Vaughan v. Canning CA2/5 ( 2023 )

Filed 10/16/23 Vaughan v. Canning CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
MICHAEL A. VAUGHAN, B311985
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 18SMCV00399)
JOHN CANNING,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Schwimer Weinstein, Michael E. Schwimer, and Mitchell E.
Rosenweig for Defendant and Appellant.
Bailey Law Corporation and William R. Bailey for Plaintiff
and Respondent.
Defendant and Appellant Michael Vaughan (Vaughan) and
plaintiff and respondent John Canning (Canning) are erstwhile
friends who grew apart and ultimately were embroiled in conflict.
After a heated disagreement at Vaughan’s home about politics,
Canning changed Vaughan’s computer password and thereby
prevented Vaughan from accessing his business files. Vaughan
sued Canning for damages attributable to the password change
and Canning responded with an anti-SLAPP motion (Code Civ.
Proc.,1 § 425.16), contending the lawsuit sought to suppress his
political speech and litigation-related activity. We consider
whether the trial court correctly rejected these arguments and
denied the anti-SLAPP motion.
I. BACKGROUND
A. The Facts as Alleged in the Operative Complaint
Vaughan, a public insurance adjuster, taught his friend
Canning the business of public insurance adjusting and allowed
Canning to use his home office and equipment to conduct
Canning’s business. Vaughan also occasionally gave Canning
work to help Canning earn extra money.
In July 2018, Canning was at Vaughan’s home and the two
got into a heated argument about “politics” (the record does not
permit being any more specific). Vaughan asked Canning to
leave, but Canning initially refused and verbally threatened
Vaughan. Canning only left the premises after Vaughan’s adult
son intervened. The following day, Vaughan and Canning
resumed normal friendly relations.
1
Undesignated statutory references that follow are to the
Code of Civil Procedure.
2
Months later, in October 2018, the scenario was largely
repeated: Canning and Vaughan had a “political argument” at
Vaughan’s home, Vaughan asked Canning to leave, Canning
refused and pushed Vaughan, and Canning departed only after
Vaughan’s adult son intervened.
Soon thereafter, Vaughan learned Canning paid a visit to
Vaughan’s attorney and told the attorney about the fight the two
men had and his (Canning’s) intention to sue Vaughan. Vaughan
also discovered Canning had secretly changed the password to
Vaughan’s computer, rendering Vaughan unable to access his
business files. As a result, Vaughan was prevented from
contacting clients, meeting deadlines, and performing work he
had been contracted to perform. Vaughan contacted Canning and
asked for the new password, but Canning refused to provide it.
In November 2018, Canning purported to provide Vaughan
with the password through their respective attorneys, but the
password Canning provided (DrtyDblRbrHole69) did not work.
Vaughan was accordingly unable to access his files for more than
30 days.
B. Court Proceedings on the Complaint
Vaughan filed the original complaint in this action in
December 2018 and an amended complaint (the operative
complaint) in May 2020.2 The operative complaint alleges seven
causes of action: conversion; intentional interference with
prospective economic advantage; intentional interference with
2
Canning filed a complaint against Vaughan in January
2019 that alleged seven causes of action arising in part out of the
same altercations. The cases were ordered related.
3
contract; negligent interference with prospective economic
relations; breach of fiduciary duty; unfair business practices; and
inducing breach of contract. Vaughan sought damages, including
punitive damages, and a permanent injunction against Canning
barring him from engaging in any wrongful act or practice
described in the complaint.
Canning filed a section 425.16 special motion to strike the
operative complaint. The motion argued the claims in the
operative complaint arose out of Canning’s political speech, which
Canning contended was protected activity under section 425.16,
subdivision (e)(4), and out of Canning’s visit to Vaughan’s
attorney, which Canning contended was protected activity under
section 425.16, subdivision (e)(2). Canning also argued Vaughan
could not demonstrate a probability of prevailing on his
substantive claims because they are barred by the litigation
privilege, preempted by the Federal Copyright Act, and devoid of
adequate factual support.
Vaughan opposed the anti-SLAPP motion and maintained
none of his claims arose from anti-SLAPP protected activity.
Vaughan explained his causes of action were all predicated on
Canning’s surreptitious password change that interfered with his
business, not the political arguments they had at Vaughan’s
home or Canning’s visit to Vaughan’s attorney—which were at
best incidental allegations. Vaughan also argued he could
establish a likelihood of prevailing on the merits of his claims,
but he submitted no evidence to that effect.
