NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-14-CV-258886)
In this action for unfair competition, the trial court determined that plaintiff Holly Moose had failed to prove unfair competition (Bus. & Prof. Code, § 17200 et seq.) in her action against defendant U.S. Legal Support, Inc. (U.S. Legal), a foreign corporation doing business in California using certified shorthand reporters as independent contractors. The trial court first ruled that U.S. Legal was not required to comply with the Moscone-Knox Professional Corporation Act (Moscone-Knox Act or the Act) because it was not itself practicing shorthand reporting. The court further found that plaintiff had failed to show economic injury. Although we find error in the court's reasoning on both elements of plaintiff's cause of action, we nonetheless uphold its ultimate conclusion that plaintiff was unable to support her claim of economic injury caused by U.S. Legal's conduct in this state. Accordingly, we must affirm the judgment.
The facts underlying this dispute were provided in the parties' stipulation before trial, supplemented by exhibits and declarations submitted to the trial court. Plaintiff is a certified shorthand reporter (CSR) who directly provides court reporting services under the fictitious name Holly Moose & Associates. She personally transcribes depositions as well as engages other CSRs as independent contractors to transcribe proceedings for her clients. Defendant U.S. Legal is a privately held, for-profit Texas corporation which is registered with the California Secretary of State as a foreign corporation. It is not, however, "authorized, registered, or certified" in California as a foreign professional corporation or as a shorthand reporting corporation. In at least nine California offices U.S. Legal "provides services in two primary lines of business: (1) court reporting; and (2) record retrieval." It also provides "trial and litigation support" as part of its "e-discovery" service, and its web portal allows clients to schedule depositions, view and download transcripts and exhibits, and appear for depositions via videoconference.
About 70 percent of U.S. Legal's California revenue is attributable to its court reporting line of business. U.S. Legal arranges with CSRs to transcribe depositions and other legal proceedings in this state. The company considers these CSRs to be independent contractors and does not restrict any CSR's ability to engage in court reporting through or for other firms that offer "court reporting and litigation support services." Some CSRs carry business cards that bear the CSR's name and the contact information for a local U.S. Legal office. A client looking for court reporting services typically contacts U.S. Legal directly, and U.S. Legal advises the client regarding the rates it will charge for the CSR's transcription and for the delivery of the finished transcript by U.S. Legal's Production Department. Upon finishing the transcript, the CSR signs and submits it to U.S. Legal. U.S. Legal pays the CSR at a rate it has set or negotiated, and it bills the client at different rates. The Production Department is composed of U.S. Legal employees who are not CSRs; they print, bind, and deliver copies of the transcript directly to clients and to any party who pays a charge. U.S. Legal also notifies all parties to a deposition that the deponent made changes, signed the transcript without changes, failed to certify the transcript, or failed to appear to make changes.
In addition to its production employees, U.S. Legal employs sales representatives to market its "court reporting services." Among its marketing strategies is the giving of gift cards, vacation packages, and retail merchant discounts to decision-makers at law firms or insurance companies (or if the firm instructs, to a local charity) as an incentive for booking depositions with U.S. Legal. In 2013 and 2014 the aggregate of these gift cards sometimes exceeded $100 per client. CSRs who work with U.S. Legal may receive a Reporter's Manual listing U.S. Legal's standards and describing its preferred format for the transcripts and other documents the CSRs submit. When a client complains about a CSR's performance, U.S. Legal will communicate with the CSR and report the CSR's response back to the client.
Peter Giammanco, an executive officer at U.S. Legal, testified that the company did not like to give more than $25 per event in gifts or charitable contributions, but there was no limit to the number of such gifts that would be offered in a single year. Giammanco also testified that U.S. Legal held parties to which its clients were invited.
As part of its marketing effort, U.S. Legal advertises its "court reporting services," including "[r]ealtime reporting," "[r]ealtime web streaming," and provision of transcripts, deposition summaries, deposition suites and "breakout" rooms, interpreters, and videography, as well as the services of a "document management" team and the coordination and assistance of case managers for "all aspects of [the client's] litigation needs." Some of its advertisements offer assistance to the client "to plan, prepare and present your case effectively at trial, working through matters such as: Where is your evidence & where does it need to be? [¶] How are you going to use it? [¶] What demonstrative graphics and animation can best aid your case?" U.S. Legal's "project management and support" includes visiting the courtroom and setting up the technology used in presenting the case at trial. And its "Litigation & Trial Services Division" also provides trial preparation and presentation staff at various proceedings. U.S. Legal professes to "know what works and what doesn't work in the courtroom" and represents that it can " 'deliver a seamless, cost effective and efficient solution to your trial needs' by providing both an in-court CSR and 'trial preparation and presentation staff at trials.' " U.S. Legal has no policy against providing litigation and trial support services to one party in the same case for which it is providing court reporting services.
In many of U.S. Legal's relationships with various entities—more than 20 and fewer than 100—it has a "preferred vendor" agreement or arrangement in which it acts as the preferred provider of court reporting services for "anything involving the particular entity." In November 2011, U.S. Legal notified a law firm, Laughlin Falbo Levy & Moresi, LLP (Laughlin) that it had entered into an agreement with Argonaut Insurance Company (Argonaut) allowing U.S. Legal to be the court reporting provider for files Laughlin was handling on behalf of Argonaut. From that time through 2015, U.S. Legal provided CSRs to depositions in cases involving Argonaut. Laughlin had been a client of plaintiff's between 1994 and April 2014, and some of this work had been for Argonaut until November 2011.
