Koerber v. Project Veritas CA2/3

Filed 12/23/22 Koerber v. Project Veritas CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
KIMBERLY KOERBER, B298540
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC681083
v.
PROJECT VERITAS et al.,
Defendants and Appellants.
APPEAL and CROSS-APPEAL from orders of the Superior
Court of Los Angeles County, Elaine Lu, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-
Lewis and Timothy Rand-Lewis for Plaintiff and Appellant.
Litchfield Cavo, G. David Rubin and Elizabeth M.
Sanguinetti for Defendants and Appellants.
_______________________________________
INTRODUCTION
This is plaintiff Kimberly Koerber’s second lawsuit against
defendants Project Veritas, Project Veritas Action Fund (Action
Fund), James O’Keefe III (O’Keefe), and Christian Hartsock
(defendants). The trial court granted in part defendants’ special
motion to strike Koerber’s complaint under Code of Civil
Procedure1 section 425.16 (anti-SLAPP statute), dismissing
Koerber’s claims against Project Veritas, Action Fund, and
O’Keefe for intentional infliction of emotional distress (IIED),
negligence, and intentional interference with prospective
economic advantage (economic interference), as well as all of
Koerber’s claims against Hartsock. As to Project Veritas, Action
Fund, and O’Keefe, the court denied the anti-SLAPP motion with
respect to Koerber’s claims for defamation and unfair business
practices. The court awarded defendants $40,942 in attorney fees
and costs.
Koerber appeals from the court’s orders granting in part
defendants’ anti-SLAPP motion and awarding defendants
attorney fees and costs. She raises several procedural and
substantive arguments challenging both orders. Project Veritas,
Action Fund, and O’Keefe cross-appeal from the court’s order
denying in part their anti-SLAPP motion, arguing Koerber failed
to show a reasonable probability of prevailing on her claims for
defamation and unfair business practices. As we explain, the
parties’ arguments lack merit. We therefore affirm the court’s
orders.
1All undesignated statutory references are to the Code of Civil
Procedure.
2
FACTS AND PROCEDURAL BACKGROUND
1. The Parties
Koerber used to work as a sales consultant for an
educational content company, where she sold “National
Geographic materials.” According to Koerber, she never occupied
a “management” position at the company or worked as an
“official” in the book publishing industry. Nor did she ever have a
policy making role with respect to the development of educational
policies, such as the Common Core curriculum.
Project Veritas is a non-profit “media organization” that
engages in “undercover investigative journalism.” Project Veritas
claims its “reports average over 100,000 views online” and are
often covered by “other news outlets.” One of Project Veritas’s
goals is to “educate and inform the public about issues of public
interest.” Like Project Veritas, Action Fund is a non-profit media
organization involved in investigative journalism; O’Keefe is
Action Fund’s president. According to Koerber, Hartsock is an
officer and employee of Project Veritas.
2. Koerber’s Interview and the Termination of Her
Employment
In the fall of 2015, Project Veritas “launched an
investigation into the Common Core curriculum.” The
investigation focused on the “relationship between textbook
companies and Common Core standards, how textbook companies
promoted Common Core to public officials and legislators, and
the lobbying tactics of textbook companies,” as well as “the
reaction of those within the textbook industry to the backlash
against Common Core.”
3
In November 2015, an unknown caller asked Koerber to
participate in an interview, which the caller claimed would help
then-California Attorney General Kamala Harris formulate
“policy” on “an issue”. The caller told Koerber the meeting would
be “private” and “confidential.”
The next day, Koerber went to a Starbucks and sat in a
patio area that she believed was private. There, she met two
people, one of whom gave her a business card, which stated the
cardholder’s name was “Alyssa Harris,” a “project manager” with
“Breakthrough Dev Group.” The interviewers told Koerber her
statements would be used “as anonymous research to assist
Kamala Harris in formulating policy.” The interview was video
and audio recorded without Koerber’s knowledge and consent.
In January 2016, Project Veritas published a series of
reports on Common Core. The third report, which was originally
published on YouTube in late January 2016, is a video featuring
clips of Koerber’s November 2015 interview, as well as clips of
several candidates from the 2016 presidential primary election
and O’Keefe talking about Common Core (January 2016 Video).
The video also features clips of two other book publishing
employees. In those clips, one of the employees states: “I hate
kids. I’m in it to sell books, don’t even kid yourself for a
heartbeat.” The other employee states: “There’s always money in
it. It’s never about the kids.”
Koerber was fired from her job as a sales consultant after
Project Veritas published the January 2016 Video.
3. Koerber’s First Lawsuit
In February 2017, Koerber sued, among others, her former
employer, Project Veritas, and several entities and individuals
associated with Project Veritas, including Action Fund, O’Keefe,
4
and Hartsock. Koerber asserted 23 causes of action, including 11
against Project Veritas based on allegations that the organization
recorded, edited, and published the January 2016 Video under
false pretenses and without Koerber’s knowledge or consent.
In October 2017, Project Veritas moved to strike Koerber’s
claims against the organization under the anti-SLAPP statute.
The court granted Project Veritas’s motion and dismissed the
organization from Koerber’s lawsuit. We affirmed the order
granting Project Veritas’s anti-SLAPP motion in September 2019.
4. Project Veritas’s Second Video
In September 2017, O’Keefe, through Action Fund, released
a video in which he addresses Koerber’s first lawsuit, as well as
other plaintiffs’ lawsuits, against the organization (September
2017 Video). The video was posted on Action Fund’s website,
YouTube, Twitter, and Facebook.
At the beginning of the video, O’Keefe walks into an office
and stands in front of a desk containing a laptop and several
binders and documents, including copies of various court filings.
O’Keefe addresses the camera and talks about two lawsuits filed
against defendants.
O’Keefe then addresses Koerber’s first lawsuit against
defendants. As O’Keefe talks, a photograph of the cover page to a
motion filed in Koerber’s first lawsuit appears in the background
of the video while O’Keefe holds a copy of what appears to be
Koerber’s complaint from that lawsuit with a large yellow sticky
note attached to the front that says, “KOERBER.” O’Keefe says
this about Koerber and her first lawsuit: “We got another lawsuit
from this official who … [W]hen we did the Common Core
investigation last year, that’s the one where they said we don’t
care about kids[;] it’s all about money. [¶] Well, one of the people
5
in the book publishing industry has sued us. I don’t know why
she’s suing us. She should sue herself; she’s the one who said
what she said, and she didn’t deny it.”
Later in the video, O’Keefe speculates that the plaintiffs
may have conspired to sue defendants at the same time and
claims the lawsuits were beneficial “because [defendants are]
raising more funds.” At the end of the video, O’Keefe asks his
viewers to “stay tuned” because defendants would soon release
more content from their “American Pravda Series,” which was
“aimed at the media.”
5. The Current Lawsuit
In October 2017, Koerber filed a second lawsuit against
Project Veritas, Action Fund, O’Keefe, and Hartsock.2 Koerber’s
complaint asserts five causes of action against defendants: (1)
IIED; (2) unfair business practices; (3) negligence; (4) defamation;
and (5) economic interference.
Koerber’s claims against defendants arise out of the
statements that O’Keefe made about her in the September 2017
Video. Specifically, the crux of Koerber’s claims is that O’Keefe
defamed her when he claimed she was an “official” in the book
publishing industry and insinuated that she said, “ ‘we don’t care
about kids all we care about is money.’ ”
Koerber claimed the September 2017 Video brought a
“renewed interest” in the January 2016 Video—i.e., the video that
formed the basis for Koerber’s first lawsuit. She also claimed
defendants released the September 2017 Video to, among other
things, “solicit ‘donations’ to fund [their] ‘defense’ ” against
2 Koerber also sued Allison Maass, who is not a party to this appeal.
6
Koerber’s and the other plaintiffs’ lawsuits. Among other things,
Koerber sought monetary relief, including punitive damages, and
an injunction requiring Project Veritas to remove and expunge all
recordings of, and statements about, her.
