Filed 5/21/13 San Diego Fire Victims Lawyers v. Community Assistance Recovery CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO FIRE VICTIMS LAWYERS et D061182
al.,
Plaintiffs and Respondents,
(Super. Ct. No. 37-2011-91440-CU-
v. BT-CTL)
COMMUNITY ASSISTANCE RECOVERY,
INC., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Timothy B.
Taylor, Judge. Reversed.
Connors & Associates, G. Patrick Connors III, for Defendants and Appellants.
Dabney Finch for Plaintiffs and Respondents.
Community Assisting Recovery, Inc. (CARe)1 and George Kehrer appeal from the
trial court's order denying their special motion to strike on the ground that this action is a
strategic lawsuit against public participation under Code of Civil Procedure section
425.16 (commonly known as the anti-SLAPP statute, hereafter section 425.16). As we
will explain, we conclude that the trial court erred in denying the special motion to strike,
and we therefore reverse.
I
FACTUAL AND PROCEDURAL BACKGROUND
CARe is a nonprofit corporation that provides assistance to disaster victims.
Kehrer is CARe's executive director. According to Kehrer, "CARe's mission is to help
rebuild disaster damaged communities by providing the most up-to-date information
regarding the dynamic recovery issues as determined by the needs of the impacted area.
Through free classes at schools, churches and similar donated meeting spaces, and
continual email and post card updates, CARe responds to the immediate information
needs of residents who have requested its information at CARe meetings or through the
CARe website."
CARe provided assistance to victims of the 2007 wildfires in San Diego County,
obtaining funding from local foundations to support its work. The 2007 San Diego
wildfires gave rise to litigation against San Diego Gas & Electric Company (SDG&E),
1 CARe was erroneously sued as Community Assistance Recovery, Inc., rather than
Community Assisting Recovery, Inc.
2
with numerous lawyers involved in the litigation on behalf of different fire victim clients
(the SDG&E Litigation).
One of the group of lawyers involved in the SDG&E Litigation was comprised of
Terry Singleton, Tom Tosdal and Mitchell S. Wagner, who, in different combinations,
did business under the name San Diego Fire Victims Lawyers (SDFVL) or San Diego
Fire Lawyers (SDFL).2 Another law firm involved in the SDG&E Litigation was
Engstrom, Lipscomb & Lack, including attorney Brian Heffernan.
As part of its communications with victims of the 2007 San Diego wildfires,
CARe held informational meetings, which included presentations by attorneys involved
in the SDG&E Litigation, and sent out newsletters containing information about the
litigation.
In May 2011, SDFVL, SDFL, Singleton, Tosdal and Wagner, along with law
firms Hurst & Hurst and the Law Offices of Robert Jackson (collectively, Plaintiffs) filed
suit against CARe and Kehrer under the unfair competition law (UCL) pursuant to
Business and Professions Code section 17200 et seq. The operative first amended
complaint (the complaint) alleges that, in the guise of providing the 2007 San Diego
wildfire victims with information about the SDG&E Litigation, CARe and Kehrer were
actually soliciting business for Heffernan in exchange for a referral fee or payment.
Specifically, the complaint alleges that Kehrer would conduct "public and private
2 Specifically, the allegation is that Singleton, Tosdal and Wagner collectively did
business as SDFVL; and Singleton and Wagner collectively did business as SDFL.
3
meetings in which [he] would endorse[] and recommend[] to those in attendance that they
hire Attorney Heffernan or his Law Firm of Engstrom, Lipscomb & Lack," and that
CARe sent written communications to 2007 San Diego wildfire victims recommending
Heffernan's services and setting forth testimonials from satisfied clients of Heffernan.
The written communications at issue are attached as exhibits to the complaint.
One exhibit to the complaint is a postcard mailed to victims of the 2007 San Diego
wildfires, with the heading "SDG&E Lawsuit Update, Year 4." The postcard stated:
"As we head into the 4th year of the SDG&E lawsuit, CARe has seen
progress. While two large groups represented by attorney Brian Heffernan
have received sizable awards, many of you are still in litigation with
insufficient funds to rebuild your home and lives. []Large Guejito, Witch
Creek and Rice Awards were recently received by a second group of fire
victims represented by attorney Brian Heffernan. Many reported they had
only joined the lawsuit a few months ago and were relieved with how
quickly and effortlessly their claims won awards — with no depositions, or
appearances at mediation or trial AND at minimal costs! []About 350 cases
are completed — the majority of these cases are the groups with attorney
Brian Heffernan. []An SDG&E award significantly changes lives! While
some plaintiffs with other attorneys have sporadically settled, homeowners
in the large groups are the only fire victims CARe is aware to consistently
achieve significant awards from SDG&E. Getting your SDG&E claim
fully resolved — seamlessly and with minimal costs — is the true indicator
of what is really occurring 'behind the scenes.' " (Some capitalization
altered.)