Plaintiff filed her first amended complaint against U.S. Legal in June 2014, claiming unlawful and unfair business acts and practices in violation of the Unfair Practices Act, Business and Professions Code sections 17000 et seq. and 17200 et seq. Plaintiff sought declaratory and injunctive relief to preserve the state's "high standards of ethics, integrity and competence" imposed on the shorthand reporting profession. Those regulations, she asserted, were designed for the protection of the public as well as litigants. U.S. Legal, however, had been "continuously flouting" and degrading those standards by "rendering" shorthand reporting services while claiming to be immune from the statutes, rules, and procedures that govern the court reporting profession. In particular, U.S. Legal was violating the Moscone-Knox Act and the Business and Professions Code by (1) failing to ensure that all of its shareholders be licensed court reporters as required by Corporations Code section 13406 and Business and Professions Code section 8044; (2) using a corporate name that does not comply with Business and Professions Code section 8043; (3) providing "secret rebates, gifts, and kickbacks" to secure business, in violation of Business and Professions Code section 17045 and California Code of Regulations, title 16, section 2475(b)(7)-(8); and (4) purporting to offer impartial court reporting services while also providing consultations to assist one side in trial preparation—including an evaluation of the strengths and weaknesses of the case—in violation of Business and Professions Code section 8025, subdivision (d), and California Code of Regulations, title 16, section 2475(b)(7). In addition, plaintiff alleged, by violating the Act and applicable regulations U.S. Legal was demonstrating "unprofessional conduct," inconsistent with Business and Professions Code sections 8042 and 8046 and with the California Code of Regulations, title 16, section 2475. Finally, to the extent that U.S. Legal was not subject to the restrictions of a California professional corporation, plaintiff asserted that it was violating Corporations Code sections 13405, subdivision (b), 13406, and 13409, subdivision (b), along with California Code of Regulations, title 16, section 2467 "by failing to meet the requirements for lawfully rendering professional services in California as a professional corporation."
Business and Professions Code section 8043 states: "The name of a shorthand reporting corporation and any name or names under which it may be rendering professional services shall contain and be restricted to the name or the last name of one or more of the present, prospective, or former shareholders or of persons who were associated with a predecessor person, partnership, corporation or other organization and whose name or names appeared in the name of such predecessor organization, and shall include either (a) the words 'shorthand reporting corporation'; (b) the title 'certified shorthand reporter,' or the abbreviation 'C.S.R.,' and wording or abbreviations denoting corporate existence; or (c) the words 'a professional corporation.' "
Business and Professions Code section 8042 states: "It shall constitute unprofessional conduct and a violation of this chapter for any person licensed under this chapter to violate, attempt to violate, directly or indirectly, or assist in or abet the violation of, or conspire to violate any provision or term of this article, the Moscone-Knox Professional Corporation Act, or any regulations duly adopted under those laws." Business and Professions Code section 8046 states: "A shorthand reporting corporation shall not do or fail to do any act the doing of which or the failure to do which would constitute unprofessional conduct under any statute, rule or regulation now or hereafter in effect which pertains to shorthand reporters or shorthand reporting. In conducting its practice it shall observe and be bound by such statutes, rules and regulations to the same extent as a person holding a license under this chapter."
The cited regulation, California Code of Regulations, title 16, section 2475, sets standards for any business that "renders" shorthand reporting services, within the meaning of Corporations Code section 13401. Among those standards is the prohibition on gifts exceeding $100 in a calendar year to an attorney or an attorney's family members, an employee of an attorney or an employee's family members, a law firm as a single entity, a client, a witness, an insurer, an underwriter, or any agent or representative thereof.
Corporations Code section 13405, subdivision (b), states: "Subject to Section 13404.5, a foreign professional corporation qualified to render professional services in this state may lawfully render professional services in this state, but only through employees who are licensed persons, and shall render professional services outside of this state only through persons who are licensed to render the same professional services in the jurisdiction or jurisdictions in which the person practices. The foreign professional corporation may employ persons in this state who are not licensed in this state, but those persons shall not render any professional services rendered or to be rendered by the corporation in this state." Corporations Code section 13406 prescribes similar licensing prerequisites with respect to shareholders of a "professional corporation." Corporations Code section 13409, subdivision (b), imposes conditions on the name of a foreign professional corporation. And California Code of Regulations, title 16, section 2467 sets forth the requirement that the shares of a "shorthand reporting corporation" be issued only to a licensed person.
Plaintiff complained that U.S. Legal, by continuing to "render professional services" illegally while claiming that it was not subject to the Act as a foreign corporation, was evading regulatory oversight by the Court Reporters Board of California (CRB or Board) and gaining an unfair advantage over its competitors, including plaintiff. As a result of U.S. Legal's unauthorized rendering of professional services and its unfair practice of offering illegal gifts and rebates, plaintiff alleged that she had suffered competitive injury "in the form of lost clients and revenue, diminished market share, and time and money spent on marketing and client retention that Plaintiff would not otherwise have incurred." Plaintiff specifically sought a declaration stating that U.S. Legal had been "rendering" court reporting services unlawfully, as well as injunctive relief (1) preventing U.S. Legal from rendering court reporting services in this state—or such relief "unless and until" it complies with the provisions of the Act that govern corporations that render court reporting services; and (2) barring U.S. Legal from offering unlawful rebates.
In response to these allegations, U.S. Legal maintained that it was "not subject to the Act, as it does not provide 'professional (shorthand reporting) services.' " Whether it should be subject to the Act and oversight by the CRB was "a question for the [L]egislature, not the judiciary." U.S. Legal, it explained, was one of a number of national, regional, and local corporations which are not organized as "professional (shorthand reporting) corporations" as defined by the Act, but offer "a variety of litigation support services, including the facilitation of shorthand reporting services through independent contractor CSRs." U.S. Legal emphasized that its employees were not CSRs or engaged "in the practice of shorthand reporting for which a license is required"; and it was only the CSR who performed the court reporting activity, prepared and signed the transcript, and certified its accuracy. U.S. Legal's employees merely conducted "ancillary and business practices": They scheduled the depositions and court appearances, made and sent copies of the transcript and exhibits to the attorneys and others, notified the deponent and parties regarding the status of the transcript and any changes to it, and handled all the billing. As for its practice of providing gift cards to clients and potential clients, U.S. Legal represented that this was "a common sales tool" among "corporate shorthand reporting providers" which benefited its CSRs. With respect to plaintiff's allegation of harm, U.S. Legal urged the court to find that plaintiff's loss of "a few deposition assignments" did not suffice as a "legally cognizable economic injury" and therefore did not justify the "extreme remedy" of a permanent injunction.