After holding a hearing on the anti-SLAPP motion, the trial
court denied the motion, finding none of the claims arose from
protected activity. The court explained the allegations
concerning the parties’ arguments and Canning’s visit to
4
Vaughan’s attorney were just background facts and the complaint
could not be read as attempting to hold Canning liable for
constitutionally protected speech or pre-litigation activity.
II. DISCUSSION
Vaughan’s lawsuit is obviously not a SLAPP (strategic
lawsuit against public participation) and the arguments Canning
offers to claim that it is are not serious arguments. Vaughan’s
claims arise from Canning’s act of changing Vaughan’s password
and subsequent refusal to provide the new password. (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1062 [“A claim arises from protected activity when that
activity underlies or forms the basis for the claim”].) Vaughan’s
claims do not arise from, or otherwise premise liability on,
Canning’s unspecified “political” argument with Vaughan,
Canning’s conversations with Vaughan’s attorney, or the
substance of Canning’s password change itself.3
A. Protected Activity under the Anti-SLAPP Statute
“[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, supra, 2 Cal.5th at 1063; accord,
3
Because we hold Canning did not carry his burden to
establish Vaughan’s complaint arises from activity protected by
section 425.16, we need not (and do not) discuss whether
Vaughan has a probability of prevailing on any of his claims.
(Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th
802, 823.)
5
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010,
1015 [anti-SLAPP analysis begins with a consideration of the
elements of each claim, “the actions alleged to establish those
elements, and whether those actions are protected”].) Whether a
claim is based on protected activity turns on “whether the ‘“core
injury-producing conduct”’ warranting relief under the cause of
action is protected activity.” (Mission Beverage Co. v. Pabst
Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698.)
There are four categories of protected activity under the
anti-SLAPP statute. Canning’s appellate brief invokes the
subdivision (e)(2), (e)(3), and (e)(4) categories, which encompass
(respectively) statements in connection with an issue under
review by a judicial body, statements in a public forum in
connection with an issue of public interest, and conduct in
furtherance of the exercise of the constitutional right of free
speech in connection with a public issue or an issue of public
interest. The second of these invocations (§ 425.16, subd. (e)(3))
is forfeited for failure to argue the point below. (Flatley v. Mauro
(2006) 39 Cal.4th 299, 321, fn. 10; Hunter v. CBS Broadcasting
Inc. (2013) 221 Cal.App.4th 1510, 1526; Bently Reserve LP v.
Papaliolios (2013) 218 Cal.App.4th 418, 436.)
B. None of Vaughan’s Claims Arises from the Parties’
“Political Argument” or Canning’s Conversation with
White
The anti-SLAPP statute applies only where protected
“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, supra, 2
Cal.5th at 1060; Rand Resources, LLC v. City of Carson (2019) 6
6
Cal.5th 610, 620 [a defendant’s first-step burden requires a
showing “that the ‘conduct by which plaintiff claims to have been
injured falls within one of the four categories described in
subdivision (e) [of section 425.16]’ [citation], and that the
plaintiff’s claims in fact arise from that conduct”].) Accordingly,
we first identify the allegations that supply the elements of a
plaintiff’s claims because, as already mentioned, “[a]llegations of
protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
394.)
In his opening brief on appeal, Canning contends that
because each enumerated cause of action in Vaughan’s complaint
incorporates all of the allegations in the complaint, “each of the
substantively factual contentions in Vaughan’s FAC arise out of”
Canning’s protected speech—including, as relevant here, the
political argument between Canning and Vaughan, and
Canning’s statements to White threatening to sue Vaughan.
While Canning is correct that the causes of action incorporate the
relevant factual allegations, the mere incorporation of allegations
referencing protected activity does not by itself establish the
claims arise from protected activity. (E.g., Olivares v. Pineda
(2019) 40 Cal.App.5th 343, 352 [finding “incorporated allegations
of protected activity merely provide[d] context and are not the
basis for [the] plaintiffs’ claim for recovery”]; Kajima Engineering
and Construction, Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921, 931-932 [“[c]omplaints generally incorporate
prior allegations into subsequent causes of action” and mere
incorporation by reference does not taint causes of action that do
not arise from protected activity].)
7
The injury producing conduct alleged in each of Vaughan’s
claims against Canning is Canning’s act of changing Vaughan’s
password without his consent and refusing to give Vaughan the
new password, thereby preventing Vaughan from accessing his
files. The “specific acts of alleged wrongdoing” (Bergstein v.
Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 804)
do not involve Canning’s argument with Vaughan or Canning’s
direct or indirect communications with White. Vaughan’s claims
thus do not arise from those allegations, which—at the very
most—“merely provide context.” (Baral, supra, 1 Cal.5th at 394;
see also Bonni, supra, 11 Cal.5th at 1012.)
In his reply brief, Canning for the first time addresses the
elements of Vaughan’s causes of action and argues the
allegations regarding his communications with Vaughan’s
attorneys are necessary to supply the element of wrongfulness or
malice to Vaughan’s claims, and to his prayer for punitive
damages.4 As an initial matter, we need not address arguments
raised for the first time in reply. (People v. Tully (2012) 54
Cal.4th 952, 1075 [“It is axiomatic that arguments made for the
first time in a reply brief will not be entertained because of the
unfairness to the other party”].) Regardless, to the extent that
Canning’s argument is a response to rhetoric employed in
4
Canning mentioned his communications with White
supported Vaughan’s prayer for punitive damages in passing in
his opening brief, without any citation to authority. That brief
reference does not require us to consider this point any further as
“issues not addressed as error in a party’s opening brief with
legal analysis and citation to authority are forfeited.” (Golden
Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th
733, 786.)
8
Vaughan’s respondent’s brief (i.e., his assertions that Canning’s
actions were malicious), it is the allegations of the complaint and
the elements of Vaughan’s causes of action that matter, not
language in his appellate brief.5
C. Canning’s Change of Vaughan’s Password Is Not
Protected under Subdivision (e)(4)
Section 425.16, subdivision (e)(4) is a “catchall” provision,
which requires a two-stage analysis. (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 149.) “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
some matter of public interest. It is at the latter stage that
context proves useful.” (Id. at 149-150.)
The “first step is satisfied so long as the challenged speech
or conduct, considered in light of its context, may reasonably be
understood to implicate a public issue, even if it also implicates a
private dispute.” (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1253.)
The second step “requires us to determine whether a functional
5
Additionally, we disagree with Canning’s assertion that,
absent the allegations he contends should have been stricken, the
complaint substantively alleges “nothing more than an employee
who innocently changed a password during the regular course of
his employment.” If nothing else, the complaint also alleges
Canning refused to provide Vaughan with the new password,
thereby preventing him from accessing his files for approximately
one month. In context, it defies credulity to characterize the
changing of Vaughan’s password as an innocent action.
9
relationship exists between the speech in question and the public
conversation about the issue of public interest.” (Bishop v. The
Bishop’s School (2022) 86 Cal.App.5th 893, 906.) The speech
cannot merely “‘refer to a subject of widespread public interest;
the statement must in some manner itself contribute to the
public debate.’” (FilmOn, supra, 7 Cal.5th at 150.) In evaluating
this step, we “must consider the particular context of the speech,
including the speaker’s identity; the ‘purpose’ of the speech; the
nature of the audience and the intended audience; and the
‘timing’ and ‘location’ of the communication.” (Murray v. Tran
(2020) 55 Cal.App.5th 10, 30.)
Canning contends his act of changing Vaughan’s password
was an act of political protest protected under section 425.16,
subdivision (e)(4). The nature of Canning’s purported political
protest, like the specifics of the “political argument” between
Canning and Vaughan, is unspecified. We therefore cannot make
any meaningful assessment at the first stage of FilmOn analysis:
yes, the public may be interested in politics, but that is far too
general a statement of the asserted issue of public interest in
play and Canning’s anti-SLAPP evidence does nothing to clarify
things. But we shall assume for argument’s sake that Canning
has cleared the first FilmOn hurdle because it is obvious he has
not cleared the second. As great as the public’s interest may be
in politics, that interest cannot reasonably be said to extend to
Canning’s surreptitious change of a computer password while a
guest at his former friend’s home.6
6
There are neither allegations nor evidence in the record
that establish any functional relationship between Canning’s act
of changing Vaughan’s password (or the language of the incorrect
password he later provided to Vaughan through counsel) and any
10
DISPOSITION
The order denying Canning’s anti-SLAPP motion is
affirmed. Vaughan is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
public conversation about politics. Similarly, there is no
allegation or evidence indicating the incorrect password Canning
communicated to Vaughan through their respective counsel was
publicized beyond those few individuals. That Canning might
have communicated some opaque private message to Vaughan
through the wording of the false password does not contribute to
any public debate. Additionally, the record does not reflect any
purpose to the conduct beyond impacting Vaughan.
11