Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Ct. No. GIC867033 Ronald S. Prager, Judge.
McCONNELL, P. J.
The issue in this case is whether the trial court erred by granting the cross-defendants' anti-SLAPP (strategic lawsuit against public participation) motion and dismissing the cross-complaint under Code of Civil Procedure section 425.16. As the cross-complaint arose from protected activity and the cross-complainant showed no probability of prevailing on the merits, we affirm the order. Additionally, we grant the cross-defendants' motion for sanctions for a frivolous appeal.
All statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Jones violates basic principles of appellate practice by not citing the record in his statement of the case, which is actually argument based on supposed facts. "The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) Accordingly, where a party provides a brief "without argument, citation of authority or record references establishing that the points were made below," we may "treat the points as waived, or meritless, and pass them without further consideration." (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.) We nonetheless consider Jones's contentions.
In September 2006 Patricia Opel filed a first amended complaint (hereafter complaint or Opel case) against Byung Sun Yoo, D.D.S., and his corporation for dental malpractice. The complaint also named Cavitat Medical Technologies, Inc. (Cavitat) and Robert Jones, its president and chief executive officer, in a cause of action for intentional misrepresentation arising from their sale of a "Cavitat device" to Yoo, which he used to diagnose Opel's dental problems.
Michael Opel joined in the first amended complaint and sought damages for loss of consortium.
Cavitat is not involved in this appeal because it is involved in a bankruptcy proceeding.
The complaint alleged that at educational conferences and through a Web site, Jones defrauded the public by representing that the Cavitat device "imaged diseases of the alveolar bones, including NICO [neuralgia-inducing cavitational osteonecrosis], and was capable of assessing vascular flow"; it "was a reliable and effective diagnostic tool"; it "was the subject of Institutional Review Board supervised studies, the results of which were published in peer-reviewed journals," and the Federal Drug Administration had approved the device and its effectiveness "had been sufficiently demonstrated in the evidence-based dental community."
In December 2006 Jones filed a cross-complaint against Stephen J. Barrett, M.D., National Council Against Health Fraud, Inc. (NCAHF), and its "principal shareholder," Robert S. Baratz, M.D., for violation of California's unfair competition law (UCL; Bus. & Prof. Code, § 17200), intentional and negligent interference with prospective economic advantage, negligence and conspiracy. The gist of the cross-complaint was that the cross-defendant doctors acted as expert witnesses "on the subject of the alleged dangers in the practice of alternative medicine, including dentistry and . . . dentistry equipment," and through NCAHF made false claims about Jones's products and services.
The cross-defendants brought a special motion to strike under the anti-SLAPP statute, arguing the cross-complaint was based on expressions of public interest made in a public forum. Dr. Barrett submitted a declaration that stated he is a retired psychiatrist, medical editor and consultant who operates several Web sites, such as quackwatch.org, dentalwatch.org, and casewatch.org, "that warn about ma[n]y types of dubious health claims, products and frauds." The declaration also stated Dr. Baratz "is a member of the Quackwatch Medical Advisory Board and has contributed material to the above-mentioned sites, including the text of his 2001 testimony before the United States Senate Special Committee on Aging. He also co-hosts casewatch.org and dentalwatch.org."
The declaration is unsigned in the appellants' appendix, but no party objects.
Further, Dr. Barrett's declaration stated, "I post copies of many health-related lawsuits on the Casewatch Web site. I rarely have any connection with these cases other than reading about them in the public domain and posting them for general consumption. I have no personal connection to the Opel case. The Opel case is not posted on Casewatch." The declaration stated Dr. Barrett never advertised his services as an expert witness in any forum.
The declaration also stated that "[v]arious articles and documents on my sites do mention the Cavitat device, the practices associated with its use, and the lawsuit that . . . Cavitat . . . filed against Aetna, Inc., a medical insurer that denied dental reimbursement claims for procedures involving the device. [¶] . . . The Cavitat lawsuit was filed against Aetna to retaliate for its claims denial. One portion of the suit alleged that Dr. Baratz and I were part of a 'criminal enterprise' under RICO [Racketeer Influenced and Corrupt Organizations Act]. However, after depositions, the Court found no relevant facts and dismissed the bogus RICO charge." It further stated the "Casewatch site also includes documents showing that Cavitat intended to expand the Aetna suit to include state dental boards that investigated dentists who used the Cavitat machine."
On April 2, 2007, the court entered an order granting the anti-SLAPP motion. On June 4, the court entered an order awarding the cross-defendants $3,998 in attorney fees and $80 in other costs.
The cross-defendants also demurred to the cross-complaint on the grounds it was vague, did not arise from the same occurrence as the Opel case and alleged no actionable harm. The court's ruling on the anti-SLAPP motion mooted the demurrer.