The parties tried the case based on the stipulated facts, deposition testimony from plaintiff and two of U.S. Legal's witnesses, declarations from plaintiff and U.S. Legal representatives, judicially noticeable legislative acts, and a 2012 judicial ruling on the authority of the CRB to regulate and discipline U.S. Legal. After hearing argument, the court found in favor of U.S. Legal because (1) U.S. Legal was not engaged in "the practice" of shorthand reporting and therefore was not required to comply with the Moscone-Knox Act, and (2) plaintiff had not shown that she suffered economic loss due to U.S. Legal's business practice. From the ensuing judgment on June 17, 2016, plaintiff filed this timely appeal.
U.S. Legal cited a June 21, 2012 decision by a different judge of the superior court, who ruled that the CRB had no authority to cite U.S. Legal for violating California Code of Regulations, title 16, section 2475, subdivision (b)(8). The court on that occasion reasoned that U.S. Legal was not a "foreign professional corporation" within the jurisdiction of the Board, because it was not authorized to perform professional services —that is, court reporting services. Accordingly, the court added, although U.S. Legal "renders professional services, namely shorthand reporting services," it was not a "shorthand reporting corporation" subject to the CRB's jurisdiction. (Italics added.) The court declined to reach the question of whether the Board had the authority to cite U.S. Legal for its unauthorized practice of shorthand reporting.
1. Standard of Review
As noted, the case was tried on stipulated facts and additional evidence derived from discovery and judicial notice. Consequently, the primary issue before the superior court—whether U.S. Legal could be found to have engaged in unfair competition under Business and Professions Code section 17200 et seq.—is one to which we apply de novo review. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.) That question in turn depends on whether U.S. Legal was subject to the laws and regulations governing shorthand reporting corporations, which is also a matter for this court's independent review, as it requires interpretation of the provisions governing providers of court reporting services. To the extent that the court made findings of fact, express or implied, we generally defer to those findings unless there is no substantial evidence to support them. (Ibid.) However, where the party with the burden of proof has failed to convince the trier of fact that the evidence establishes the claim, we must uphold the court's finding unless that evidence "compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279 (Shaw), quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571 (Roesch); In re I.W. (2009) 180 Cal.App.4th 1517, 1528; Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 (Almanor). 2. The Reach of the Unfair Competition Law
California's Unfair Competition Law (UCL) was enacted to " 'protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.' [Citation.]" (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320 (Kwikset).) "In service of that purpose, the Legislature framed the UCL's substantive provisions in ' "broad, sweeping language" ' [citations] and provided 'courts with broad equitable powers to remedy violations.' [Citation.] " (Ibid.)
The UCL defines "unfair competition" in Business and Professions Code section 17200 to include "any unlawful, unfair or fraudulent business act or practice." By including the word "unlawful," the Legislature intended to include " ' "anything that can properly be called a business practice and that at the same time is forbidden by law." ' [Citation.]" (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266.)
In her complaint plaintiff alleged both unlawful and unfair business acts and practices by U.S. Legal. On appeal, however, she confines her argument to the "unlawful" aspect of U.S. Legal's conduct, premised on the claim that the corporation was engaged in the unauthorized "rendering" of shorthand reporting services in violation of the Moscone-Knox Act and related provisions of the Business and Professions Code. We must therefore consider whether (1) U.S. Legal was rendering those services, (2) it was doing so in a way that violates the Act, and (3) its unlawful conduct caused plaintiff to suffer "economic injury" within the meaning of the UCL. If those conditions are demonstrated, the remaining question—whether U.S. Legal may be enjoined from further practices that violate the Act—can be addressed. 3. The Moscone-Knox Act
The Moscone-Knox Act, Corporations Code section 13400 et seq., was enacted in 1968 to permit certain professions to incorporate, while ensuring that control over the decisions made by the professional were not made or controlled by a layperson. (See Marik v. Superior Court (1987) 191 Cal.App.3d 1136, 1139 [noting policy against allowing decisions of healing practitioners to be controlled by laypersons, "who are not bound by the ethical standards governing the profession [and who] might seek to enhance the corporation's 'commercial advantage' rather than conform to professional strictures"].) Sections 13404 and 13405 specify the qualifications of a professional corporation, including the obtaining of a certificate and the requirement that it render professional services "only through employees who are licensed persons." (§ 13405, subd. (a).) Section 13406 dictates that all shares of the professional corporation must be held by persons licensed to "render" the professional service provided by the corporation.
Before the Act, licensed professionals in certain disciplines, such as medicine, law, dentistry, and shorthand reporting, were not permitted to incorporate. (See, e.g., People ex rel. State Bd. of Medical Examiners v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158 [affirming prohibition against corporation engaging in the practice of medicine]; Parker v. Board of Dental Examiners of State of Cal. (1932) 216 Cal. 285, 289 [charge of unprofessional conduct upheld where petitioner formed and operated corporation for his dentistry practice]; People v. Merchants Protective Corp. (1922) 189 Cal. 531, 536-537 [rejecting corporation's claim that it was not practicing law, but merely bringing attorneys and clients together].) The prevailing belief was that incorporation was inconsistent with the objectives of regulation and that the relationship of "trust and confidence" between practitioner and client or patient would be compromised by the "interposition of a corporate entity." (39 Ops.Cal.Atty.Gen 155, 157 (1962).)
Section 13401, subdivision (d), defines "licensed person" to be "any natural person who is duly licensed under the provisions of the Business and Professions Code, the Chiropractic Act, or the Osteopathic Act to render the same professional services as are or will be rendered by the professional corporation or foreign professional corporation of which he or she is, or intends to become, an officer, director, shareholder, or employee."
Section 13410 provides that "[a] professional corporation or a foreign corporation qualified to render professional services in this state shall be subject to the applicable rules and regulations adopted by, and all the disciplinary provisions of the Business and Professions Code expressly governing the practice of the profession in this state, and to the prowers of, the governmental agency regulating the profession in which such corporation is engaged. . . ." (Italics added.) CSRs are governed by the CRB. (Bus. & Prof. Code, § 8000, subd. (a), § 8008; see Cal. Code Regs., tit. 16, §§ 2400 et seq.) And Business and Professions Code section 8042 states that any violation of the shorthand reporting provisions of that code, the Moscone-Knox Act, or accompanying regulations constitutes unprofessional conduct.