The remaining space on the back of the postcard — as well as some of the space
on the front of the card — contained comments from fire victims praising the positive
litigation results they had obtained. Approximately half of the comments mentioned
Heffernan by name:
" 'The best decision I ever made was to switch attorneys. A few months
ago, Brian Heffernan got me more than double the amount of what my
former attorneys said I could possibly get.' "
4
" 'My settlement is remarkable — It changed our family's lives.
Mr. Heffernan's costs were almost nothing, far less than 1%.' "
" 'I appreciate SDG&E's fantastic settlement and Brian Heffernan's high
level of professionalism.' "
" 'The SDG&E award saved my life! And it only took a few months after I
changed attorneys to Mr. Heffernan and he got me a great settlement.' "
Another exhibit to the complaint is a page-long document prepared by CARe, with
the title "SDG&E Litigation Update[:] What is Really Going on with the SDG&E
Litigation?" The document, which the complaint alleges was distributed electronically,
set forth statistics about the lawsuits being handled by the lawyers involved in the
SDG&E Litigation as of April and May 2011. Among other things, the document
showed that out of a total 3,165 cases, 820 were closed and 2,345 were open. It set forth
statistics, derived from SDFVL's court filings, showing that as of April 4, 2011, 190 of
SDFVL's cases had been mediated but not settled, and 396 of SDFVL's cases had not
been submitted to mediation. The document contained a chart showing the percentage of
cases completed for the different lawyers involved in the SDG&E Litigation. According
to the chart, Heffernan was the only attorney who had completed 100 percent of his cases
(368 out of 368). SDFVL had completed 34 percent of their 755 cases. In addition, the
document stated that ". . . Heffernan clients are reporting substantial case resolutions that
reflect sizable compensation for all damage components alleged in the SDG&E
litigation."
A final exhibit to the complaint is an e-mail that Kehrer sent to a single individual,
identified only as "Merilee," apparently as a reply to her "update on the Poway 2007 fire
5
recovery." In the course of the e-mail, Kehrer mentioned that Heffernan is "the attorney
who has received accolades from everyone who has contacted CARe," and he provided
Heffernan's contact information, explaining that "Heffernan is the ONLY attorney who
deliberately avoided the mediation process and developed a procedure that got people
substantial money quickly and without the mediation expenses and headaches."
The complaint contains three causes of action, each of which alleges unfair
business practices under Business and Professions Code section 17200 based on different
theories.
The first cause of action alleges a violation of the UCL based on "false,
misleading, or deceptive advertising." Specifically, the first cause of action alleges that
the written communications attached as exhibits to the complaint constituted false and
deceptive advertising on behalf of Heffernan that violated certain statutory provisions
governing legal advertising (Bus. & Prof. Code, § 6157 et seq.). Those provisions
include that an advertisement (1) "shall disclose any business relationship, past or
present, between the member [of the State Bar] and the person paying for the
advertisement" (id., § 6157.3); (2) shall not contain a "guarantee or warranty regarding
the outcome of a legal matter as a result of representation by the member" (id., § 6157.2,
subd. (a)); (3) shall not state "that the member featured in the advertisement can generally
obtain immediate cash or quick settlements" (id., § 6157.2, subd. (b)); (4) if made by
electronic media, must as a whole "not be false, misleading, or deceptive," must be
"factually substantiated" and must contain certain disclaimers when the advertisement
portrays a result in a particular case or cases (id., §§ 6158, 6158.3).
6
The second cause of action arises under the UCL based on the theory that CARe
and Kehrer were acting as a lawyer referral service without complying with the legal
requirements for such a service in violation of Business and Professions Code section
6155.3 As alleged in the second cause of action, CARe and Kehrer acted as a lawyer
referral service because they made the positive statements about Heffernan identified in
the complaint in exchange for payment from Heffernan.