In July 2018, defendants moved to strike all the claims in
Koerber’s complaint under the anti-SLAPP statute.3 Defendants
argued Koerber’s entire lawsuit arose out of protected conduct—
i.e., defendants’ journalistic activities relating to their Common
Core investigation and public commentary on Koerber’s lawsuit
arising out of that investigation. Defendants also argued Koerber
couldn’t establish a reasonable probability of succeeding on the
merits of her claims because: (1) she couldn’t prove the elements
of any of those claims; (2) defendants’ conduct was protected by
the litigation privilege; and (3) Koerber’s claims in the instant
lawsuit were precluded by the adverse rulings against Koerber in
her first lawsuit against defendants.
In support of their motion, defendants filed, among other
things, declarations executed by Russell Verney, Project Veritas’s
and Action Fund’s executive director; G. David Rubin and
Elizabeth M. Sanguinetti, defendants’ counsel; and Hartsock.
Hartsock testified he wasn’t involved in the production or release
of the September 2017 Video.
Defendants also filed a request for judicial notice of the
following items: (1) a copy of the January 2016 Video; (2) a copy
of the September 2017 Video; (3) several documents and minute
orders from Koerber’s first lawsuit against defendants; (4) several
news articles addressing defendants’ activities; and (5) the
3Defendants also filed a demurrer to Koerber’s complaint, a copy of
which Koerber hasn’t included in the record on appeal.
7
existence of three lawsuits other plaintiffs had filed against some
of the defendants.
In March 2019, Koerber opposed the anti-SLAPP motion.
She argued the motion was untimely because it was not filed
within 60 days of when Koerber filed her complaint. Koerber also
claimed the court lacked jurisdiction to rule on the motion
because it did not schedule a hearing until more than 30 days
after the motion was filed.
As to the merits, Koerber argued her claims were not
subject to the anti-SLAPP statute because defendants’ challenged
conduct was commercial speech under section 425.17, subdivision
(c). Alternatively, Koerber asserted none of her claims arose out
of protected activity, and, in any event, she established a
probability of prevailing on all her claims.
In support of her opposition, Koerber filed her own
declaration as well as declarations executed by her counsel,
Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis. Koerber
testified that she was never an “official” or other “influential
person” in the publishing industry, and she never had a role in
“policy making” for the Common Core curriculum. Koerber also
denied ever stating, “ ‘we don’t care about kids, all we care about
is money.’ ” Koerber claimed she lost “contracts, income, benefits,
401k contributions, health insurance, car, phone, email, vacation
and bonuses, and [became] emotionally distressed and physically
ill” because of the September 2017 Video.
Koerber lodged over 150 objections to the evidence that
defendants filed in support of their anti-SLAPP motion, and she
opposed defendants’ request for judicial notice.
As part of their reply papers, defendants lodged over 300
objections to the evidence Koerber submitted in support of her
8
opposition, many of which challenged Koerber’s and her counsel’s
statements as hearsay, lacking foundation, or legal conclusions.
After a hearing in April 2019, the court took defendants’
anti-SLAPP motion under consideration. In May 2019, the court
issued a 50-page ruling.
The court sustained more than 30 of Koerber’s objections to
defendants’ evidence and more than 100 of defendants’ objections
to Koerber’s evidence. The court also granted defendants’ request
for judicial notice in its entirety, taking judicial notice of the
existence and content of, but not the truth of any statements
included in, the January 2016 Video and the September 2017
Video. The court also took judicial notice of the existence of, but
not the truth of any statements included in, the various news
articles discussing defendants’ activities, the documents from
Koerber’s first lawsuit against defendants, and the three lawsuits
that were filed by other plaintiffs against some of the defendants.
The court rejected Koerber’s claims that the motion was
untimely and that the court did not hear the motion in a timely
manner. The court also rejected Koerber’s contention that all her
claims were exempt from the anti-SLAPP statute because they
arose out of defendants’ commercial speech.
As to Hartsock, the court found he wasn’t involved in any of
the conduct giving rise to Koerber’s claims. Accordingly, the court
granted the anti-SLAPP motion as to all of Koerber’s claims
against Hartsock.4
As to the remaining defendants, the court granted the
motion in part and denied it in part. Under the first prong of the
anti-SLAPP statute, the court found defendants’ September 2017
4 Koerber doesn’t challenge this part of the court’s ruling on appeal.
9
Video qualified as protected speech. The video addressed an issue
under review by a judicial body, and it was published in a public
forum—i.e., on various websites and social media platforms—and
it discussed issues of public interest—i.e., lawsuits filed against
defendants and defendants’ investigations of topics that garnered
news coverage and widespread interest among the public.
Under the second prong, the court rejected defendants’
arguments that Koerber’s claims in this lawsuit arose out of
privileged conduct or were barred by the parties’ litigation in
Koerber’s first lawsuit, reasoning that the two actions challenged
different conduct. The court then found Koerber demonstrated a
probability of prevailing on her claims for defamation and unfair
business practices and failed to show a likelihood of success on
her claims for IIED, economic interference, and negligence.
In December 2019, the court granted defendants’ motion for
attorney fees and costs, awarding them $40,942 as prevailing
parties under the anti-SLAPP statute (§ 425.16, subd. (c)).
Koerber appeals from the order granting in part and
denying in part defendants’ anti-SLAPP motion and the order
awarding defendants fees and costs. Defendants cross-appeal
from the order on their anti-SLAPP motion.
DISCUSSION
Timeliness of the Anti-SLAPP Motion
As a preliminary matter, Koerber argues the court should
have denied defendants’ anti-SLAPP motion as untimely.
Alternatively, Koerber contends the court lacked jurisdiction to
rule on the motion because more than 30 days passed between
when the motion was filed and heard. Both these arguments lack
merit.
10
1. Relevant Background
Koerber filed her complaint on October 25, 2017. On
November 29, 2017, Koerber filed a proof of service of summons,
which stated that an agent tried to personally serve Hartsock on
November 2, 2017, but Hartsock refused to accept copies of the
complaint, the summons, and other documents. On December 20,
2017, Koerber filed proofs of service concerning Project Veritas,
Action Fund, and O’Keefe. As to Project Veritas and Action Fund,
Koerber mailed the summons, the complaint, and other
documents on September 7, 2017 and again on December 20,
2017. As to O’Keefe, Koerber mailed the same documents on
December 20, 2017.
On January 9, 2018, defense counsel sent Koerber’s counsel
an email concerning the “purported service of the summons and
complaint.” Defense counsel claimed service “was either non-
existent [or] procedurally improper and therefore ineffective and
subject to a motion to quash for lack of proper service.” Defense
counsel asked Koerber’s counsel to withdraw the “purported
service of summons and complaint as to [defendants]” and send
defendants “Notice of Acknowledgement of Receipt forms and
related documents,” which defendants would agree to sign.
Defense counsel stated that once the parties executed the
acknowledgment of receipt forms, “the deadline for [defendants]
to file responsive pleadings to [Koerber’s] complaint will be
determined by the dates the Notice of Acknowledgement forms
are returned.”
On January 16, 2018, Koerber’s counsel replied to defense
counsel’s email with a one word response: “Agreed.”
On May 3, 2018, Koerber sent defendants
acknowledgement of receipt forms. On May 17, 2018, before
11
defendants signed the acknowledgment of receipt forms, Koerber
filed a supplemental proof of service of summons and complaint,
asserting service was effectuated on all defendants on May 3,
2018. On May 23, 2018, defendants signed the forms,
acknowledging receipt of the summons, the complaint, and other
documents.
On July 19, 2018, defendants filed their anti-SLAPP
motion. Around the same time, defense counsel tried to reserve a
date for a hearing on the motion. According to the court’s online
reservation system, the soonest available date for a hearing on an
anti-SLAPP motion was February 22, 2019, or more than 30 days
after defendants served the motion. Defense counsel also spoke to
the court clerk, who confirmed that the soonest the court could
hear the anti-SLAPP motion was in February 2019.
On February 14, 2019, after her opposition was due,
Koerber requested and received a continuance of the hearing on
defendants’ anti-SLAPP motion and an extension of time for
filing her opposition. The court ordered Koerber to file her
opposition “no later than February 26, 2019.” Koerber did not file
her opposition until March 11, 2019.