Shorthand reporting corporations were first authorized in 1972, with the enactment of Business and Professions Code section 8040. As in section 13406, Business and Professions Code section 8044 specifically requires "each director, shareholder, and officer of a shorthand reporting corporation" to be a licensed person. U.S. Legal, however, considers itself a "foreign corporation" that is not subject to either the Act or the jurisdiction of the CRB. The parties stipulated that U.S. Legal is not "authorized, registered, or certified by the State of California as a foreign professional corporation." 4. Applicability of the Moscone-Knox Act
As currently defined, a shorthand reporting corporation is "a corporation which is authorized to render professional services, as defined in Section 13401 of the Corporations Code, as long as that corporation and all of its shareholders, officers, directors, and employees rendering professional services who are certified shorthand reporters are in compliance with the Moscone-Knox Professional Corporation Act, this article, and all other statutes and regulations now or hereafter enacted or adopted pertaining to that corporation and the conduct of its officers. With respect to a shorthand reporting corporation, the governmental agency referred to in the Moscone-Knox Professional Corporation Act is the Court Reporters Board of California." (Bus. & Prof. Code, § 8040.)
"Foreign professional corporation" is defined in section 13401, subdivision (c), as "a corporation organized under the laws of a state of the United States other than this state that is engaged in a profession of a type for which there is authorization in the Business and Professions Code for the performance of professional services by a foreign professional corporation." As noted, "a foreign professional corporation qualified to render professional services in this state may lawfully render professional services in this state, but only through employees who are licensed persons . . . The foreign professional corporation may employ persons in this state who are not licensed in this state, but those persons shall not render any professional services rendered or to be rendered by the corporation in this state." (§ 13405, subd. (b).)
Plaintiff's primary contention is that U.S. Legal is providing court reporting services without authorization to do so by the Moscone-Knox Act. Furthermore, she points out, U.S. Legal is evading the restrictions imposed on shorthand reporting corporations, as (1) it gives gifts exceeding $100 yearly to law firm personnel who schedule depositions with U.S. Legal, a violation of Business and Professions Code section 8046; and (2) most of its shareholders and all of its directors are not licensed CSRs, in violation of section 13405, section 13406, and Business and Professions Code section 8044. According to plaintiff, allowing U.S. Legal to evade the governing statutes and regulations "would leave serious gaps in the regulatory framework governing the profession—and by extension, would undermine the regulatory regime governing corporate practice of the professions generally." More specifically, owners and directors who are not licensed can escape penalties for violating these regulations, thereby compromising the protections offered the public by the statutory and regulatory provisions. In plaintiff's view, a corporation like U.S. Legal should not avoid liability for sanctions and civil penalties for its failure to provide timely transcripts or other "unprofessional conduct in or directly related to the practice of shorthand reporting." (Bus. & Prof. Code, § 8025, subd. (d).)
In this context "unprofessional conduct" " includes, but is not limited to, acts contrary to professional standards concerning confidentiality; impartiality; filing and retention of notes; notifications, availability, delivery, execution and certification of transcripts; and any provision of law substantially related to the duties of a certified shorthand reporter." (Bus. & Prof. Code, § 8025, subd. (d).)
U.S. Legal maintains that it is exempt from the requirements of the Act and related statutory and regulatory provisions, because it is not engaged in "providing" or "rendering" professional shorthand reporting services, within the meaning of section 13401, subdivision (a). Nor, according to U.S. Legal, is it a shorthand reporting corporation, as defined in Business and Professions Code section 8040, because it is not a corporation "authorized to render professional services" (as defined in section 13401). (Bus. & Prof. Code, § 8040, italics added.)
The parties' divergent positions with respect to the nature and scope of U.S. Legal's services are a central feature of their dispute. Both purport to describe U.S. Legal's service with reference to court reporting services using terms that alternate between "render," "provide," "practice," and "perform." The superior court itself used both "render" and "practice" interchangeably in determining that U.S. Legal does not "render" professional shorthand reporting services because it does not "practice" shorthand reporting within the meaning of Business and Professions Code section 8017.
This section defines the "practice" of shorthand reporting as "the making, by means of written symbols or abbreviations in shorthand or machine shorthand writing, of a verbatim record of any oral court proceeding, deposition, court ordered hearing or arbitration, or proceeding before any grand jury, referee, or court commissioner and the accurate transcription thereof." (Bus. & Prof. Code, § 8017.)
There can be no dispute that U.S. Legal provides court reporting services to its clients. It does so by supplying CSRs, with whom it has separately contracted, for depositions and other legal proceedings in which the client is a participant. Although in its brief on appeal it denies that it provides shorthand reporting services, the company has represented itself as "one of the leading national providers of court reporting services" and proclaimed its commitment "to providing highly skilled court reporters" whom it "rigorously screen[s] . . . to ensure that our services are delivered with accuracy, speed and professionalism." In 2013 it noted that it had been recognized as the "Best Court Reporting and Deposition Services provider in Houston" that year. At various points in its brief on appeal it refers to itself as a "shorthand reporting provider fir[m]"] and "shorthand reporting service corporatio[n]" and acknowledges that it "provides" shorthand reporting as well as other services.
However, for purposes of determining whether it must comply with the Moscone-Knox Act and related provisions of the Business and Professions Code, whether U.S. Legal provides the targeted services is not the precise question; rather, the conduct of U.S. Legal must be measured by the terms of the relevant provisions themselves. The Act defines "professional services" as "any type of professional services that may be lawfully rendered only pursuant to a license, certification, or registration authorized by the Business and Professions Code, the Chiropractic Act, or the Osteopathic Act." (§ 13401, subd. (a), italics added.) Thus, we first consider whether U.S. Legal "renders" professional shorthand reporting services, whether authorized or not.
