RAND RESOURCES v. CITY OF CARSONAppellants’ Supplemental Reply BriefCal.October 20, 2017COPY HUANG YBARRASINGER & MAY LLP 550 South HopeStreet, Suite 1850 Los Angetes, California 90071 tel (213} 884-4900 HUANG YBARRA SINGER & MAY LLP www.hysmiaw.com Joseph J. Ybarra October 19, 2017 (213) 884-4904 Joseph.Ybarra@hysmlaw.com VIA HAND DELIVERY SUPREME COURT Honorable Chief Justice Tani Gorre Cantil-Sakauye OCT 2 0 2017 And Honorable Associate Justices California Supreme Court Jorge Navarrete Clerk Earl Warren Building 350 McAllister Street Deputy San Francisco, CA 94102 Re: Rand Resources, LLC, et al., Plaintiffs, Appellants, and Respondents v. City ofCarson, et al., Defendants, Respondents, and Petitioners, Supreme Court Case No. §235735 (Court of Appeal, Second Appellate District, Division One, Case No. B264493) Dear Chief Justice Cantil-Sakauye and Associate Justices: Plaintiffs, Appellants, and Respondents Rand Resources, LLC and Carson El Camino, LLC (collectively, “Plaintiffs” or “Rand”) hereby submit their letter brief responding to arguments raised by Defendants, Respondents, and Petitioners the City ofCarson (the “City”), James Dear (“Dear”), Dr. Leonard Bloom (“Bloom”) and U.S. Capital LLC (“U.S. Capital’’) (collectively, “Defendants”) in the above-captioned matter. Unable to contest Park’s applicability, Defendants instead ignoreits reasoning andbasetheir letter brief almost entirely on a different case (Navellier v. Sletten, 29 Cal. 4th 82, 85 (2002)) that they misread altogether. Defendants’ arguments should be rejected.! ' Because Defendants’ letter briefs are virtual carbon copies of each other, Rand respondsto the arguments raised therein together here. “HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 2 I. PARK SUPPORTS THE COURT OF APPEAL’S UNANIMOUS OPINION THAT PLAINTIFFS’ CLAIMS ARISE FROM CONDUCT, NOT SPEECH. Speech,in its literal sense, plays a role in every (or nearly every) case, and thus the mere fact that a case involves such “speech” cannotpossibly trigger the anti-SLAPP statute. In Park, the Court reaffirmed as much, explaining that: [A] claim is not subject to a motion to strike stmply becauseit contests an action or decision that was arrived at following speechorpetitioning activity, or that was thereafter communicated by meansof speechorpetitioning activity. Rather, a claim maybe struck only ifthe speech orpetitioning activity itselfis the wrong complainedof. Park v. Board ofTrustees ofCalifornia State University, 2 Cal. 5th 1057, 1060 (emphasis added). In Park, this Court held that the anti-SLAPP statute did not apply to an assistant professor’s claim that he had been wrongfully denied tenure due to racial animus. The basis of alleged liability was the denial of tenure, which wasan action taken by the schoolrather than protected speech. /d. at 1068. That speech was involved in numerous ways — alleged comments by the professor’s dean, statements made in connection with the school’s internal grievance process, comments and evaluations regarding whether he deserved tenure, and communications by the school documenting the tenure decision — did not implicate the anti-SLAPP statute because those communications were fundamentally evidence and context, not the basis of alleged liability. Id. Asthe Court of Appeal’s opinion details, the same distinction applies here. Defendants’ liability is premised on their wrongful conduct—acting as the City’s defacto agent in negotiations with the National Football League (NFL) during a period when Rand possessed the exclusive right to act as the City’s agent, actively undermining Rand’s contract with the City, and lying to Rand abouttheir actions. (Court of Appeal Op. at 13, 16-17; AA:1:2:31-33). The mere fact that Defendants may have spoken in the course of breaching their contractual and tort-based duties to Rand does not transmute the HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 3 complaint from one based on garden-variety commercial conduct to one based on protected speech. Il. DEFENDANTS MISREPRESENT THE RECORD AND THE LAW. Unable to reasonably dispute Park’s applicability, Defendants essentially ignore it and focus instead an entirely different case, Navellier. In so doing, they profoundly misread both Park and Navellier and misrepresent the factual record here. Defendants’ substantive argument that Navellier