In her opposition, Koerber argued that defendants’ anti-
SLAPP motion was untimely because it was not filed within 60
days of when Koerber first tried to serve defendants with the
summons and complaint—i.e., between early September and late
December 2017. Koerber claimed that although she agreed to
withdraw her original proofs of service and effectuate service
through the acknowledgement of receipt forms that she sent
defendants in May 2018, she did so only for the purpose of
allowing defendants additional time to file responsive pleadings,
such as a demurrer or an answer, but not an anti-SLAPP motion.
12
Koerber also argued that the court lacked jurisdiction to rule on
the anti-SLAPP motion because the court did not hear the motion
within 30 days of when it was filed.
On April 22, 2019, the court heard argument on defendants’
anti-SLAPP motion. On May 14, 2019, the court issued its
written ruling on the motion. The court found that defendants
timely filed their anti-SLAPP motion, and, in any event, any late
filing was excused based on the “ambiguity in the parties’
stipulation regarding the effect of service by notice and
acknowledgement of receipt.” The court also found it was proper
to hear the motion more than 30 days after the motion was filed
due to “congestion” in the court’s docket and Koerber’s own
conduct.
2. Defendants’ anti-SLAPP motion was timely, and, in any
event, the court properly excused any delay.
An anti-SLAPP 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.” (§ 425.16, subd. (f).) The
plaintiff bears the burden of establishing the court abused its
discretion in allowing the defendant to file a late anti-SLAPP
motion. (Hoang v. Tran (2021) 60 Cal.App.5th 513, 526.) As we
explain, defendants timely filed their anti-SLAPP motion.
In January 2018, at defense counsel’s request, Koerber
agreed to withdraw the proofs of service that she filed in
November and December 2017. In early May 2018, Koerber’s
counsel sent defendants “Notice and Acknowledgment of Receipt”
forms. Each form indicated defendants received the summons,
the complaint, and other documents and stated that the
“summons and other documents identified … are being served
13
pursuant to section 415.30 of the California Code of Civil
Procedure.” (Italics added.)
Section 415.30 governs service of summons by mail. Under
subdivision (c) of that statute, service “is deemed complete on the
date a written acknowledgement of receipt of summons is
executed, if such acknowledgement thereafter is returned to
sender.” (§ 415.30, subd. (c).)
Defendants signed Koerber’s acknowledgement of receipt
forms on May 23, 2018, and Koerber doesn’t contend they failed
to return those forms to her. Thus, under section 415.30,
subdivision (c), service of the complaint was deemed complete on
May 23, 2018. Defendants, therefore, had 60 days from that date
to timely file their anti-SLAPP motion. Because defendants filed
their anti-SLAPP motion on July 19, 2018, their motion was
timely.
Koerber insists she agreed to withdraw her original proofs
of service and send defendants the acknowledgment of receipt
forms for the limited purpose of extending the time to file
“responsive pleadings,” such as an answer or a demurrer.
According to Koerber, she never agreed to extend the time to file
an anti-SLAPP motion beyond 60 days from the date she first
attempted to serve defendants—i.e., between September and
December 2017. Since defendants did not file their anti-SLAPP
motion until July 2018, or more than 60 days after Koerber
initially attempted to serve the last defendant, Koerber argues
that motion was untimely. We disagree.
To be sure, defense counsel noted in his January 9, 2018
email that the deadline for defendants to file any responsive
pleadings to Koerber’s complaint would be determined by the
date defendants returned the acknowledgment of receipt forms.
14
But nothing in the correspondence between defense counsel and
Koerber’s counsel indicates the parties intended for the execution
of the acknowledgement of receipt forms to determine only the
time for defendants to file responsive pleadings such as a
demurrer or an answer.
In any event, as the court explained below, the
correspondence between defense counsel and Koerber’s counsel
created, at most, an ambiguity as to whether the parties intended
the date of service of the summons and complaint by execution of
the acknowledgment of receipt forms to apply only to responsive
pleadings or to all other filings, including an anti-SLAPP motion.
Because the parties never explicitly agreed to use the new service
date only for purposes of filing a responsive pleading, such as a
demurrer or an answer, defendants reasonably could have
believed the time for filing an anti-SLAPP motion was
determined by the date they signed the acknowledgement of
receipt forms. (See § 415.30, subd. (c).) Thus, even if defendants
did not file their anti-SLAPP motion within 60 days of when
Koerber first attempted to serve defendants with the complaint,
the court did not abuse its discretion in considering the motion.
(See Hoang v. Tran, supra, 60 Cal.App.5th at p. 526 [court did
not abuse its discretion in crediting defendant’s mistaken but
reasonable belief that he timely filed his anti-SLAPP motion].)
3. The court did not err in hearing defendants’ anti-
SLAPP motion more than 30 days after it was filed.
Under section 425.16, subdivision (f), the court clerk must
schedule a hearing on an anti-SLAPP motion “not more than 30
days after the service of the motion unless the docket conditions
of the court require a later hearing.”
15
As defense counsel testified, defendants tried to schedule a
hearing on their motion within 30 days of the date it was filed—
i.e., July 19, 2018—but the first hearing for an anti-SLAPP
motion that was available through the court’s online reservation
system was not until February 2019. Defense counsel also spoke
to the court clerk, who confirmed that the court did not have any
dates available for a hearing on an anti-SLAPP motion earlier
than February 2019. Additionally, in its ruling on the anti-
SLAPP motion, the court explained that it was “well aware of the
congestion of its own motion calendar, especially for summary
judgments and anti-SLAPP motions, and the wait-time of
approximately six months for the soonest available hearing date
for such motions. In light of this congestion, any ex parte
application by [defendants] to advance the hearing on the instant
motion would have been futile.”
In short, the court’s docket conditions required a hearing
later than 30 days after defendants filed their anti-SLAPP
motion. The court, therefore, properly heard defendants’ motion.
(§ 425.16, subd. (f).)
Evidentiary Rulings
Koerber also challenges the court’s evidentiary rulings,
arguing the court erred when it sustained over 100 of defendants’
objections to evidence Koerber submitted in opposition to the
anti-SLAPP motion. As we explain, Koerber has forfeited any
challenge to the court’s evidentiary rulings because she (1) fails
to identify any specific evidence the court purportedly excluded in
error, and (2) fails to develop any meaningful factual and legal
analysis addressing the court’s rulings.
It is fundamental that a trial court’s ruling “is presumed to
be correct, and the appellant has the burden to prove otherwise
16
by presenting legal authority on each point made and factual
analysis, supported by appropriate citations to the material facts
in the record; otherwise, the argument may be deemed forfeited.”
(Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656 (Keyes).)
The appellant has the burden to support claims of error with
citations to the record and pertinent legal authority and to
explain the relevance of facts cited in her brief. (Ibid.; Bains v.
Moores (2009) 172 Cal.App.4th 445, 455 (Bains).) The court has
no obligation “ ‘ “to cull the record for the benefit of the
appellant.” ’ ” (Bains, at p. 455; see also Keyes, at pp. 655–656.)
The appellant forfeits any points that are not properly raised or
that are not supported by cognizable legal argument and factual
analysis. (Keyes, at pp. 655–656.)
Here is an example that illustrates the deficiencies in
Koerber’s argument challenging the court’s evidentiary rulings.
Koerber argues that “[t]o the extent that the Trial Court
sustained Defendants’ objections that the Declaration of Koerber
[string citation to nearly 100 pages of defendants’ objections to
Koerber’s declaration] and [Koerber’s counsel] [string citation to
nearly 80 pages of defendants’ objections to counsel’s
declaration], lack personal knowledge of the matters to which
they testified, and/or that their testimony lacks foundation and/or
constitutes hearsay or are otherwise inadmissible … , the Order
must be reversed.” Koerber then cites several authorities
generally defining the “personal knowledge” requirement, before
asserting: “In their declarations, Koerber and [counsel] testify
that the declarations are made on their own personal knowledge
of the facts. … As such, the evidence to which Koerber and
[counsel] testify is admissible.”