DISCUSSION
I
Anti-SLAPP Statute
In 1992 the Legislature enacted section 426.16, known as the anti-SLAPP statute, to allow a court to dismiss certain types of unmeritorious claims at an early stage in the litigation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1243 (Huntingdon).) Section 425.16 provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
"In deciding an anti-SLAPP motion, the trial court must 'engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' " (Huntingdon, supra, 129 Cal.App.4th at p. 1244.)
A defendant may satisfy the burden of showing the act underlying the plaintiff's action fits one of the categories enumerated in section 425.16, subdivision (e), which includes ". . . (3) 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; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
" '[T]o establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must " 'state[] and substantiate[] a legally sufficient claim.' " [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' [Citation.] The 'plaintiff "cannot simply rely on the allegations in the complaint." ' " (Huntingdon, supra, 129 Cal.App.4th at pp. 1244-1245.)
We review the court's ruling on a special motion under section 425.16 de novo. (Huntingdon, supra, 129 Cal.App.4th at p. 1245.)
II
Cross-Complaint Arises from Protected Speech
Jones cursorily argues the court erred by granting the anti-SLAPP motion because the cross-complaint "did not allege at any time that [cross-defendants] had made any statements, writings or other protected expressions which might justify a 'SLAPP' motion." Jones claims the cross-defendants did not cite any "example of protected speech, writings or any other expressions that they claim [Jones is] trying to repress. They did not, because [Jones] did not and is not trying to silence [cross-defendants]." (Bold face omitted.)
The cross-complaint is difficult to decipher. Among its allegations is that Dr.'s Barrett and Baratz "disseminated claims in advertisements through [NCAHF] and other entities, in which they discredited, denigrated and misrepresented the reputations and performance of services and products by Cross-Complainants for purposes of their business and financial gain when they knew . . . such claims were false and misleading." It also alleges the doctors "conspired . . . to . . . design and carry out a business plan and scheme to further their business and commercial financial gain of operating and promoting an expert witness consulting firm by using [NCAHF] and other entities to falsely advertise their purported expertise and skill on the subject of the alleged dangers in the practice of alternative medicine, including dentistry and . . . dentistry equipment."
In support of the anti-SLAPP motion, Dr. Barrett established that he and Dr. Baratz made the statements Jones was complaining of on Web sites. In opposition to the motion, Jones did not produce any evidence to show the cross-defendants' supposedly wrongful conduct was unrelated to the Web sites. Jones filed a declaration in opposition to the anti-SLAPP motion that stated Drs. Barrett and Baratz made false claims about him, but it did not state the claims were made somewhere other than in Web sites devoted to health issues.
Jones's attorney, Carlos Negrete, also filed a declaration. The declaration stated Dr. Barrett has sued "more than 40 people across the country" and of the cases that went to trial, "I represented the defendants." The declaration also stated Drs. Barrett and Baratz have "engaged in a massive campaign to recruit former clients of alternative therapists or advocates to commence litigation against them in which [they] act as 'expert' witnesses and receive 'expert' witness fees." To the extent any of the information was competent evidence, it shed no light on the supposedly false advertisements on which the cross-complaint here is based.
Jones cannot rely on the vagueness of his cross-complaint to avoid an adverse anti-SLAPP ruling. In his appellate briefs, Jones gives no hint at what conduct the cross-complaint was based on, if not on statements made in Web sites devoted to health care issues.
"The 'public interest' component of section 425.16, subdivision (e)(3) and (4) is met when 'the statement or activity precipitating the claim involved a topic of widespread public interest,' and 'the statement . . . in some manner itself contribute[s] to the public debate.' [Citation.] 'Commenting on a matter of public concern is a classic form of speech that lies at the heart of the First Amendment.' " (Huntingdon, supra, 129 Cal.App.4th at p. 1246.) "The public interest requirement of section 425.16, subdivision (e)(3) 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.) The quality of medical care is an area of widespread public concern and controversy, and comments on those subjects contribute to the public debate. (Ibid.) Further, it is established that Internet Web sites are public forums under the anti-SLAPP statute. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; Huntingdon, supra, 129 Cal.App.4th at p. 1247; Kronemyer v. Internet Movie Database, Inc. (2007) 150 Cal.App.4th 941, 950.)
The court properly found the cross-complaint arises from protected activity within the meaning of section 425.16. Further, Jones made no attempt to show his case was meritorious, and on appeal he ignores his burden of showing a probability of prevailing on the merits. Jones could not make such a showing, because the cross-complaint does not meet the criteria for a permissive cross-complaint and thus could not be maintained. The cross-defendants are strangers to the Opel action and the cross-complaint did not arise from the same transaction or occurrence as the Opel action. (§ 428.10, subds. (a) & (b).) Accordingly, we affirm the ruling on the anti-SLAPP motion.