helps them is specious. There, a defendantin a federal lawsuit signed a settlement andreleasestating his intention notto file claims against the plaintiffs, and then later turned around andfiled counterclaims against the plaintiffs later in the case. 29 Cal.4th at 85-86. The federal plaintiffs sued in state court for fraud and breach of contract, alleging that filing the counterclaims breached the defendant’s earlier promise notto file such claims. /d. at 87. This Court first determined that the action arose from (1) statements madein the settlement of litigation, and (ii) the filing of subsequent pleadings in that litigation. The Court then asked whether those statements and pleadings were“statement|s] or writing[s] made in connection with an issue under consideration or review by ...a judicial body.” /d. at 90 (alteration in original). The Court reached the unexceptional conclusion that they were and thus the action arose from petitioning activity implicating the anti-SLAPPstatute. /d. (“Sletten is being sued because of the affirmative counterclaimshe filed in federal court. In fact, but for the federal lawsuit and Sletten’s alleged actions taken in connection with thatlitigation, plaintiffs’ present claims would have nobasis.’). Here, by stark contrast, Defendants are not being sued because of filings they made in federal court or any other judicial proceeding. Neither are they being sued for expressing an opinion about whoshould be the City’s representative, or about whether the NFL should come to Carson, or for petitioning the City Council to change agents when it was next able to do so. Moreover, Defendants’ contention that the speech alleged in the operative complaint “‘address[ed] whom [sic] should act for, or continue to act for, the City as its exclusive agent...” is flatly contradicted by the record. HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 4 City Ltr. Br. at 4; Bloom Ltr. Br. at 4. Indeed, even a cursory review of the actual First Amended Complaint (as opposedto the straw man portrayed in Defendants’ briefs) makes clear that the communicationscited therein nowhere make reference to such normative policy opinions as who should represent the City in negotiations. Rather, they are prosaic communications evidencing Bloom’s displacement of Rand as the City’s defacto agent and Defendants’ attempts to interfere with Rand’s contract and lies abouttheir actions and intentions. AA:1:2:31-33. Indeed, far from expressing protected opinions, most of the conversations alleged here tookplace in secret, putting the lie to Defendants’ argumentthat this case arises out of some grand policy debate. Id. Further, even if discussions about who should be the City’s agent had been alleged, Rand doesnotassert liability on the basis of such discussions. In Park, this Court acknowledged that the defendant andaffiliated individuals may have had someprotected conversations before and after the conduct for which they were being sued, including conversations about whether the professor deserved tenure. 2 Cal. 5th at 1068 (communicationsat issue included evaluations made during the tenure application process). This Court explicitly acknowledged as much but recognized the distinction between those conversations andthe ultimate non-protected tenure decision forming the basis ofliability. Jd. at 1068; see also id. at 1071 (“[N]one ofthe core purposes the Legislature sought to promote when enacting the anti-SLAPP statute are furthered by ignoring the distinction between a governmententity’s decisions and the individual speech or petitioning that may contribute to them.”). So too here. Defendants are not being sued because they got together and talked about how Rand should be displaced as the City’s agent; they are being sued because they implemented that decision by actively displacing Randin negotiations with the NFL and lying aboutit. Jd; AA:1:2:31-40. 