17
Koerber fails to discuss any specific evidence or statement
that she believes the court erroneously excluded, let alone any
objections that formed the basis for the court’s rulings. Instead,
she cites to nearly 200 pages of defendants’ objections to her and
her counsel’s declarations, apparently expecting us to “cull” the
record to determine which rulings she is challenging. That is not
our job. (Bains, supra, 172 Cal.App.4th at p. 455.) Koerber also
offers no factual analysis to support her argument. That is, she
doesn’t identify any of the statements for which she or her
counsel had personal knowledge of the underlying facts. Nor does
Koerber explain how she or her counsel obtained personal
knowledge of any of the facts to which they testified. (Keyes,
supra, 189 Cal.App.4th at pp. 655–656.)
Koerber also claims the court erred in excluding documents
attached to her counsel’s declaration. We disregard this
argument because Koerber doesn’t identify the documents she
claims were erroneously excluded. (Bains, supra, 172 Cal.App.4th
at p. 455 [the appellant must explain the relevance of facts cited
in her brief].)
In short, Koerber fails to develop any cognizable argument
challenging the court’s evidentiary rulings. Koerber has,
therefore, forfeited any challenge to those rulings.
The Ruling on the Merits of the Anti-SLAPP Motion
Both parties challenge the court’s ruling on the merits of
defendants’ anti-SLAPP motion. Koerber contends the court
erred in finding her claims arise out of activity protected by the
anti-SLAPP statute and, in any event, she demonstrated a
probability of success on the merits of all her causes of action. In
their cross-appeal, defendants argue the court erred in finding
Koerber was likely to prevail on her causes of action for
18
defamation and unfair business practices. As we explain, the
court’s ruling on the anti-SLAPP motion was correct.
1. Legal Principles and Standard of Review
Under the anti-SLAPP statute, a defendant may move to
strike claims “ ‘arising from any act … in furtherance of the
[defendant’s] right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a
defendant’s protected speech but instead provides a mechanism
“for weeding out, at an early stage, meritless claims arising from”
protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384
(Baral).)
Courts apply a two-prong test when evaluating an anti-
SLAPP motion. (Baral, supra, 1 Cal.5th at p. 384.) “First, the
defendant must establish that the challenged claim arises from
activity protected by section 425.16.” (Ibid.) To determine
whether the plaintiff’s causes of action arise from the defendant’s
protected activity, we look at the “pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based.” (§ 425.16, subd. (b)(2); see also Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
If the defendant establishes the plaintiff’s claims arise out
of protected activity, the plaintiff must demonstrate a probability
of prevailing on her claims. (Baral, supra, 1 Cal.5th at p. 384.) To
do so, the plaintiff must make a prima showing of facts to sustain
a favorable judgment. (Wong v. Jing (2010) 189 Cal.App.4th
1354, 1368 (Wong).) As part of her burden, the plaintiff must
present evidence that would be admissible at trial and cannot
19
rely “on the allegations in the complaint or assertions in a
declaration based on information and belief.” (Baral, at p. 384.)
For the second prong, the court conducts an analysis akin
to evaluating a summary judgment motion. (Baral, supra, 1
Cal.5th at p. 384.) “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.
[The court] 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.” (Id. at pp. 384–385.) If the
plaintiff makes a prima facie showing of a likelihood of success,
the court should deny the anti-SLAPP motion unless, as a matter
of law, the defendant’s evidence defeats the plaintiff’s claim.
(Wong, supra, 189 Cal.App.4th at p. 1368.)
We independently review an order granting a special
motion to strike under section 425.16. (Paulus v. Bob Lynch Ford,
Inc. (2006) 139 Cal.App.4th 659, 672 (Paulus).) “ ‘ “[W]e engage in
the same, two-step process as the trial court to determine if the
parties have satisfied their respective burdens. [Citations.] If the
defendant fails to show that the lawsuit arises from protected
activity, we affirm the trial court’s ruling and need not address
the merits of the case under the second prong of the statute.” ’
[Citation.]” (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291,
1298 (Abuemeira).)5
5On September 2, 2022, after the parties filed their briefs, Koerber
submitted a letter brief directing our attention to the California
Supreme Court’s recent decision in Serova v. Sony Music
Entertainment (2022) 13 Cal.5th 859. On September 6, 2022,
defendants submitted a letter brief directing our attention to the
20
2. The commercial speech exemption does not apply to
Koerber’s claims.
Koerber contends her claims against defendants are
exempt from the anti-SLAPP statute under section 425.17,
subdivision (c). According to Koerber, all her claims arise solely
out of defendants’ “commercial speech.” We disagree.
Under section 425.17, subdivision (c), commercial speech is
not protected by the anti-SLAPP statute. (Simpson Strong-Tie
Co., Inc. v. Gore (2010) 49 Cal.4th 12, 22 (Simpson).) For a claim
to fall under the commercial speech exemption, the following
requirements must be met: (1) the moving party was primarily
engaged in the business of selling goods or services; (2) the
moving party’s challenged conduct was a representation of fact
about its operations or services, intended to obtain or promote
sales of the moving party’s goods or services; and (3) the moving
party’s intended audience was an actual or potential customer. (§
425.17, subd. (c); Simpson, at p. 23.)
The party seeking to avoid application of the anti-SLAPP
statute bears the burden of proving the commercial speech
exemption applies. (Simpson, supra, 49 Cal.4th at pp. 22–25.)
Courts narrowly construe this exemption. (Id. at p. 22.)
Koerber cites to no admissible evidence that would support
a finding that defendants are “primarily engaged in the business
of selling goods or services.” (§ 425.17, subd. (c).) Rather, she
relies primarily on allegations in her complaint and statements
from her counsel’s declaration that were excluded by the trial
court to claim defendants consist of for-profit corporations who
Supreme Court’s recent decision in Geiser v. Kuhns (2022) 13 Cal.5th
1238.
21
primarily engage in the sales of goods or services “by posting
commercial online content advertising themselves and Defendant
O’Keefe.” But allegations in Koerber’s complaint are not evidence.
(See Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227,
236 [in opposing an anti-SLAPP motion, the plaintiff “cannot
simply rely on the allegations in its own pleadings” to make the
required evidentiary showing].) And, as we explained above,
Koerber has failed to show the court erred in excluding any of the
evidence she submitted in support of her opposition to
defendants’ anti-SLAPP motion. In any event, as the court found,
defendants presented evidence that Project Veritas and Action
Fund are “non-profit” media organizations that engage in
“undercover investigative journalism.”
Koerber also failed to show that O’Keefe’s statements in the
September 2017 Video constitute a representation of fact about
defendants’ operations or services, intended to obtain or promote
sales of defendants’ goods or services. (§ 425.16, subd. (c).)
O’Keefe does not reference any goods that defendants were
promoting for sale. And although O’Keefe told viewers to stay
tuned for more videos because defendants intended to release
additional material on their “American Pravda” series, O’Keefe
never solicited the sale of any goods or services related to that
series or any of the organization’s other projects.
In short, nothing in the record suggests O’Keefe’s
statements in the September 2017 Video were made to induce the
purchase of any goods or services. (Jams, Inc. v. Superior Court
(2016) 1 Cal.App.5th 984, 997 [“The issue is whether or not the
statement or conduct from which the causes of action arise is
speech used to induce a commercial transaction.”].) Thus, the
22
court properly found Koerber’s claims against defendants are not
exempt from the anti-SLAPP statute.
3. Koerber’s claims arise out of Project Veritas’s
protected activity.
Next, Koerber argues none of her claims arise out of
activity protected by the anti-SLAPP statute. According to
Koerber, O’Keefe’s statements about her in the September 2017
Video did not relate to any “public issues” and, as a result, are
not entitled to anti-SLAPP protection. We reject this argument as
well.
Among other types of conduct, section 425.16, subdivision
(e) protects “any written or oral statement or writing 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).) To qualify
for protection under section 425.16, subdivision (e)(2), the moving
party “need not separately demonstrate that the statement
concerned an issue of public significance.” (Sipple v. Foundation
For Nat. Progress (1999) 71 Cal.App.4th 226, 236–237.) Rather, it
is sufficient for the challenged statement to have been made as
part of a report or article commenting on an official proceeding,
such as a lawsuit. (Id. at pp. 237–238; see also Bernstein v.