The complaint's third cause of action alleges a violation of the UCL on the basis
that CARe and Kehrer unlawfully solicited business for Heffernan in violation of
Business and Professions Code sections 6151, subdivision (a) through 6154,
subdivision (b).4
3 As established in Business and Professions Code section 6155, to operate lawfully,
an attorney referral service must register with the State Bar of California and meet certain
minimum standards.
4 Under Business and Professions Code section 6152, subdivision (a)(1), it is
unlawful for "[a]ny person, in an individual capacity or in a capacity as a public or
private employee, or for any firm, corporation, partnership or association to act as a
runner or capper for any attorneys or to solicit any business for any attorneys in and about
the state prisons, county jails, city jails, city prisons, or other places of detention of
persons, city receiving hospitals, city and county receiving hospitals, county hospitals,
superior courts, or in any public institution or in any public place or upon any public
street or highway or in and about private hospitals, sanitariums or in and about any
private institution or upon private property of any character whatsoever." A runner or
capper is "any person, firm, association or corporation acting for consideration in any
manner or in any capacity as an agent for an attorney at law or law firm, whether the
attorney or any member of the law firm is admitted in California or any other jurisdiction,
in the solicitation or procurement of business for the attorney at law or law firm." (Id.,
§ 6151, subd. (a).)
7
CARe and Kehrer filed a special motion to strike the complaint under the anti-
SLAPP statute. (§ 425.16.) The special motion to strike argued that the complaint arose
from activity protected by the anti-SLAPP statute because it arose from "any written or
oral statements or writing made in connection with an issue under consideration or
review by a . . . judicial body" (Code Civ. Proc., § 425.16, subd. (e)(2)) in that each cause
of action was based on CARe and Kehrer's statements about the performance of counsel
in the pending SDG&E Litigation. The trial court denied the motion. CARe and Kehrer
filed a notice of appeal. (Id., § 904.1, subd. (a)(13).)
II.
DISCUSSION
A. Standard of Review
"Review of an order granting or denying a motion to strike under section 425.16 is
de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits
. . . upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we
neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept
as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's
evidence only to determine if it has defeated that submitted by the plaintiff as a matter of
law.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
B. Applicable Legal Standards
The anti-SLAPP statute 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 Constitution or the California Constitution in connection with a public
8
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).) "The analysis of an anti-SLAPP motion thus involves
two steps. 'First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one "arising from" protected activity. (§ 425.16,
subd. (b)(1).) If the court finds such a showing has been made, it then must consider
whether the plaintiff has demonstrated a probability of prevailing on the claim.'
[Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—
i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a
SLAPP, subject to being stricken under the statute.' " (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 819-820 (Oasis West).)
Section 425.16, subdivision (e) specifies the type of activity protected by the anti-
SLAPP statute. As relevant here, an " 'act in furtherance of a person's right of petition or
free speech . . . in connection with a public issue' includes: . . . (2) any written or oral
statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by
law." (Ibid.) Based on this provision, " 'statements, writings and pleadings in connection
with civil litigation are covered by the anti-SLAPP statute, and that statute does not
require any showing that the litigated matter concerns a matter of public interest.' "
(Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261 (Neville).)
"[T]he statutory phrase 'cause of action . . . arising from' means . . . that the
defendant's act underlying the plaintiff's cause of action must itself have been an act in
9
furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78 (Cotati).) " 'In the anti-SLAPP context, the critical consideration is
whether the cause of action is based on the defendant's protected free speech or
petitioning activity.' " (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) We inquire
whether the activity giving rise to the complaint constitutes " '[t]he allegedly wrongful
and injury-producing conduct . . . that provides the foundation for the claim[s]' " asserted
in the lawsuit. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264,
1272.)
C. The Complaint Arose from Protected Activity
Turning to the first prong of the anti-SLAPP analysis, CARe and Kehrer argue that
because the complaint is based on statements about the performance of counsel in the
SDG&E Litigation, the complaint arises from "any written or oral statement or writing
made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law."
(§ 425.16, subd. (e)(2).)
