed special motion to strike
regardless of the circumstances is inconsistent with the
requirement the court consider the length of the delay, the
reasons offered for the delay, and potential prejudice to the
11 We recognize Escobar was in default for a substantial
portion of this period after the filing of the first amended
complaint, but Escobar does not argue that her default extended
the deadline for filing a special motion to strike.
18
plaintiff. (San Diegans, supra, 240 Cal.App.4th at p. 624;
Platypus, supra, 166 Cal.App.4th at p. 782.) Under the
circumstances here, the court abused its discretion in ruling on
Escobar’s late-filed special motion to strike the first amended
complaint.
B. The Trial Court Erred in Granting McIntosh’s Special
Motion To Strike the Professional Negligence and
Negligence Causes of Action but Properly Dismissed Reyes’s
Other Causes of Action
1. Governing law and standard of review
A cause of action arising from an act in furtherance of a
defendant’s constitutional right of petition or free speech in
connection with a public issue is subject to a special motion to
strike unless the plaintiff demonstrates a probability of
prevailing on the claim. (§ 425.16, subd. (b)(1); see Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995, 1009; Baral v.
Schnitt (2016) 1 Cal.5th 376, 381 (Baral).) An “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’” includes, in relevant part, “any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law” (§ 425.16, subd. (e)(1)) and any “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” (id., subd. (e)(4)).
“Litigation of an anti-SLAPP motion involves a two-step
process. First, ‘the moving defendant bears the burden of
establishing that the challenged allegations or claims “aris[e]
19
from” protected activity in which the defendant has engaged.’
[Citation.] Second, for each claim that does arise from protected
activity, the plaintiff must show the claim has ‘at least “minimal
merit.”’ [Citation.] If the plaintiff cannot make this showing, the
court will strike the claim.” (Bonni v. St. Joseph Health System,
supra, 11 Cal.5th at p. 1009; accord, Baral, supra, 1 Cal.5th at
p. 384.)
As part of the second step, we apply a “‘“summary-
judgment-like procedure.” [Citation.] The court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff's evidence
as true, and evaluates the defendant’s showing only to determine
if it defeats the plaintiff's claim as a matter of law. [Citation.]
“[C]laims with the requisite minimal merit may proceed.”’”
(Sweetwater Union High School Dist. v. Gilbane Building
Co. (2019) 6 Cal.5th 931, 940; accord, Baral, supra, 1 Cal.5th at
pp. 384-385.)
We review de novo the grant or denial of a special motion to
strike. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781,
788; Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067.)
2. The trial court erred in finding Reyes’s causes of
action for professional negligence and negligence
arose from McIntosh’s protected activity
Reyes contends his claims for professional negligence and
negligence did not arise from McIntosh’s protected activity
because the claims were based on McIntosh’s breach of her duty
20
to Reyes as his current or former attorney by disclosing his
confidential information without informed consent, in violation of
rule 1.6 of the State Bar Rules of Professional Conduct.12
McIntosh argues Reyes’s claim is not based on attorney
misconduct, but rather, arises from her “lobbying efforts directed
towards administrative agencies.” Reyes is correct.
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park v. Board of
Trustees of California State University, supra, 2 Cal.5th at
p. 1062; accord, City of Cotati v. Cashman (2002) 29 Cal.4th 69,
78.) “‘[T]he mere fact that an action was filed after protected
activity took place does not mean the action arose from that
activity for the purposes of the anti-SLAPP statute.’” (Park, at
p. 1063; accord Cotati, at pp. 76-77.) “Instead, the focus is on
determining what ‘the defendant’s activity [is] that gives rise to
his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’ [Citation.] . . . [I]n
ruling on an anti-SLAPP motion, courts should consider the
elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis
for liability.” (Park, at p. 1063, italics omitted; accord, Bonni,
supra, 11 Cal.5th at p. 1009 [“The defendant’s burden is to
12 Rules of Professional Conduct, rule 1.6(a) (formerly rule 3-
100) provides in relevant part, “A lawyer shall not reveal
information protected from disclosure by Business and
Professions Code section 6068, subdivision (e)(1) unless the client
gives informed consent . . . .” (Fn. omitted.) Business and
Professions Code section 6068, subdivision (e)(1), in turn,
provides that it is the duty of an attorney to “maintain inviolate
the confidence, and at every peril to himself or herself to preserve
the secrets, of his or her client.”