LaBeouf (2019) 43 Cal.App.5th 15, 25 [“[j]udicial proceedings, by
definition, are matters of public interest under the anti-SLAPP
statute”].) Thus, reports of judicial proceedings, including reports
appearing on websites, “are an exercise of free speech within the
meaning of section 425.16.” (Traditional Cat Assn., Inc. v.
Gilbreath (2004) 118 Cal.App.4th 392, 397–398 (Gilbreath); see
e.g., Sipple, at pp. 236–238; Lafayette Morehouse, Inc. v.
Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863
23
[“colorful” statements made in articles about ongoing lawsuits
were protected as “ ‘writings made in connection with an issue
under consideration or review by a legislative, executive, or
judicial body’ ”].)
All of Koerber’s claims in this lawsuit arise out of
statements O’Keefe made in a video report about lawsuits filed
against defendants, including Koerber’s first lawsuit against
them. After watching the video, it is clear that O’Keefe made the
complained-of statements as part of his commentary on Koerber’s
first lawsuit, which at the time the video was released, was still
pending against defendants. Since O’Keefe’s statements in the
September 2017 Video were made as part of a report about
judicial proceedings that was published on various websites, they
qualify as protected speech under section 425.16, subdivision
(e)(2). (Gilbreath, supra, 118 Cal.App.4th at pp. 397–398.)
O’Keefe’s statements in the September 2017 Video also
qualify as protected speech under section 425.16, subdivision
(e)(3), which protects “any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest.” (§ 425.16, subd. (e)(3).) Websites
such as YouTube, Twitter, and Facebook, where the September
2017 Video was published, qualify as “public forums” under the
anti-SLAPP statute. (Jackson v. Mayweather (2017) 10
Cal.App.5th 1240, 1252 [websites accessible to the public are
“public forums” under the anti-SLAPP statute].) Additionally, by
the time the video was published, Project Veritas’s investigation
into Common Core and the various lawsuits filed against the
organization arising out of its conduct during that investigation
had been covered by various news agencies in written and
televised reports. Thus, O’Keefe’s statements commenting on the
24
lawsuits arising out of Project Veritas’s Common Core
investigation, including Koerber’s first lawsuit against the
organization, addressed a matter of public interest. (See
Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1109 [news
coverage of an issue is a factor in determining whether the issue
is in the public interest].)
Thus, Koerber’s claims against defendants fall within the
scope of the anti-SLAPP statute.
4. Koerber hasn’t demonstrated a probability of
prevailing on the merits of her claims for IIED,
negligence, and economic interference.
Koerber contends the court erred when it dismissed her
cause of action for IIED because that claim was superfluous to
Koerber’s cause of action for defamation. We disagree.
“When claims for invasion of privacy and emotional distress
are based on the same factual allegations as those of a
simultaneous libel claim, they are superfluous and must be
dismissed.” (Couch v. San Juan Unified School Dist. (1995) 33
Cal.App.4th 1491, 1504.)
Koerber’s claims for IIED and defamation are based on
identical factual allegations, and Koerber does not argue to the
contrary. That is, Koerber points to no factual allegations
supporting her IIED claim that do not also form the basis for her
defamation claim. The court, therefore, properly dismissed
Koerber’s IIED claim as redundant of her defamation claim. (See
Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at
p. 1504.)6
6Some courts have held that a superfluous cause of action for IIED
should be dismissed through a demurrer instead of through an anti-
25
In any event, Koerber hasn’t shown she was likely to
prevail on her claim for IIED. To prove IIED, a plaintiff must
establish: (1) outrageous conduct by the defendant; (2) the
defendant’s intent to cause, or reckless disregard of the
probability of causing, emotional distress; (3) the plaintiff’s
suffering of severe or extreme emotional distress; and (4) actual
and proximate causation of the emotional distress by the
defendant’s outrageous conduct. (Yau v. Allen (2014) 229
Cal.App.4th 144, 160.) To be outrageous, conduct must be “ ‘so
extreme as to exceed all bounds of that usually tolerated in a
civilized society.’ ” (Ibid.)
Koerber offers no cognizable factual or legal argument
explaining how she was likely to prevail on her claim for IIED. In
her opening brief, Koerber argues only that her “[d]eclaration is
sufficient to meet the minimal merit standard … , and the Trial
Court’s ruling must be reversed.” In her reply brief, Koerber
points to statements in her declaration where she asserts she
SLAPP motion. (See Dickinson v. Cosby (2017) 17 Cal.App.5th 655,
692.) As we noted above, defendants filed a demurrer to Koerber’s
complaint when they filed their anti-SLAPP motion. Koerber, however,
has not included a copy of that demurrer in the appellate record. We
therefore must presume defendants also raised this argument in their
demurrer and, had the court not first ruled on the anti-SLAPP motion,
it would have sustained without leave to amend the challenge to
Koerber’s IIED claim when it ruled on the demurrer. (Fernandes v.
Singh (2017) 16 Cal.App.5th 932, 935, fn. 3 [“ ‘To the extent the record
is incomplete, we construe it against [the appellant]’ ”].) In any event,
Koerber hasn’t shown, let alone argued, she was prejudiced by the
court dismissing her IIED claim through the anti-SLAPP motion as
opposed to through the demurrer. (Cal. Const., art. VI, § 13; see also §
475 [no decision shall be set side unless the appellant establishes the
alleged error was prejudicial].)
26
suffered various physical and psychological injuries because of
the September 2017 Video, while asserting in conclusory fashion
that “[t]here can be no dispute that Defendants’ defamatory
statements constitute extreme and outrageous conduct.” Because
Koerber offers no meaningful legal or factual analysis explaining
how she could prove the first and second elements of her IIED
claim—i.e., outrageous conduct and intent—she hasn’t shown she
was likely to prevail on that cause of action. (See Paulus, supra,
139 Cal.App.4th at p. 685 [appellant forfeited argument
challenging court’s second-prong finding where he offered only a
conclusory argument that he had “met his burden to show a
prima [facie] case”].)
As to her causes of action for negligence and economic
interference, Koerber also hasn’t shown she was likely to prevail
on the merits of those claims.
To prevail on a claim for negligence, a plaintiff must prove
that (1) the defendant owed her a duty of care, (2) the breach of
which (3) proximately caused (4) her injury. (Quelimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57.) Koerber
claims she satisfied her burden to show a likelihood of prevailing
on her negligence claim because her “evidence establishes
Defendants’ defamatory statements breached their duty of due
care, which breach caused Koerber significant damages. … This
is more than sufficient to establish a prima facie case of
negligence, and a probability of prevailing on this claim.” (Italics
omitted.)
Koerber fails to identify what “evidence” establishes the
elements of breach, proximate cause, and injury, nor does she
develop any meaningful factual or legal analysis explaining how
she was likely to satisfy those elements. Consequently, Koerber
27
has forfeited her challenge to the court’s finding that she wasn’t
likely to prevail on her claim for negligence. (Paulus, supra, 139
Cal.App.4th at p. 685.)
Koerber’s argument addressing her economic interference
cause of action doesn’t fare any better. To prevail on a claim for
economic interference, a plaintiff must prove: (1) an economic
relationship between the plaintiff and a third party that offers a
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 intended to disrupt the relationship; (4)
actual disruption of the relationship; and (5) economic harm to
the plaintiff proximately caused by the defendant’s acts. (Korea
Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134,
1153.)
Koerber doesn’t offer any legal argument or factual
analysis explaining how she was likely to satisfy the second and
third elements of her cause of action for economic interference.
That is, Koerber doesn’t explain how she could prove that
defendants knew about Koerber’s relationship with any
prospective employers or that the publication of the September
2017 Video, including any of the challenged statements from that
video, were intended to disrupt Koerber’s relationship with a
prospective employer. Koerber, therefore, hasn’t shown the court
erred when it found she wasn’t likely to prevail on her claim for
economic interference. (Paulus, supra, 139 Cal.App.4th at p. 685.)
28
5. Koerber demonstrated a probability of prevailing on
the merits of her causes of action for defamation and
unfair business practices (Defendants’ Cross-Appeal).