The Moscone-Knox Act expressly applies, through the Business and Professions Code, to businesses that render professional shorthand reporting services. That code defines "shorthand reporting corporation" in terms of its authority to render shorthand reporting services. (Bus. & Prof. Code, § 8040.) The closest applicable definitions of "render" listed in the Oxford English dictionary are to "[p]rovide or give (a service, help, etc.)." (<https://en.oxforddictionaries.com/definition/us/render> [as of Dec. 3, 2018] archived at: <https://perma.cc/4VL9-5688>.) Merriam-Webster offers "to transmit to another: DELIVER" (<https://merriam-webster.com/dictionary/render> [as of Dec. 3, 2018], archived at: < https://perma.cc/44AL-LAG5>); the American Heritage Dictionary submits "To give or make available; provide: render assistance; render a service." (<https://www.ahdictionary.com/word/search.html?q=render> [as of Dec. 3, 2018], archived at: <https://perma.cc/5B7C-RWMS>); and Webster's Third New International Dictionary lists, inter alia, "to give back, deliver, yield, cause to become" and "to hand over to another (as the intended recipient: DELIVER, TRANSMIT." (Webster's 3d New Internat. Dict. (1993) p. 1922).
California Code of Regulations, title 16, section 2461, subdivision (c), defines "professional services" in the context of shorthand reporting as "the practice of shorthand reporting as defined in section 8017 of the [Business and Professions] Code." (See fn. 13.)
These broad meanings of "render" apply to some of the services provided and delivered by U.S. Legal; the company not only supplies the court reporting activity actually performed by the CSR at the subject proceeding—i.e., the making of the verbatim record—but ensures the copying and delivery of the transcript to its clients and other parties through its Production Department. U.S. Legal also notifies all parties to a deposition that the deponent failed to make changes to the transcript, failed to certify it, signed it without changes, or signed it with changes on an attached sheet. Several of these functions fall within the range of tasks imposed on an individual or corporation performing the services expected of a CSR or shorthand reporting corporation, as set forth in both the governing regulations—in particular, California Code of Regulations, title 16, section 2403—and the statutory provisions governing depositions. Code of Civil Procedure section 2025.320, subdivision (b), for example, requires any services or products "offered or provided by the deposition officer or the entity providing the services of the deposition officer" to one party or the party's attorney to be provided to all parties or their attorneys. (Italics added.) Similarly, when a request has been made for an early copy of the transcript, it appears to be U.S. Legal that assumes the task of providing it to all participants, even though Code of Civil Procedure section 2025.510, subdivision (d), imposes that obligation on the deposition officer (whom U.S. Legal recognizes as the CSR). We conclude, therefore, that U.S. Legal does render shorthand reporting services.
At the time of the proceedings below, California Code of Regulations, title 16, section 2403, subdivision (b), listed the following as some of the responsibilities inherent in the "accurate transcription" of a record after a deposition: "(2) Making a full or partial copy of transcription available. [¶] (3) Notifying all parties who attended a deposition of requests made by other parties for either an original or copy of the transcript, or any portion thereof . . . (5) Sending written notice to deponent and to all parties attending the deposition when the original transcript of the testimony for each session of the deposition is available for reading, correcting and signing. [¶] (6) Indicating on the original of the transcript, if the deponent has not already done so at the office of the shorthand reporter, any action taken by the deponent and indicate on the original of the transcript the deponent's approval of, or failure or refusal to approve, the transcript. [¶] (7) Sending written notification to the parties attending the deposition of any changes which the deponent timely made in person . . . (9) Securely sealing the transcript in an envelope or package endorsed with the title of the action and marked: 'Deposition of (here insert name of deponent[)],' and promptly transmitting it to the attorney for the party who noticed the deposition. [¶] (10) If the reporter still has a copy, making a transcript of a deposition testimony available to any party requesting a copy, on payment of a reasonable charge."
This provision states: "Services and products offered or provided by the deposition officer or the entity providing the services of the deposition officer to any party or to any party's attorney or third party who is financing all or part of the action shall be offered to all parties or their attorneys attending the deposition. No service or product may be offered or provided by the deposition officer or by the entity providing the services of the deposition officer to any party or any party's attorney or third party who is financing all or part of the action unless the service or product is offered or provided to all parties or their attorneys attending the deposition. All services and products offered or provided shall be made available at the same time to all parties or their attorneys." (Code Civ. Proc. § 2025.320, subd. (b).)
Section 2025.510, subdivision (d), of the Code of Civil Procedure states: "If the deposition officer receives a request from a party for an original or a copy of the deposition transcript, or any portion thereof, and the full or partial transcript will be available to that party prior to the time the original or copy would be available to any other party, the deposition officer shall immediately notify all other parties attending the deposition of the request, and shall, upon request by any party other than the party making the original request, make that copy of the full or partial deposition transcript available to all parties at the same time."
As noted, Business and Professions Code section 8040 defines "shorthand reporting corporation" as a corporation that is "authorized to render professional services, as defined in [s]ection 13401 . . . , as long as that corporation and all of its shareholders, officers, directors, and employees rendering professional services who are certified shorthand reporters are in compliance with the Moscone-Knox Professional Corporation Act, this article, and all other statutes and regulations now or hereafter enacted or adopted pertaining to that corporation and the conduct of its officers. With respect to a shorthand reporting corporation the governmental agency referred to in the Moscone-Knox Professional Corporation Act is the Court Reporters Board of California."
"Protection of the public shall be the highest priority for the Court Reporters Board of California in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount." (Bus. & Prof. Code, § 8005.1.) This admonition is consistent with the overall purpose of the statutes applicable to shorthand reporting practice—i.e., "to establish and maintain a standard of competency for those engaged in the practice of shorthand reporting, for the protection of the public, in general, and for the protection of all litigants whose rights to personal freedom and property are affected by the competency of shorthand reporters, in particular." (Bus. & Prof. Code, § 8015.)
Business and Professions Code section 8044 requires each director, shareholder, and officer of a shorthand reporting corporation to be a "licensed person." California Code of Regulations, title 16, section 2475, subdivision (b), requires every "business that renders professional services, namely shorthand reporting services," to comply with agreed-upon delivery dates, provide notification of delays, and notify parties of requests for transcript preparation. This regulation also calls upon the shorthand reporting business to "[a]ct without bias" and proscribes gifts and incentives of more than $100 per year. These provisions illustrate the Legislature's concern for fair and equal access by all parties to the services provided by either the CSR or the organization arranging the service—such as U.S. Legal.