21
identify what acts each challenged claim rests on and to show
how those acts are protected under a statutorily defined category
of protected activity.”].)
“The elements of a claim for professional negligence are
‘“(1) the duty of the professional to use such skill, prudence, and
diligence as other members of his profession commonly possess
and exercise; (2) a breach of that duty; (3) a proximate causal
connection between the negligent conduct and the resulting
injury; and (4) actual loss or damage resulting from
the professional’s negligence.”’” (Paul v. Patton (2015)
235 Cal.App.4th 1088, 1095; accord, Powell v. Kleinman
(2007) 151 Cal.App.4th 112, 122.) In an action for professional
negligence, the Rules of Professional Conduct inform the scope of
an attorney’s duty. (Prakashpalan v. Engstrom, Lipscomb &
Lack (2014) 223 Cal.App.4th 1105, 1128; accord, Connelly v.
Bornstein (2019) 33 Cal.App.5th 783, 794-795 [an attorney’s
violation of the Rules of Professional Conduct “implicates a
lawyer’s core professional duty to employ reasonable skill,
prudence, and diligence in litigation”]; cf. Slovensky v.
Friedman (2006) 142 Cal.App.4th 1518, 1534-1535 [“‘The scope of
an attorney’s [fiduciary] duty may be determined as a matter of
law based on the Rules of Professional Conduct’”].)
Although generally an attorney’s litigation-related
activities, including the filing and prosecution of a civil action on
behalf of a client, are considered acts in furtherance of a person’s
right of petition, “numerous cases have held that ‘actions based
on an attorney’s breach of professional and ethical duties owed to
a client’ are generally not subject to section 425.16 ‘even though
protected litigation activity features prominently in the factual
background.’” (Sprengel v. Zbylut (2015) 241 Cal.App.4th 140,
22
151; accord, Castleman v. Sagaser (2013) 216 Cal.App.4th 481,
488, 491 [section 425.16 does not apply to claims an attorney
committed “ethical violations, including breaches of the duties of
loyalty and confidentiality owed to [the plaintiffs] as former
clients under the State Bar Rules of Professional Conduct”]; see
Yeager v. Holt (2018) 23 Cal.App.5th 450, 457 [a typical attorney
malpractice suit is not subject to the anti-SLAPP procedures];
PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009)
179 Cal.App.4th 1204, 1228 [“it is unreasonable to interpret
[section 425.16] to include a client’s causes of action against the
client’s own attorney arising from litigation-related activities
undertaken for that client”].)
McIntosh does not dispute Reyes’s claim for professional
negligence asserts liability based on McIntosh’s breach of her
professional duties arising from an express or implied attorney-
client relationship.13 The first amended complaint alleges
“without the knowledge or consent of [Reyes], McIntosh
distributed all of [Reyes’s] personal information to [d]efendants
Escobar and KNRM” in violation of Rules of Professional
Conduct, rule 1.6, which conduct fell “below the standard of care
for attorneys in the practice of law in the state of California.”
Thus, the activity that forms the basis for Reyes’s claim for
professional negligence is McIntosh’s failure to maintain the
13 In the trial court, McIntosh argued she did not have an
attorney-client relationship with Reyes. McIntosh has
abandoned this argument on appeal. Regardless, “[w]hether
[Reyes] actually shared an attorney-client relationship with
[McIntosh] relates to the merits of [Reyes’s] claims and is
therefore not relevant to our first prong analysis.” (See Sprengel
v. Zbylut, supra, 241 Cal.App.4th at p. 157.)
23
confidentiality of private information Reyes provided her in the
course of their attorney-client relationship. Although McIntosh
and Escobar may have ultimately used that private information
in “lobbying efforts directed towards administrative agencies,”
the breach of a professional duty alleged by Reyes occurred
irrespective of the later publication of Reyes’s confidential
information in the report and BIA letter. (See Benasra v.
Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179,
1189 [“Evidence that confidential information was actually used
against the former client in litigation would help support
damages, but is not the basis for the claim.”].) The trial court
therefore erred in finding Reyes’s claim for professional
negligence arose from McIntosh’s protected activity.
The parties make the same arguments as to Reyes’s claim
against McIntosh for negligence. The elements of a negligence
claim are ““a legal duty of care, breach of that duty, and
proximate cause resulting in injury.’” (Sabetian v. Exxon Mobil
Corporation (2020) 57 Cal.App.5th 1054, 1070; accord, Day v.