In their cross-appeal, defendants contend the court erred in
finding Koerber met her second-prong burden with respect to her
claims for defamation and unfair business practices. We disagree.
5.1. Defamation
Defamation involves (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to
injure or cause special damage. (Wong, supra, 189 Cal.App.4th at
p. 1369.) A statement is libelous if it is a false and unprivileged
publication that exposes the plaintiff “to hatred, contempt,
ridicule, or obloquy,” or causes her “to be shunned or avoided,” or
jeopardizes her employment. (Civ. Code, § 45; McGarry v.
University of San Diego (2007) 154 Cal.App.4th 97, 112
(McGarry).)
The primary question for a defamation claim is whether the
published statement declares or implies a provably false
assertion of fact. (Wong, supra, 189 Cal.App.4th at p. 1370.)
Because the actionable statement in a defamation claim must
include a falsehood, courts distinguish between statements of fact
and statements of opinion. (Ibid.) Statements of fact may be
actionable, while statements of opinion generally are not. (Ibid.)
But statements of opinion aren’t always immune from liability. If
an opinion implies a false assertion of fact, the opinion may be
actionable defamation. (Ibid.) Thus, courts look to whether a
reasonable fact finder could conclude the challenged statement
declares or implies a provably false assertion of fact. (Ibid.)
Courts look to the totality of the circumstances to
determine whether a statement communicates or implies a
29
provably false statement of fact. (McGarry, supra, 154
Cal.App.4th at p. 113.) Courts must examine the language used
in the statement and the context in which the statement was
made. (Ibid.) When the complained-of speech concerns a matter of
public interest, “a private-figure plaintiff must prove the falsity of
the offensive speech.” (ZL Technologies, Inc. v. Does 1–7 (2017) 13
Cal.App.5th 603, 631 (ZL Technologies).)
Koerber’s defamation cause of action arises out of O’Keefe’s
statements in the September 2017 Video implying that Koerber
was an “official” in the book publishing industry who said she
does not “care about kids[;] it’s all about money” during an
investigation into the Common Core curriculum. As we explain,
Koerber has shown a probability of success on her defamation
cause of action.
As a preliminary matter, defendants contend that O’Keefe’s
statement that Koerber was an “official” cannot support a
defamation claim because, even assuming the statement was
false, it is not defamatory in nature. Thus, accordingly to
defendants, allegations referring to that statement should be
stricken from Koerber’s pleading. To be sure, we agree there is
generally nothing defamatory about falsely referring to a person
as an “official.” Nevertheless, the court wasn’t required to strike
Koerber’s allegations that O’Keefe falsely referred to her as an
“official” because those allegations provide context for her
allegations that she was also falsely accused by O’Keefe of saying
that she does not “care about kids[;] it’s all about money.” (See
Baral, supra, 1 Cal.5th at p. 394 [“[a]llegations of protected
activity that merely provide context, without supporting a claim
for recovery, cannot be stricken under the anti-SLAPP statute”];
see also Wong, supra, 189 Cal.App.4th at p. 1370 [context is
30
relevant to determining whether a challenged statement supports
a claim for defamation].)
As for O’Keefe’s statement implying Koerber was the
person who said, “we don’t care about kids[;] it’s all about
money,” it supports Koerber’s defamation claim. O’Keefe’s
statement was factual in nature—i.e., it attributed a quote to
Koerber—and it was used to describe to viewers one of the topics
of the September 2017 Video—i.e., Koerber’s first lawsuit against
defendants. Nothing about the context surrounding the
statement suggests it was offered as O’Keefe’s subjective opinion
about Koerber or her prior lawsuit.
The surrounding context also supports an inference that
O’Keefe intended viewers to believe Koerber was the person who
said, “we don’t care about kids[;] it’s all about money.” As O’Keefe
makes that statement, a photograph of the cover page of a motion
filed in Koerber’s first lawsuit against defendants appears on the
right side of the screen while O’Keefe holds a copy of Koerber’s
complaint from that lawsuit. Immediately thereafter, while a
zoomed-in photograph of Koerber’s complaint with a sticky note
containing her name is the only thing visible on screen, O’Keefe
says, “one of the people in the book publishing industry has sued
us. I don’t know why she’s suing us. She should sue herself; she’s
the one who said what she said, and she didn’t deny it.” Notably,
O’Keefe never attributes the statement “we don’t care about
kids[;] it’s all about money” to someone other than Koerber, nor
does he tell the viewers that Koerber did not make that
statement. The circumstances of the video, therefore, support an
inference that O’Keefe intended his viewers to believe that
Koerber was the person who said, “we don’t care about kids[;] its
all about money.” (Wong, supra, 189 Cal.App.4th at p. 1372 [a
31
defendant is “ ‘liable for what is insinuated, as well as for what is
stated explicitly’ ”]; see also Kapellas v. Kofman (1969) 1 Cal.3d
20, 33 [“false inferences or implications raised by the
arrangement and phrasing of apparently non-libelous statements
can be as injurious as explicit epithets”].)
Koerber also met her burden to show the statement was
false. Koerber testified that she never said, “we don’t care about
kids[;] it’s all about money.” And, in support of their anti-SLAPP
motion, defendants submitted a copy of the January 2016 Video,
in which two people—neither of whom is Koerber—make similar
statements. One interviewee states: “I hate kids. I’m in it to sell
books, don’t even kid yourself for a heartbeat.” The other
interviewee states: “There’s always money in it. It’s never about
the kids.” Like the September 2017 Video, O’Keefe appears in
and narrates the January 2016 Video. The evidence, therefore,
supports a finding that O’Keefe knew Koerber didn’t say “we
don’t care about kids[;] it’s all about money” (or a statement to
the same effect) or that he, at the very least, acted with reckless
disregard for the truth when he attributed that statement to
Koerber. (See ZL Technologies, supra, 13 Cal.App.5th at p. 631
[actual malice exists where defendant knew the complained-of
speech was false or acted with reckless disregard of whether it
was false].)
Moreover, implying Koerber stated that she cares only
about money, and not kids, is defamatory. That is, implying that
someone who worked in the education industry doesn’t care about
kids and cares only about money is likely to, at the very least,
harm that person’s professional reputation. (Balla v. Hall (2021)
59 Cal.App.5th 652, 678 [a statement is defamatory if it tends to
32
injure the plaintiff’s reputation]; see also Civ. Code, § 46, subd.
(3).)
Koerber also presented evidence that she was injured by
O’Keefe’s statements in the September 2017 Video. In her
declaration, Koerber testified that because of that video, she “lost
contracts, income, benefits, 401k contributions, health insurance,
car, phone, email, vacation and bonuses, and [has] become
extremely emotionally distressed and physically ill.”
Finally, we reject defendants’ contention that O’Keefe’s
statements in the September 2017 Video are immune from
liability under the litigation privilege. Under Civil Code section
47, subdivision (b), a privileged statement is one that is (1) made
in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical relation to
the action. (See Abuemeira, supra, 246 Cal.App.4th at p. 1299.)
The litigation privilege is designed to give litigants and witnesses
the “utmost freedom of access to the courts without fear of
litigation reprisal.” (Ibid.)
The litigation privilege does not, however, protect
statements made to persons who are not participants in the
underlying litigation, such as “publications to the general public
through the press.” (Abuemeira, supra, 246 Cal.App.4th at p.
1299.) As other courts have recognized, litigating through the
press does not fall within the spirit of the litigation privilege but
instead “serves no purpose other than to provide immunity to
those who would inflict damage upon the judiciary.” (Ibid.; see
also GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th
141, 153.)
33
The September 2017 Video was not produced for any
judicial or quasi-judicial proceeding. (See Civ. Code, § 47, subd.
(b).) Instead, the video was published on Action Fund’s website
and other websites and social media platforms where it could be
viewed by the general public. (Abuemeira, supra, 246 Cal.App.4th
at p. 1299 [defendant’s “communications to the general public
through the Internet and the media are not protected by the
litigation privilege”].) Defendants present no evidence that the
video’s intended audience was in any way connected with
Koerber’s first lawsuit or that the video was otherwise intended
to achieve any legitimate objective in that litigation. (Id. at pp.