2 Defendants’ briefs contain other misstatements of the record as well. For instance, the Bloom letter brief states that “it is alleged the gist of these communications were designed to ‘induce the City to cease negotiations,” citing paragraph 42 of the operative complaint. Bloom Ltr. Br. at 4. But that paragraph does not contain the cited language, nor does any other paragraph of the FAC. AA:1:2:35. HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 5 Unable to mount a coherent argument based on Navellier or Park, Defendants resort to quoting Park’s description ofNavellier using an aggressive ellipsis that wildly distorts the reasoning of both cases and appears designed to mislead the Court. This Court’s Park opinion actually and accurately described Navellier as follows: “The defendant’sfiling of counterclaims constituted the alleged breach of contract. Likewise, the defendant’s misrepresentation of his intent not to file counterclaims, a statement we explained was protected activity made in connection with a pending judicial matter (see § 425.16, subd.(e)(1), (2)), supplied an essential element of the fraud claim,” and thus brought the fraud claim within the ambit of the anti-SLAPP statute. Park, 2 Cal. Sth at 1064 (emphasis added, internal citation omitted). Defendants omit the sections of Park in bold above, in an apparent attempt to manufacture authority for their otherwise-unsupportable contention that the mere involvement of communications or statements of present intent in a case is enough to implicate the anti-SLAPPstatute. See Carson Letter Br. at 3; Bloom Letter Br. at 3. But that is not the law, and the fact that Defendants had to resort to such tactics confirms as much. il. CONCLUSION . Liability in the present case arises from conduct, not protected speech. The Court of Appeal unanimously so held, and Park confirmsits reasoning and result. The Court of Appeal should be affirmed. Respectfully Submitted, \\ ae glh Worefp, Ata: JOSEPH J. YBARRA (SBN 218130) HUANG YBARRA SINGER & MAY LLP Counsel for Plaintiffs, Appellants, and Respondents HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 6 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the county of Los Angeles, State of California. | am over the age of 18 and not a partyto the within action. My business addressis: 550 South HopeStreet, Suite 1850, Los Angeles, California 90071. On October 19, 2017, I served the foregoing document(s) described as: REPLY LETTER BRIEF on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressedas follows: SEE ATTACHED SERVICE LIST [ ] BY FIRST CLASS MAIL. I placed such envelope in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. [ am aware that on motion of the party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [X] BY OVERNIGHT COURIER. | am familiar with the practice at my place of business for collection and processing of packages for overnight delivery by Federal Express. Such correspondence with delivery fees paid will be deposited with a facility regularly maintained by Federal Express for receipt on the next business day. [| BY ELECTRONIC SERVICE. Pursuant to the C.R.C. Rule 8.78 an electronic copy will be automatically served to the recipients at the email addresses listed on the service list through the TrueFilings electronic system. Executed on October 19, 2017, at Los Angeles, California. [X] (State) I declare under penalty of perjury underthe laws ofthe State of California that the aboveis true and correct. [ /\/ 3 y E ! [ ; Yvonne Godson VU HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 7 SERVICE LIST RAND RESOURCES, LLC, ETAL. v. LEONARD BLOOM, ETAL. LASC NO. BC564093; APPEL. NO. B264493; SUPREME COURT NO. 8235735 Counsel for City ofCarson and James Dear Sunny Soltani Service via Overnight Delivery Christine Burrows ALESHIRE & WYNDER LLP 2361 Rosecrans Avenue, Suite 475 El] Segundo, CA 90245 Counsel for Leonard Bloom and US Capital LLC John V. Tamborelli Service via Overnight Delivery TAMBORELLI LAW GROUP 21700 Oxnard Street, Suite 1590 Woodland Hills, CA 91367 Amy Hoyt Service via Overnight Delivery BURKE WILLIAMS & SORENSON 1600 Iowa Avenue, Suite 250 Riverside, CA 92507-7426 Thomas Burke Service via Overnight Delivery DAVIS WRIGHT TREMAINE, LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111-6533 Clerk of the Court Service via Overnight Delivery COURT OF APPEAL Second Appellate District — Division 1 Ronald Reagan State Building 300 S. Spring Street, 2nd Floor, North Tower Los Angeles, CA 90013 LOS ANGELES SUPERIOR COURT Service via Overnight Delivery Hon. Michael Stern 111 N. Hill Street, Department 62 Los Angeles, CA 90012 HUANG YBARRA SINGER & MAY LLP October 19, 2017 Page 8 SUPREME COURT OF CALIFORNIA Service via Hand Delivery 350 McAllister Street, Room 1295 San Francisco, CA 94102