Lupo Vine Street L.P. (2018) 22 Cal.App.5th 62, 69.) “Recovery in
a negligence action depends as a threshold matter on whether the
defendant had ‘“a duty to use due care toward an interest of [the
plaintiff’s] that enjoys legal protection against unintentional
invasion.”’” (Southern California Gas Leak Cases (2019)
7 Cal.5th 391, 397; accord, Sabetian, at p. 1070.)
The first amended complaint’s cause of action for
negligence alleges McIntosh breached her duty of care to Reyes
“[b]efore the Defendants published and distributed the report” by
failing to return or destroy Reyes’s records at his request and by
instead distributing Reyes’s records. Thus, the same conduct
underlying the breach alleged in Reyes’s claim for professional
24
negligence forms the basis for his claim for negligence:
McIntosh’s disclosure of private information Reyes provided to
her in confidence as his attorney. Accordingly, the trial court also
erred in finding Reyes’s claim for negligence arose from
McIntosh’s protected activity.
3. Reyes’s remaining causes of action arose from
protected activity
Unlike Reyes’s claims for negligence and professional
negligence, McIntosh’s alleged violation of her professional duties
does not form the basis for Reyes’s claims in the first amended
complaint for defamation, invasion of privacy, and intentional
infliction of emotional distress.14 Rather, those claims turn on
the alleged publication of the report and BIA letter with Reyes’s
private information, quintessential protected activity.
The elements of defamation are “‘“(a) a publication that is
(b) false, (c) defamatory, and (d) unprivileged, and that (e) has a
natural tendency to injure or that causes special damage.”’”
(Taus v. Loftus (2007) 40 Cal.4th 683, 720; accord, Murray v.
Tran (2020) 55 Cal.App.5th 10, 37.) Reyes’s cause of action for
defamation alleges McIntosh and the other defendants published
a false communication (the report) on the Internet accusing
14 Reyes has not presented any argument in his opening or
reply brief explaining why the trial court erred in its ruling on his
claims for unfair business practices and stalking, thereby
forfeiting any argument as to those claims. (Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 [“‘“‘Issues not
raised in an appellant’s brief are [forfeited] or abandoned.’”’”];
Golden Door Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 555 [same].)
25
Reyes of “fraud[ulently] posing as [an] Indian[],” committing
“present day identity theft,” and “present[ing] spurious
information” to governmental agencies. The first amended
complaint alleges further that McIntosh “spread[] false
information to journalists,” “repost[ed] privacy-protected
information online,” and wrote “correspondence to California
tribes, federal agencies and organizations” including the BIA,
Department of the Interior, and the NAHC (the BIA letter).
The elements of a cause of action for intentional infliction
of emotional distress are “(1) extreme and outrageous conduct by
the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff
has suffered severe or extreme emotional distress; and (3) the
defendant’s outrageous conduct was the actual and proximate
causation of the emotional distress.” (Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240, 1265; accord, Chang v.
Lederman (2009) 172 Cal.App.4th 67, 86.) The first amended
complaint alleges McIntosh’s defamatory statements caused
Reyes severe emotional distress, including extreme anxiety and
post-traumatic stress disorder.
The elements of a cause of action for invasion of privacy by
public disclosure of private facts are “(1) public disclosure (2) of a
private fact (3) that would be offensive and objectionable to the
reasonable person and (4) is not of legitimate public concern.”
(Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1256;
accord, Taus v. Loftus, supra, 40 Cal.4th at p. 717.) The first
amended complaint alleges McIntosh disseminated Reyes’s
private information in the report and BIA letter “to the general
public through the world wide web without [Reyes’s] knowledge
or consent.”
26
As these allegations illustrate, the three causes of action do
not seek to establish McIntosh’s liability for violating her
professional duty to maintain the confidentiality of Reyes’s
private information. Rather, the causes of action turn on
publication of the report containing Reyes’s private information
by posting it on the Internet and distributing it with the BIA
letter to governmental agencies.
McIntosh argues publication of the report and BIA letter to
officials of the BIA and Department of the Interior and to
members of the NAHC is protected activity under section 425.16,
subdivision (e)(1), because the communications were written
statements 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.