1299–1300 [anti-SLAPP defendants carried burden to show
litigation privilege barred plaintiff’s lawsuit because the
challenged statements were directed at interested persons or
designed to achieve objectives of litigation].)7
For these reasons, Koerber met her burden to demonstrate
a probability of prevailing on her defamation cause of action.
5.2. Unfair Business Practices
Business and Professions Code section 17200 (Section
17200) prohibits “any unlawful, unfair or fraudulent business act
or practice.” A prevailing plaintiff under Section 17200 is
7Defendants also claim O’Keefe’s statements in the September 2017
Video are protected by the “fair and true” reporting privilege. (See Civ.
Code, § 47, subd. (d).) Defendants have forfeited this contention
because they didn’t assert the fair and true reporting privilege in their
anti-SLAPP motion or reply papers. (Kern County Dept. of Child
Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038 [“It is
axiomatic that arguments not raised in the trial court are forfeited on
appeal.”].)
34
generally limited to injunctive relief and restitution. (Gray v.
Dignity Health (2021) 70 Cal.App.5th 225, 236.)
A business act is unlawful under Section 17200 if it violates
any other law. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494,
1505.) Thus, “[b]y defining unfair competition to include any
‘unlawful … business act or practice’ [citation], [Section 17200]
permits violations of other laws to be treated as unfair
competition that is independently actionable.” (Kasky v. Nike,
Inc. (2002) 27 Cal.4th 939, 949 (Kasky).) In other words, virtually
any state or federal law can serve as a predicate for an action
under Section 17200. (Hale v. Sharp Healthcare (2010) 183
Cal.App.4th 1373, 1383; see also Klein v. Chevron U.S.A.,
Inc. (2012) 202 Cal.App.4th 1342,1380 [a business practice is
“fraudulent” within the meaning of Section 17200 if it is likely to
deceive the public or is based on representations to the public
which are untrue].)
A private plaintiff can bring a claim for unfair business
practices under Section 17200. (Kasky, supra, 27 Cal.4th at p.
949.) To have standing, a private plaintiff must show she suffered
“injury in fact and has lost money or property as a result of the
unfair” business practice. (Ibid.)
As we just explained, Koerber demonstrated a likelihood of
success on her defamation claim against defendants, including
showing that the September 2017 Video caused her to suffer
economic loss. Additionally, Verney, Project Veritas’s and Action
Fund’s executive director, testified that Action Fund released the
September 2017 Video through its president, O’Keefe. Nothing in
the record suggests that the publication and release of the
September 2017 Video was not a business act or practice of
Project Veritas, Action Fund, or O’Keefe. And although
35
defendants contend on appeal that the court “failed to consider in
the first instance whether the allegedly-defamatory statement
made by O’Keefe constituted an actual business practice of each”
defendant, that contention is conclusory and not developed in
their briefing. Koerber, therefore, has shown a likelihood of
prevailing on her claim for unfair business practices under
Section 17200. (See Becerra v. McClatchy Co. (2021) 69
Cal.App.5th 913, 951 [where an unfair business practices claim
“is derivative of an underlying violation of law, it must stand or
fall with the underlying claim”].)8
Attorney Fees and Costs
Finally, Koerber challenges the court’s order awarding
defendants attorney fees and costs. As we explain, Koerber’s
arguments challenging the fees and costs award lack merit.
1. Relevant Background
In July 2019, defendants filed a motion for $44,422 in
attorney fees and costs (fees motion), arguing they were
prevailing parties under the anti-SLAPP statute. Defendants
claimed they incurred $34,827 in attorney fees for work
8 We decline to address defendants’ contention that the court failed to
strike allegations of protected activity for which Koerber did not
demonstrate a probability of success. Defendants do not identify any
individual allegation they claim the court should have stricken, nor do
they offer meaningful factual or legal analysis explaining why the
court should have stricken any individual allegation. (See Baral,
supra, 1 Cal.5th at p. 396 [the defendant bears the burden “of
identifying all allegations of protected activity, and the claims for relief
supported by them”]; see also Keyes, supra, 189 Cal.App.4th at pp.
655–656 [party claiming error on appeal forfeits any points not
supported by cognizable legal argument or factual analysis].)
36
associated with the anti-SLAPP motion, and they incurred, or
anticipated to incur, $8,980 in attorney fees for work associated
with the fees motion. Defendants also sought $615 in incurred
and anticipated costs.
In support of their fees motion, defendants submitted
billing invoices and declarations executed by their counsel, Rubin
and Sanguinetti, detailing the time the attorneys and one
paralegal spent working on defendants’ anti-SLAPP and fees
motions. The $34,827 in attorney fees related to litigating the
anti-SLAPP motion was based on the following calculations: (1)
Rubin billed 36.7 hours at a rate of $250 per hour, for a total of
$9,175; (2) Sanguinetti billed 127.3 hours at a rate of $200 per
hour, for a total of $25,460; and (3) the paralegal billed 2.4 hours
at a rate of $80 per hour, for a total of $192. The $8,980 in
attorney fees related to litigating the fees motion was calculated
as follows: (1) Rubin billed 3 hours, and expected to bill an
additional 7 hours, all at a rate of $250 per hour, for a total of
$2,500; (2) Sanguinetti billed 22.4 hours, and expected to bill an
additional 10 hours, all at a rate of $200 per hour, for a total of
$6,480. According to Rubin, defendants spent $555 in filing fees
and other costs necessary to litigate their anti-SLAPP motion and
expected to incur an additional $60 in filing fees for their fees
motion.
Koerber opposed the fees motion. Among other things, she
argued Hartsock wasn’t entitled to recover attorney fees or costs
because defendants presented no evidence that Hartsock was
personally billed for any services proffered by defense counsel.
Koerber also claimed that Project Veritas, Action Fund, and
O’Keefe weren’t prevailing parties under section 425.16,
subdivision (c) or, at the very least, didn’t obtain any practical
37
benefit from the court’s ruling on their anti-SLAPP motion
because the court denied their motion as to her causes of action
for defamation and unfair business practices. Finally, Koerber
argued the court should deny defendants’ fees motion in its
entirety because the amount of fees and costs requested by
defendants was excessive and unreasonably inflated.
The court granted defendants’ motion, awarding them
$40,942 in attorney fees and costs. The court found Hartsock was
entitled to recover fees and costs even if those expenses were paid
by a third party. The court also found Project Veritas, Action
Fund, and O’Keefe were prevailing parties under section 425.16,
subdivision (c) because the court’s ruling on defendants’ anti-
SLAPP motion narrowed the scope of Koerber’s lawsuit and her
potential entitlement to damages.
As to the amount of defendants’ fees request, the court
found it was reasonable with respect to counsel’s work litigating
the anti-SLAPP motion. But the court reduced the amount of
attorney fees that defendants requested with respect to the fees
motion, finding the amount of hours counsel billed, and expected
to bill, for that motion was excessive. Specifically, the court
awarded defendants fees for only 10 of the 22.4 hours counsel
actually billed, and 5 of the 10 hours counsel expected to bill, for
work related to litigating the fees motion.
2. Applicable Law and Standard of Review
A defendant who prevails on an anti-SLAPP motion is
entitled to an award of attorney fees and costs “incurred in
connection with” the anti-SLAPP motion. (569 E. County
Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6
Cal.App.5th 426, 432 (Backcountry); see also § 425.16, subd.
(c)(1).) Thus, a prevailing defendant may recover all fees incurred
38
in litigating the anti-SLAPP motion, plus fees incurred in
responding to an appeal from an order granting an anti-SLAPP
motion or in litigating the fee award itself. (Wanland v. Law
Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th
15, 21.)
The fee award should not, however, compensate the
defendant for fees unrelated to the anti-SLAPP motion, such as
“ ‘attacking service of process, preparing and revising an answer
to the complaint, [or] summary judgment research.’ [Citation.]”
(Backcountry, supra, 6 Cal.App.5th at p. 433.) “In short, the
award of fees is designed to ‘ “reimburs[e] the prevailing
defendant for expenses incurred in extracting herself from a
baseless lawsuit” ’ [citation] rather than to reimburse the
defendant for all expenses incurred in the baseless lawsuit.”