III
Section 425.17Additionally, Jones contends the court erred by finding section 425.17, subdivision (c) inapplicable. "As the anti-SLAPP statute was put into practice, . . . questions arose about whether advertising statements concerning commercial products could qualify as 'free speech in connection with a public issue.' [Citations.] To correct what it perceived as the 'disturbing abuse of Section 425.16,' the Legislature enacted section 425.17, effective January 1[, 2004]. The new statute makes the anti-SLAPP statute inapplicable to 'any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services . . . arising from any statement or conduct' if the statement or conduct (1) consists of a representation of fact about that person's or a competitor's business operation, goods, or services; (2) is made or engaged in to obtain commercial transactions in the person's goods or services, and (3) is directed to an actual or potential customer." (Metcalf v. U-Haul International, Inc. (2004) 118 Cal.App.4th 1261, 1265.)
Drs. Barrett and Baratz, however, are not Jones's competitors and they did not disparage the Cavitat device to promote sales of a competing device. Jones implies the Web sites were covers to create employment opportunities for the doctors as expert witnesses, but he adduced no evidence of that. We conclude section 425.17 is inapplicable.
IV
Attorney Fees and Costs
Jones purports to appeal the order granting the cross-defendants attorney fees and costs. We may not consider the issue, however, because he filed only one notice of appeal, on May 29, 2007, of the order granting the anti-SLAPP motion. The order on the fees and costs was issued June 4, 2007, and Jones did not appeal it. Where, as here, the final judgment or order "is silent as to attorney fees and costs (determines neither entitlement noramount), the failure to separately appeal a postjudgment order awarding costs and fees is a jurisdictional bar to appellate review of the fees and costs award." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 2:156.3, p. 2-74.)
V
Motion for Sanctions
The cross-defendants seek as sanctions against Jones the amount of attorney fees and costs they incurred in this appeal. Section 907 provides that "[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (Cal. Rules of Court, rule 8.276.)
The cross-defendants' motion does not state they seek sanctions from Jones's attorney.
In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650 (Flaherty), the court "set forth two alternative tests for determining a frivolous appeal. The first test is subjective: Was the appeal prosecuted solely for an improper motive, such as to harass the respondent or delay the effect of an adverse judgment? [Citation.] . . . [¶] The second strand of Flaherty is objective: Was the appeal so indisputably without merit that any reasonable attorney would agree it was totally devoid of merit?" (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.4th 1766, 1773.) "The two standards are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." (Flaherty, supra, at p. 649.)
"Penalties for prosecuting frivolous appeals should not be imposed without giving fair warning, affording the [appellant] an opportunity to respond to the charge, and holding a hearing." (Flaherty, supra, 31 Cal.3d at p. 654.) Before oral argument, we gave Jones written notice we would consider the cross-defendants' motion for sanctions when the matter was heard on the merits. (Cal. Rules of Court, rule 8.276(c) & (d).) Jones filed a written response.
Sanctions should be imposed sparingly "so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal." (Flaherty, supra, 31 Cal.3d at p. 650.) We conclude, however, that they are in order here because at the trial court Jones made no attempt to show any likelihood of prevailing on the merits of his claims, and on appeal he does not even address his burden of doing so. Further, as a matter of law he had no possible chance of success as the cross-complaint does not meet the criteria for a permissive cross-complaint. Under the circumstances, any reasonable party would conclude a challenge of the order dismissing the cross-complaint under the anti-SLAPP statute was not only devoid of merit, but was made for purposes of delay and "frivolous" within the meaning of Flaherty.
"When deciding the amount of sanctions to impose, courts may consider 'the amount of respondent's attorney fees on appeal; the amount of the judgment against appellant; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future.' " (Keitel v. Heubel (2002) 103 Cal.App.4th 324, 342.) Here, as in Keitel v. Heubel, "the degree of objective frivolousness and delay is extremely high and our desire to discourage like conduct in the future is very strong." (Ibid.)
In support of their motion for sanctions, the cross-defendants submitted evidence that one of their attorneys spent 9.9 hours on this appeal and the motion for sanctions at a rate of $235 per hour, and their other attorney spent 3.5 hours on those matters at a rate of $425 per hour, for total fees of $3,814. Additionally, the cross-defendants incurred copying and binding costs of $91.91. Jones does not object to the amount of the request, and we conclude it is reasonable.
DISPOSITION
The order is affirmed. The cross-defendants are awarded sanctions of $3,905.91 against Jones, and costs on appeal to the extent they are not covered by the sanctions award.
WE CONCUR: HUFFMAN, J., AARON, J.