“Communications to an administrative agency
designed to prompt action by that agency come within the
definition of an official proceeding, even though they ‘may precede
the initiation of formal proceedings.’” (Premier Medical
Management Systems, Inc. v. California Ins. Guarantee
Assn. (2006) 136 Cal.App.4th 464, 475; accord, ComputerXpress,
Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009.) The BIA letter
and attached report were designed to prompt action by the BIA to
“correct[] . . . the data [BIA] offices collected from the 1928
California Indian Judgment Act and subsequent enrollments”
and to “reconsider [BIA’s] position because [BIA has] the power to
right a wrong against authentic California Indians.” Further, the
BIA letter sought to highlight a problematic policy of the NAHC
of relying on erroneous BIA records. McIntosh therefore carried
her burden to show Reyes’s claims based on the publication of the
report and BIA letter arose from her protected activity.
27
As to Reyes’s claims based on allegations McIntosh and the
other defendants published defamatory statements on the
Internet (by posting the report), McIntosh argues her conduct is
protected under section 425.16, subdivision (e)(3), as written
statements made in a public forum in connection with an issue of
public interest. As McIntosh rightly notes, “Web sites accessible
to the public . . . are ‘public forums’ for purposes of the anti-
SLAPP statute.” (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41,
fn.4; accord, Hupp v. Freedom Communications, Inc. (2013)
221 Cal.App.4th 398, 404.) Reyes does not contend the websites
on which defendants allegedly posted the report are not public
forums under section 425.16, subdivision (e)(3),15 and thus,
whether McIntosh engaged in protected activity turns on whether
publication of the report on the KNRM and Ancestry.com
websites was in connection with an issue of public interest.
McIntosh contends the report involves the public’s interest
in the impact of inaccurate BIA records on the rights and benefits
of California Native Americans. Reyes responds that the public
interest argued by McIntosh is too broad and amorphous to
support her contention. McIntosh has the better argument.
We apply a two-part analysis to determine whether a
defendant’s conduct was made “in connection with” a public issue
15 Even if the communications were not made in a public
forum, “section 425.16, subdivision (e)(4) . . . can encompass a
private discussion between private individuals” so long as it
furthers the debate on a public issue. (Murray v. Tran (2020)
55 Cal.App.5th 10, 27; accord, FilmOn, supra, 7 Cal.5th at p. 151
[section 425.16, subdivision (e)(4), applies to “public or private
speech or conduct”]; Wilbanks v. Wolk (2004) 121 Cal.App.4th
883, 897 [“Section 425.16, therefore, governs even private
communications, so long as they concern a public issue.”].)
28
or issue of public interest. “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.
[Citation.] Second, we ask what functional relationship
exists between the speech and the public conversation about [the]
matter of public interest. It is at the latter stage that context
proves useful.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019)
7 Cal.5th 133, 149-150 (FilmOn).) “‘[I]t is not enough that the
statement refer to a subject of widespread public interest; the
statement must in some manner itself contribute to the public
debate.’” (Id. at p. 150.) “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.” (Id. at p. 151.)
“The public interest requirement . . . must be ‘“construed
broadly” so as to encourage participation by all segments of our
society in vigorous public debate related to issues of public
interest.’” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; accord,
Cross v. Cooper (2011) 197 Cal.App.4th 357, 372.) “‘[M]atters of
public interest include legislative and governmental
activities . . . .’” (MMM Holdings, Inc. v. Reich (2018)
21 Cal.App.5th 167, 182; accord, Cross, at p. 372; cf. FilmOn,
supra, 7 Cal.5th at pp. 145-146 [“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 . . . ‘affect[ed] a community in a manner similar to that of
a governmental entity.’”].)
29
The report implicates the policies of at least two
governmental entities, the BIA and the NAHC. As to the former,
the report seeks to identify the continuing impact of historical
errors in enrollment records, and, as to the latter, the report
asserts the Commission’s policies “enable[] identity theft by
relying on the authority of the [BIA] to determine eligibility for
participation in repatriation.” Moreover, the policies of these two
agencies “‘affect large numbers of people beyond the direct
participants’” because the policies affect the rights of the present-
day descendants of California Native American tribes. (FilmOn,
supra, 7 Cal.5th at p. 145.) Accordingly, the report implicates
issues of public interest.