(Ibid.)
In determining the amount of the fees to award, the court
should utilize the “lodestar adjustment method.” (Nichols v. City
of Taft (2007) 155 Cal.App.4th 1233, 1239–1240 (Nichols).) To
calculate the “lodestar” figure, the court must determine the
number of hours reasonably spent on matters related to the anti-
SLAPP motion and multiply that number by the prevailing
hourly rate for other private attorneys in the same community
performing similar, noncontingent litigation. (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1133.)
Because the trial court is most familiar with the litigation
and in the best position to determine the value of the legal
services rendered in the case, we will not disturb the court’s
decision to award attorney fees unless we are convinced that
decision is clearly wrong—i.e., an abuse of discretion. (Nichols,
supra, 155 Cal.App.4th at p. 1239.) “The appellant challenging
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the award ‘bear[s] the burden of affirmatively establishing that
the trial court abused its discretion.’ [Citation.] As with most trial
court orders, we ‘ “presume the trial court’s attorney fees award
is correct.” ’ [Citation.]” (In re Marriage of Minkin (2017) 11
Cal.App.5th 939, 954 (Minkin).)
3. Hartsock is entitled to recover attorney fees and costs
as a prevailing party.
As a preliminary matter, Koerber argues the court erred
when it awarded Hartsock attorney fees and costs. Although
Koerber doesn’t dispute Hartsock was a prevailing party under
section 425.16, subdivision (c), she claims he can’t recover any
attorney fees or costs because Project Veritas was the only entity
billed for defense counsel’s services in litigating the anti-SLAPP
and fees motions. This argument is meritless.
Under section 425.16, subdivision (c), a prevailing
defendant is entitled to recover attorney fees and costs even if
those expenses are paid by a third party. (Macias v. Hartwell
(1997) 55 Cal.App.4th 669, 675–676.) As one court has explained,
“[w]e do not presume the Legislature intended to create a
disparity between defendants who advance their own attorney
fees and those whose counsel look to an outside source for
payment. In each case, the fees have accrued and can be
recovered.” (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 285
(Rosenaur).) Koerber cites no authority to the contrary.
Because Hartsock was a prevailing party under section
425.16, subdivision (c), the court properly awarded him attorney
fees and costs. (Rosenaur, supra, 88 Cal.App.4th at p. 287.)
40
4. Project Veritas, Action Fund, and O’Keefe are entitled
to recover attorney fees and costs as prevailing parties.
Koerber next contends Project Veritas, Action Fund, and
O’Keefe are not entitled to an award of attorney fees and costs
because they obtained no practical benefit from the court’s order
granting in part and denying in part their anti-SLAPP motion.
We disagree.
Under section 425.16, subdivision (c), a defendant who
partially prevails on an anti-SLAPP motion is entitled to recover
attorney fees and costs “unless the results of the motion were so
insignificant that the party did not achieve any practical benefit
from bringing the motion.” (Mann v. Quality Old Time Service,
Inc. (2006) 139 Cal.App.4th 328, 338 (Mann).) The trial court has
broad discretion to determine whether a defendant is a
“prevailing party” under section 425.16. (Ibid.)
In deciding how much to award a partially prevailing
defendant, the court should consider various factors, including
“the extent to which the defendant’s litigation posture was
advanced by the motion, whether the same factual allegations
remain to be litigated, whether discovery and motion practice
have been narrowed, and the extent to which future litigation
expenses and strategy were impacted by the motion. The fees
awarded to a defendant who was only partially successful on an
anti-SLAPP motion should be commensurate with the extent to
which the motion changed the nature and character of the
lawsuit in a practical way.” (Mann, supra, 139 Cal.App.4th at p.
345.)
The court did not abuse its discretion in finding Project
Veritas, Action Fund, and O’Keefe were entitled to recover
attorney fees and costs as partially prevailing defendants. While
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some factual issues that were relevant to the causes of action
that the court dismissed remain the same after the court ruled on
defendants’ anti-SLAPP motion, such as whether O’Keefe’s
allegedly defamatory statements in the September 2017 Video
injured Koerber, some factual issues have been eliminated.
Consequently, the scope of the parties’ future discovery is
narrower than it would have been had the court not dismissed
Koerber’s economic interference claim.
To summarize, Project Veritas, Action Fund, and O’Keefe
obtained a practical benefit by bringing their anti-SLAPP motion
and, as a result, are entitled to recover attorney fees and costs
under section 425.16, subdivision (c).9 (Mann, supra, 139
Cal.App.4th at p. 345.)
5. The fees and costs award was reasonable.
Koerber claims the court erred when it allowed defendants
to recover attorney fees for work defense counsel performed
litigating the anti-SLAPP and fees motions that Project Veritas
filed in Koerber’s first lawsuit. According to Koerber, defense
counsel “simply cut and pasted from [Project Veritas’s] prior
fee[s] motion” and spent too much time preparing defendants’
anti-SLAPP motion when counsel prepared a similar motion in
Koerber’s first lawsuit. This argument lacks merit.
9Koerber doesn’t contend that even if Project Veritas, Action Fund,
and O’Keefe were entitled to an award of attorney fees and costs, the
court should have reduced the amount of their award using the factors
discussed above to reflect they were unsuccessful on two of the
challenged causes of action asserted in Koerber’s complaint. (See
Mann, supra, 139 Cal.App.4th at p. 345.)
42
As the court observed, Koerber never produced copies of
Project Veritas’s anti-SLAPP and fees motions from her first
lawsuit that she claims were substantially similar to the motions
that defendants filed in this lawsuit. Instead, Koerber provided
only her counsel’s testimony claiming that defense counsel’s
invoices in this case billed defendants for work that was
performed as part of Koerber’s first lawsuit. The court was free,
however, to reject Koerber’s counsel’s testimony, especially when
that testimony wasn’t corroborated by any other evidence. We
will not disturb the court’s credibility determinations on appeal.
(Estate of Young (2008) 160 Cal.App.4th 62, 76 [“We may not
reweigh the evidence and are bound by the trial court’s credibility
determinations”].)
Koerber also argues defendants improperly requested
attorney fees for time defense counsel spent analyzing and
reviewing Koerber’s complaint because counsel would have
needed to review that document regardless of whether
defendants filed their anti-SLAPP motion. Defendants’ billing
invoices show, however, that defense counsel reviewed Koerber’s
complaint for the specific purpose of preparing defendants’ anti-
SLAPP motion. Additionally, Rubin testified that he reviewed all
the invoice entries and confirmed that defendants were only
seeking to recover fees for work associated with the anti-SLAPP
and fees motions. Koerber, on the other hand, points to no
evidence showing counsel’s review of the complaint was unrelated
to either motion, nor does she cite any authority prohibiting the
recovery of fees for time spent reviewing a document that is
relevant to matters both related and unrelated to an anti-SLAPP
motion. Consequently, Koerber hasn’t shown the court abused its
discretion in awarding defendants attorney fees for time defense
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counsel spent reviewing Koerber’s complaint. (Minkin, supra, 11
Cal.App.5th at p. 954 [an appellant challenging a fees award
must affirmatively show the court abused its discretion in
calculating the award].)
Likewise, Koerber hasn’t shown the court erred in
awarding defendants attorney fees for 2.8 hours that defense
counsel spent communicating with various individuals. According
to Koerber, defense counsel improperly redacted information that
describes the nature of the work counsel discussed during those
communications. Koerber, however, hasn’t identified any specific
billing entry from which defense counsel improperly redacted
information. As we explained above, it is not our job to comb
through the record to find evidence that substantiates Koerber’s
claims of error. Koerber, therefore, hasn’t met her burden to show
the court erred in awarding defendants attorney fees for time
defense counsel spent communicating with other people. (Minkin,
supra, 11 Cal.App.5th at p. 954.)
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DISPOSITION
The orders granting in part and denying in part
defendants’ anti-SLAPP motion and awarding defendants
attorney fees and costs are affirmed. The parties shall bear their
own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
RICHARDSON (ANNE K.), J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
45