It is undisputed that U.S. Legal is not in compliance with Business and Professions Code section 8044. It is also apparent that U.S. Legal does not comply with the cited regulations, in that it (1) does not act "without bias toward" parties or attorneys when it provides its trial support services (See Cal. Code Regs., tit. 16, § 2475, subd. (b)(6)), and thus (2) engages in a relationship with its clients that "compromises the impartiality of the [CSR]" (Cal. Code Regs., tit. 16, § 2475, subd. (b)(7)); and it (3) gives gifts exceeding $100 to law firms or associated individuals. (Cal. Code Regs., tit. 16, § 2475, subd. (b)(8).) U.S. Legal nevertheless adheres to its position that its compliance with these provisions is not required because it is not a shorthand reporting corporation and is not rendering—or performing, engaged in, or practicing—shorthand reporting services.
The superior court adopted U.S. Legal's position in ruling that U.S. Legal need not comply with the Moscone-Knox Act because it does not practice shorthand reporting: It "does not make by means of written symbols or abbreviations in shorthand or machine shorthand writings a verbatim record of any oral court proceeding, deposition or hearing and the accurate transcription thereof." This narrow reasoning failed to take into account the scope of the "accurate transcription" of the record, which is required by Business and Professions Code section 8017. Shorthand reporting "practice" extends beyond the physical acts of recording and transcription to functions performed by U.S. Legal: it includes truthful and accurate advertising, adherence to agreed-upon delivery dates, and prompt notification of delays. (Cal. Code Regs., tit. 16, § 2475.) Thus, shorthand reporting encompasses more than the mechanical acts recognized by the superior court in this case.
As noted earlier, "The practice of shorthand reporting is defined as the making, by means of written symbols or abbreviations in shorthand or machine shorthand writing, of a verbatim record of any oral court proceeding, deposition, court ordered hearing or arbitration, or proceeding before any grand jury, referee, or court commissioner and the accurate transcription thereof. Nothing in this section shall require the use of a certified shorthand reporter when not otherwise required by law." (Bus. & Prof. Code § 8017.)
We reject U.S. Legal's illogical suggestion that unless a person or entity performs both the making of the record and the multiple tasks involved in the subsequent " 'accurate transcription,' " that person or entity cannot be engaged in shorthand reporting practice.
We further find no authority supporting U.S. Legal's and the superior court's assumption that the applicable regulations are unenforceable as inconsistent with or exceeding the scope of the authorizing statutes. (Cf. Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 189 ["an administrative regulation may not exceed the scope of authority granted by or be inconsistent with the statute pursuant to which it is promulgated"].) Business and Professions Code section 8040, cited by U.S. Legal, does not supersede the implementing regulations; rather, it aims to ensure that in a shorthand reporting corporation "[the] corporation and all of its shareholders, officers, directors, and employees rendering professional services who are certified shorthand reporters are in compliance with the Moscone-Knox Professional Corporation Act, this article, and all other statutes and regulations now or hereafter enacted or adopted pertaining to that corporation and the conduct of its officers." (Italics added.) We see no inconsistency.
Furthermore, one of the legislative mandates to the CRB was to "adopt, amend, or repeal rules and regulations which are reasonably necessary to carry out the provisions of this chapter" pertaining to shorthand reporters. (Bus. & Prof. Code, § 8007, subd. (d).) The Board is also expressly authorized to "formulate and enforce rules and regulations to carry out the provisions" of the article pertaining to shorthand reporting corporations. (Bus. & Prof. Code, § 8047.) Title 16, section 2403, of the California Code of Regulations does not contravene any express or implied purpose by listing acts composing the timely and accurate copying of the transcript and its delivery to the necessary recipients.
That these subordinate tasks do not separately require a license is irrelevant. To the contrary, California Code of Regulations title 16, section 2475, which lists the obligations inherent in the CRB's professional standards of practice, applies to any "business that renders . . . shorthand reporting services . . . ." The suggestion that those tasks cannot constitute a part of professional service is illogical and unconvincing.
U.S. Legal insists, however, that it is not subject to the Act because it is not a "professional corporation" within the meaning of section 13401, subdivision (b), as none of its officers, directors, or employees is a licensed natural person who renders "professional services" within the meaning of section 13401, subdivision (a). In other words, because it is not authorized to perform professional services in California, it is not liable for "unprofessional conduct" when it actually engages in those services. Likewise, U.S. Legal argues that it is not subject to the prohibitions on "unprofessional conduct" in Business and Professions Code section 8046, because it is not a "shorthand reporting corporation"—again because it is not authorized to render professional services (as defined in section 13401, subdivision (a)). U.S. Legal thus appears to suggest that it is free to render, provide, or perform services without the obligation to adhere to the restrictions applicable to those individuals and corporations that are authorized to render those same services. Thus, for example, its violation of the requirement that each shareholder and director be licensed in the profession is the very reason it avoids liability for that very violation. Such circular reasoning to evade this state's laws and regulations is, at a minimum, unpersuasive.
Business and Professions Code section 8046 states: "A shorthand reporting corporation shall not do or fail to do any act the doing of which or the failure to do which would constitute unprofessional conduct under any statute, rule or regulation now or hereafter in effect which pertains to shorthand reporters or shorthand reporting. In conducting its practice it shall observe and be bound by such statutes, rules and regulations to the same extent as a person holding a license under this chapter." Section 8025 of this statute also refers to "unprofessional conduct in or directly related to the practice of shorthand reporting," explaining that "unprofessional conduct" in this context "includes, but is not limited to, acts contrary to professional standards concerning confidentiality; impartiality; filing and retention of notes; notifications, availability, delivery, execution and certification of transcripts; and any provision of law substantially related to the duties of a certified shorthand reporter." (Bus. & Prof. Code § 8025, subd. (d).)
U.S. Legal calls attention to a 2012 decision in which a different judge of the superior court ruled that U.S. Legal was not subject to the jurisdiction of the CRB, because the Board's authority does not extend to foreign corporations that do not meet the definition of "foreign professional corporation." That determination is not before us, however, and we express no opinion about it.