As to “what functional relationship exists between the
speech and the public conversation about [the] matter of public
interest,” the report purports to identify the specific historical
example of the wrongful enrollment of three siblings (one of
whom was Reyes’s ancestor) on the 1933 California Indian
Judgment Roll as proof of a larger problem with historical errors
in BIA records pertaining to California Native Americans “to
ensure the rights of all California Indian descendants are
protected as intended by law.” Therefore, the report
“participated in” and “furthered” the “discourse that makes [the]
issue one of public interest.” (FilmOn, supra, 7 Cal.5th at p. 151;
see Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939, 948
[“speech to the public about a doctor’s qualifications furthers the
public discourse on that matter”]; Cross v. Cooper, supra,
197 Cal.App.4th at p. 375 [defendant’s conversation with
prospective homebuyer’s agent about a registered sex offender
living nearby “directly related” to an issue of public interest
because it “served th[e] interests” of preventing child abuse and
30
protecting children].) McIntosh’s publication of the report on the
KNRM and Ancestry.com websites is therefore protected activity
under section 425.16, subdivision (e)(3).16
4. Reyes has not demonstrated a probability of
prevailing on his causes of action for defamation,
invasion of privacy, and intentional infliction of
emotional distress
Reyes has failed to meet his burden on appeal to show the
trial court erred in finding he did not show a probability of
prevailing on the merits as to his causes of action for defamation,
invasion of privacy, and intentional infliction of emotional
distress because he does not address the second step of the anti-
SLAPP analysis in his opening or reply briefs, and thus he has
forfeited any argument on the second step of the analysis.
(Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th
59, 72; Golden Door Properties, LLC v. County of San
Diego (2020) 50 Cal.App.5th 467, 555.)
16 We reject Reyes’s contention McIntosh’s conduct was illegal
as a matter of law and therefore outside of the anti-SLAPP
statute’s protections. This exception to the anti-SLAPP statute’s
protections applies only when “the defendant concedes, or the
evidence conclusively establishes, that the assertedly protected
speech or petition activity was illegal as a matter of law.”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) “‘[I]llegal’” in this
context refers to criminal conduct, not merely violating a rule or
statute. (Mendoza v. ADP Screening & Selection Services,
Inc. (2010) 182 Cal.App.4th 1644, 1654.) McIntosh does not
concede her conduct was criminal, and Reyes failed to present
evidence establishing McIntosh’s conduct was criminal as a
matter of law.
31
Accordingly, the trial court did not err in granting
McIntosh’s special motion to strike these causes of action.17
17 Reyes requests we take judicial notice of 10 documents he
submitted to the trial court with his request for judicial notice in
support of his opposition to Escobar’s and McIntosh’s special
motions to strike, including Escobar’s responses to Reyes’s
discovery requests, the BIA’s response to Reyes’s request for
information, and other governmental communications with
Reyes. The court denied Reyes’s request because the documents
are “reasonably subject to dispute and are not capable of
immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” In his request on appeal,
Reyes argues only that the documents are relevant. Reyes has
not shown the trial court abused its discretion in denying his
request, and we therefore also deny his request. (See CREED-21
v. City of San Diego (2015) 234 Cal.App.4th 488, 520 [“We apply
the abuse of discretion standard in reviewing a trial court’s ruling
denying a request for judicial notice”].) Reyes also requests we
take judicial notice of state and federal court records in other
matters, Department of the Interior regulations, American Bar
Association Rules of Professional Conduct, sections of the
Business and Professions Code, the California State Bar
Compendium of Professional Responsibility Index, and emails
between McIntosh and Reyes. We deny Reyes’s request because
the documents are not relevant to our resolution of this
appeal. (See Coyne v. City and County of San Francisco (2017)
9 Cal.App.5th 1215, 1223, fn. 3 [denying judicial notice as to
documents that were not relevant to court’s analysis]; Arce v.
Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471,
482 [“We also may decline to take judicial notice of matters that
are not relevant to dispositive issues on appeal.”].) Reyes also
moves to strike portions of Escobar’s appellate briefs for failure to
comply with the Rules of Court and inclusion of arguments not
made before the trial court, Escobar’s respondent’s appendix for
32
DISPOSITION
The order granting Escobar’s special motion to strike under
section 425.16 is reversed. The order granting McIntosh’s special
motion to strike is reversed as to Reyes’s causes of action for
professional negligence and negligence and affirmed in all other
respects. Reyes is entitled to recover his costs as to his appeal of
Escobar’s special motion to strike. The parties are to bear their
own costs on appeal as to McIntosh’s special motion to strike.
FEUER, J.
We concur:
SEGAL, Acting P. J.
WISE, J.*
inclusion of irrelevant evidence, and McIntosh’s appellate brief
for referring to facts outside the record. We exercise our
discretion to disregard the noncompliance. (See Cal. Rules of
Court, rule 8.204(e)(2)(C).))
*Judge of the Alameda County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33