"[A] statement is 'in connection with' litigation under section 425.16, subdivision
(e)(2) if it relates to the substantive issues in the litigation and is directed to persons
having some interest in the litigation," even though it is not made in the court proceeding
itself. (Neville, supra, 160 Cal.App.4th at p. 1266.) Thus, for example as relevant here, a
litigation update sent by a homeowner's association to inform members of the association
of pending litigation was a statement made in connection with a judicial proceeding
within the meaning of the anti-SLAPP statute. (Healy v. Tuscany Hills Landscape &
10
Recreation Corp. (2006) 137 Cal.App.4th 1, 5-6.) Similarly, a company's e-mail to a
small group of customers, informing them of the court's rulings and favorable imposition
of sanctions in litigation against the company's competitor fell within the scope of
protected activity in section 425.16, subdivision (e)(2) because it was " 'in connection
with an issue under consideration or review by a . . . judicial body' " in connection with
litigation. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043,
1050-1051, 1055-1056 (Staff Pro).) Equally relevant here, a complaint alleging improper
solicitation of another attorney's client in a pending litigation by promising a more
favorable outcome in the litigation is subject to the protections of the anti-SLAPP statute
because such claims arise from statements made in connection with issues before a
judicial body. (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 (Taheri).)
Specifically, the complaint in Taheri arose from activity protected under the anti-SLAPP
statute in that it alleged that the defendant improperly solicited the plaintiff's client by
"promising 'unobtainable and ethically improper litigation objectives' " in a pending
litigation. (Taheri, at pp. 485-486.) Taheri stated that because the complaint's claims
arose "directly from communications between [the soliciting attorney and the potential
client] about the pending lawsuits against [the client]," it was "difficult to conjure a
clearer scenario than the case before us of a lawsuit arising from protected activity." (Id.
at p. 489.)
Here, the claims against CARe and Kehrer fall squarely within this line of case
law. First, like the attempted client solicitation in Taheri, supra, 160 Cal.App.4th 482,
the complaint's claims arise out of statements that were allegedly made to solicit clients
11
who were already represented by other lawyers in a pending litigation by making
promises about a more favorable outcome in the litigation and criticizing current
counsel's performance. Second, like the litigation updates in Healy, supra, 137
Cal.App.4th 1, and Staff Pro, supra, 152 Cal.App.4th 1043, the complaint bases its
claims against CARe and Kehrer on statements providing updates about pending
lawsuits, namely the SDG&E Litigation, and, as required, those statements — made to
the fire victims — were directed at "persons having some interest in the litigation"
(Neville, supra, 160 Cal.App.4th at p. 1266). The complaint in the instant action
therefore arises from protected activity because it arises from statements "made in
connection with an issue under consideration or review by a . . . judicial body."
(§ 425.16, subd. (e)(2).)5
Plaintiffs present two alternative arguments as to why the complaint does not arise
from protected activity. As we will explain, neither has merit.
5 Plaintiffs contend that a statement is "made in connection with an issue under
consideration or review by a . . . judicial body" within the meaning of the anti-SLAPP
statute (§ 425.16, subd. (e)(2)) only if the statements concern the "issues being litigated"
and "allegations of liability." As we understand the argument, Plaintiffs contend that to
constitute protected activity, the statements must comment on the legal issues presented
in the litigation or the relative merits of the parties' litigation positions. However, the
statutory language does not support such a restrictive reading as it requires only that the
statement be "in connection with" an issue in litigation. (Ibid.) Further, Taheri, supra,
160 Cal.App.4th 482, undermines Plaintiffs' position because statements in that case were
protected activity even though they involved solicitation of a client through promises of a
more favorable outcome under a different attorney.
12
First, Plaintiffs argue that although the complaint identifies CARe and Kehrer's
statements about the SDG&E Litigation, the complaint does not arise from those
statements.
To meet the requirement that a cause of action arise from protected activity, "the
defendant's act underlying the plaintiff's cause of action must itself have been an act in
furtherance of the right of petition or free speech." (Cotati, supra, 29 Cal.4th at p. 78.)
"The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of
action but, rather, the defendant's activity that gives rise to his or her asserted liability —
and whether that activity constitutes protected speech or petitioning." (Navellier v.
Sletten (2002) 29 Cal.4th 82, 92.) Here, the exclusive activity identified as the basis for
the complaint's three causes is CARe and Kehrer's acts of making statements praising
Heffernan's result in the SDG&E Litigation. As we have explained, that activity falls
squarely under the anti-SLAPP statute because it meets the definition of protected
activity as set forth in section 425.16, subdivision (e)(2).