In 2017 the Legislature passed Assembly Bill 1660, which was to take effect January 1, 2019 as section 8050 of the Business and Professions Code. That new statute would have ensured that foreign corporations comply with this state's laws and regulations by making those provisions applicable to entities that provide shorthand reporting services or contract with a California resident to provide shorthand reporting in this state. Had the governor not vetoed the legislation, U.S. Legal clearly would have been compelled to abide by the same conditions as any authorized shorthand reporting corporation currently operating in this state. In 2018 the Legislature passed Assembly Bill 2084 (effective January 1, 2019) to similarly regulate any entity that contracts with a CSR to report or transcribe deposition testimony. The Governor signed that legislation on September 21, 2018, thereby adding section 8050 to the Business and Professions Code.
Hall v. Court Reporters Bd. of Cal. (2002) 98 Cal.App.4th 633 (Hall), which the trial court felt "obligated to follow," does not compel a different conclusion. In that case Hall, a CSR, subcontracted with other CSRs and then failed to pay them for the shorthand reporting services they had performed on his behalf. On appeal from the denial of his petition for writ of mandate Hall contended, and the appellate court agreed, that failing to pay the subcontractors was not conduct that fell within the disciplinary jurisdiction of the CRB. The court focused on the scope of "unprofessional conduct in the practice of shorthand reporting," the language used in former Business and Professions Code section 8025, subdivision (d), until 2006, when Senate Bill 658 took effect. Since then, Business and Professions Code section 8025, subdivision (d), has encompassed unprofessional conduct in or directly related to the practice of shorthand reporting. (Stats. 2005, ch.658, § 31, p. 5219.) Because the "practice of shorthand reporting"—as defined in section 8017—did not include "business or accounting practices," and because there was no evidence in the "limited and undisputed factual record" that Hall's clients received significantly delayed or compromised services, his failure to pay the subcontractors was not "unprofessional conduct" as narrowly defined at the time the court was evaluating that conduct. (Hall, supra, at pp. 639-640.)
This case has nothing to do with contracts between one or more CSRs and U.S. Legal. It does not directly implicate the jurisdiction of the CRB. And U.S. Legal is not insulated by the less restrictive definition of "unprofessional conduct" that was tested in Hall. The trial court misplaced its reliance on that 2002 decision. 5. Plaintiff's Injury
As noted, in order to establish unfair competition a private plaintiff must also prove that he or she suffered an "injury in fact and has lost money or property as a result of the unfair competition." (Bus. & Prof. Code § 17204.) That showing allows the plaintiff to seek an injunction as a remedy. (Bus. & Prof. Code § 17535.) The "lost money or property" element was added by Proposition 64 in 2004 to limit private standing "to those actually injured by a defendant's business practices and to curtail the prior practice of filing suits on behalf of ' "clients who have not used the defendant's product or service, viewed the defendant's advertising, or had any other business dealing with the defendant . . . ." ' " (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 788; see also Kwikset, supra, 51 Cal.4th at p. 317 [standing limitation of Prop. 64 was intended to deter " 'shakedown lawsuits' " by unaffected parties, while ensuring that actual victims can still sue and enjoin unfair competition].) To satisfy the "injury in fact" element, a plaintiff is required to establish (1) that he or she personally suffered "some form of economic injury" and (2) that the economic injury was caused by the alleged unfair competition. (Kwikset, supra, at p. 323.) Thus, "[i]f a party has alleged or proven a personal, individualized loss of money or property in any nontrivial amount, he or she has also alleged or proven injury in fact." (Id. at p. 325.)
Business and Professions Code § 17204, as amended by Prop. 64, as approved by voters, Gen. Elec. (Nov. 2, 2004) § 3.
Citing Kwikset, plaintiff asserts that an "identifiable trifle" was sufficient to show injury in fact. She is mistaken. Our Supreme Court approved that standard as the quantum of harm needed to show standing to sue, not proof at trial. (Kwikset, supra, 51 Cal.4th at p. 324; see also Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 561 [allegation of identifiable trifle of injury sufficient to show standing and thus withstand demurrer].) Instead, plaintiff was required to prove, by a preponderance of the evidence, her allegation that she suffered economic injury in the form of "lost clients and revenue, diminished market share, and time and money spent on marketing and client retention that Plaintiff would not otherwise have incurred without Defendant's unlawful business acts and practices."
In her trial brief plaintiff asserted that U.S. Legal's "unlawful presence in the marketplace" resulted in her loss of sales and market share of the court reporting business. She specifically identified Laughlin as one law firm from which she lost business, after U.S. Legal became the "preferred provider" for all cases the law firm was handling on behalf of Argonaut. The parties stipulated that Laughlin had been plaintiff's client from approximately 1994 to April 2014, and she had provided deposition services to Laughlin when Argonaut was involved in a case handled by the law firm; but beginning in November 2011, when U.S. Legal became Argonaut's preferred vendor, U.S. Legal provided the CSRs to Laughlin for depositions in which Argonaut was a party. At that point, plaintiff argued, her Argonaut-financed work for the law firm "came to an abrupt end."
At trial the superior court focused on stipulated fact #22, which stated, "Defendant does not require clients to enter into a contract to select or use CSRs from a pre-approved list used by Defendant; indeed, a client is free to choose any CSR with whom it wishes to work if that CSR agrees to independently contract with Defendant at the rates set by Defendant." In its ruling the court relied on this fact in finding that "[w]ithout any evidence of a client's expressed desire to work with Plaintiff, which was denied by Defendant, the court will not assume that Plaintiff suffered any economic loss due to Defendant's business practice."
The court also expressed this view at trial, querying, "But the point here, if Argonaut or Laughlin Falbo never asked for Holly, what did she lose? . . . [If] they didn't ask for her, then she didn't lose anything."
The court's reasoning clearly was flawed. U.S. Legal's clients are free to choose any CSR they wish, but the CSR must have agreed to be an independent contractor for U.S. Legal at the compensation rates set by U.S. Legal. While recognizing the client's preferences, the court disregarded those of plaintiff, as if the only way plaintiff could have obtained deposition work was to subcontract with U.S. Legal. There is no evidence to support such an assumption. Plaintiff is a competitor of U.S. Legal, not simply a subcontractor who relies on U.S. Legal for court reporting assignments. She should not be compelled to mitigate her injury by working for the very company that is causing that harm, much less a company that she believes is violating the law. To obligate plaintiff, an independent professional, to sign on with U.S. Legal rather than subcontract with another court reporting firm—or contract directly with law firms and other clients—would contravene the precepts of free enterprise and would certainly accomplish nothing toward abatement of unlawful business practices.
The trial court based its decision on the stipulated facts, along with exhibits containing deposition testimony, declarations, and other evidence. As discussed above, it relied on an erroneous rationale for determining that plaintiff had suffered no economic injury. But it also stated expressly that it had found "no evidence to substantiate her contention" that she had suffered economic injury. When, as here, a party has requested a statement of decision after a bench trial, that party must object to ambiguous, omitted, or erroneous findings in order to avoid the inference on appeal that the trial court "made every implied factual finding necessary to uphold its decision." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48 (Fladeboe); accord, Axis Surplus Ins. Co. v. Glencoe Ins. Ltd. (2012) 204 Cal.App.4th 1214, 1222.) This "doctrine of implied findings" is "a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error." (Fladeboe, supra, at pp. 58, 59.) "If the party challenging the statement of decision fails to bring omissions or ambiguities in it to the trial court's attention, then, under Code of Civil Procedure section 634, the appellate court will infer [that] the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues." (Id. at pp. 59-60, 61-62.)
We invited the parties to submit supplemental briefs on the applicability of the doctrine of implied findings to this case. Both responded with articulate statements of their positions on this theory as applied to the court's findings on the issue of economic injury.
Plaintiff correctly points out that the court did not entirely overlook the issue of "damage"; it did make the ultimate finding on that essential element: plaintiff "could not have suffered any damage due to Defendant's alleged illegal actions." (See Almanor, supra, 246 Cal.App.4th at p. 771 () [doctrine of implied findings applicable where court set forth ultimate findings on contract damages but defendants failed to request specific findings on its damages theory].) As in Almanor, plaintiff did not waive or forfeit her challenge to the court's conclusion on this element. The court's error was in drawing an unreasonable inference from an undisputed fact. Nevertheless, the finding remained that plaintiff did not prove that she suffered the injury she claimed. For that finding the court did not cite facts supporting that conclusion, other than the immaterial fact regarding the preferences of U.S. Legal's clients.
The record before us contains no indication that plaintiff requested clarification or additional findings to support the court's ultimate conclusion that plaintiff suffered no "damage." Had she done so, the court could have explained the factual basis of its finding that "there is no evidence to substantiate her contention" beyond the irrelevant fact that U.S. Legal clients had not requested her services. (Cf. Almanor, supra, 246 Cal.App.4th at p. 771 [presuming necessary factual findings to support ultimate finding on damages].) Accordingly, absent a responsive challenge or request for clarification by plaintiff, we must infer that the court examined the evidence before it and rejected plaintiff's assertion that she suffered economic harm due to U.S. Legal's very "presence in the marketplace."
In her supplemental brief plaintiff takes issue with the premise of this inference. In contrast to Almanor, she argues, here the court "clearly and unambiguously set out the underlying subsidiary facts that it believed . . . supported [the] ultimate finding" of no injury. Consequently, "there were no omitted fact findings, ultimate or subsidiary," of which she could have requested inclusion or clarification. She emphasizes the procedural posture of this case, characterizing the court's ruling as based on only stipulated facts; rather than resolving issues arising from disputed facts, the court "simply ruled on the legal consequences of the undisputed facts that the parties had submitted to it."
We read the ruling differently. In order to succeed on her claim, plaintiff had to show that the facts derived from the stipulations and discovery responses added up to economic injury. In the trial court's view, she was unable to make this showing.
Plaintiff did testify in her deposition that she is paid less when she works as a subcontractor for a court reporting firm, but she did not quantify this amount as attributable to U.S. Legal. She further offered evidence that following U.S. Legal's engagement as the preferred provider for cases in which Laughlin represented Argonaut, she lost business. But the court apparently found this evidence unconvincing, either because plaintiff was not credible on these points or because she did not incur a "nontrivial" drop in revenue attributable to U.S. Legal. (Kwikset, supra, 51 Cal.4th at p. 325.)
The parties stipulated that since 2009, the majority of plaintiff's work was performed through court reporting companies. In her deposition testimony plaintiff explained that as an independent contractor for these companies she received only a percentage of the amount that court reporting companies charge law firms. In addition, when she worked directly for a law firm, she was able to charge for more services, such as delivery, exhibits, and handling, along with a per-diem fee. These were services she did not get paid for when working for court reporting companies. Plaintiff does not appear to have relied on these facts to support her claim that work for which she previously had competed successfully was unfairly diverted to U.S. Legal.
Plaintiff's declaration does not compel a contrary finding. During discovery she produced approximately 740 invoices for depositions between January 2008 and early May 2014; of those, 440 were work performed for Laughlin, 44 in 2012 alone. Of those 440, however, only three were for Argonaut depositions, all taken between August 23, 2011 and November 8, 2011. Plaintiff averred that these three were all the invoices she possessed for Argonaut work she had performed for Laughlin. During her deposition she stated that she had experienced a reduction in revenue for the past three years, but she did not attribute that reduction specifically to U.S. Legal; instead, she said it was caused partly by the recession and partly by "other court reporting companies"—and specifically, to "preferred vendor" relationships between those companies and their clients. She did not specifically name U.S. Legal as the source—or even as a primary or major source—of this reduction.
On this record, we cannot say that the evidence "compels a finding in favor of [plaintiff] as a matter of law." (Shaw, supra, 170 Cal.App.4th at p. 279.) In other words, we cannot say that the undisputed evidence of injury caused by U.S. Legal is "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding" on this element. (Roesch, supra, 24 Cal.2d at p. 571.) Accordingly, setting aside the court's misguided deference to the preferences of law firms contracting with U.S. Legal, we must infer that the court rejected all of plaintiff's factual assertions supporting her allegation of economic harm due to U.S. Legal's very "presence in the marketplace." Because we must uphold the trial court's finding that plaintiff failed to meet her burden of proof on this element, it is unnecessary to address the parties' dispute over whether an injunction was warranted on these facts.
The judgment is affirmed. The parties shall bear their own costs on appeal.
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________