Plaintiffs attempt to recharacterize the activity on which the complaint is based,
contending that it is based not on CARe and Kehrer's statements about Heffernan but
instead on the act of "funneling clients away from one attorney group to another law
firm." The trial court took a similar view of the case, stating in its ruling that the
gravamen of the complaint was "an alleged scheme to steal clients away from
[P]laintiffs," rather than "defendants' speech."
This view of the case improperly confuses the activity on which the complaint is
based (making statements about the SDG&E Litigation favorable to Heffernan) with the
13
alleged motive for that activity (stealing clients on behalf of Heffernan). Case law is clear
that an analysis under the anti-SLAPP statute focuses on the activity itself, not the
motive. "[C]auses of action do not arise from motives; they arise from acts." (Wallace v.
McCubbin (2011) 196 Cal.App.4th 1169, 1186.) The anti-SLAPP statute "applies to
claims 'based on' or 'arising from' statements or writings made in connection with
protected speech or petitioning activities, regardless of any motive the defendant may
have had in undertaking its activities, or the motive the plaintiff may be ascribing to the
defendant's activities." (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269.)
Thus, "the defendant's purported motive in undertaking speech and petitioning activities
is irrelevant in determining whether the plaintiff's cause of action is based on those
activities." (Id. at p. 271.) In this case, the complaint's three causes of action are based
on the statements that CARe and Kehrer made about the performance of the attorneys in
the SDG&E Litigation. It is irrelevant to our analysis whether those statements were
made as part of a scheme to steal clients.
Second, Plaintiffs argue that the activity forming the basis of the complaint is not
protected by the anti-SLAPP statute because it is "illegal." Specifically, Plaintiffs point
to case law establishing that only a valid exercise of constitutional rights are protected by
the anti-SLAPP statute, which means that illegal acts are excluded from protection.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 321 (Flatley) ["the basic purpose of the anti-
SLAPP statute [is] to prevent the chilling of 'the valid exercise of the constitutional rights
of freedom of speech and petition for the redress of grievances' 'through abuse of the
judicial process,' " italics added].) Plaintiffs argue that because they have alleged that
14
CARe and Kehrer acted illegally by purportedly soliciting clients for Heffernan, the anti-
SLAPP statute does not apply. We disagree.
Illegal activity will bar the protection of the anti-SLAPP statute only when "the
defendant concedes, or the evidence conclusively establishes, that the assertedly protected
speech or petition activity was illegal as a matter of law." (Flatley, supra, 39 Cal.4th at
p. 320, italics added.) "[T]he showing required to establish conduct illegal as a matter of
law—either through defendant's concession or by uncontroverted and conclusive
evidence—is not the same showing as the plaintiff's second prong showing of probability
of prevailing." (Ibid., italics added.)
The exception to the anti-SLAPP statute for activity illegal as a matter of law does
not apply here because the complaint does nothing more than allege improper activity by
CARe and Kehrer, and the facts are heavily disputed. As we have explained, the
illegality exception applies only when the facts that would establish improper activity are
uncontroverted or illegal activity is conceded. (Flatley, supra, 39 Cal.4th at p. 320.)
CARe and Kehrer strongly deny that they had any financial relationship with Heffernan
or were acting to solicit business on his behalf, and they have submitted evidence, which
if credited by the jury, would support a finding that that none of CARe's income came
from Heffernan. This is simply not a case where the defendant has engaged in conduct
that is either concededly or indisputably illegal as matter of law. On the contrary, the
legality of CARe and Kehrer's conduct is an issue that is in serious dispute.
In sum, CARe and Kehrer have met their burden to make a threshold showing that
each of the causes of action in the complaint arises from activity protected under the anti-
15
SLAPP statute, and they have accordingly satisfied their burden on the first prong of the
anti-SLAPP analysis.
D. On the Second Prong of the Anti-SLAPP Analysis, Plaintiffs Did Not Demonstrate
a Probability of Prevailing
Having determined that CARe and Kehrer satisfied their burden on the first prong
on the anti-SLAPP analysis, we now turn to the second prong.
"To satisfy the second prong, 'a plaintiff responding to an anti-SLAPP motion
must " 'state[] and substantiate[] a legally sufficient claim.' " [Citation.] 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." ' " (Oasis West, supra, 51 Cal.4th at
p. 820.) In short, a plaintiff must " 'demonstrate[] a probability of prevailing on the
claim.' " (Ibid.)
CARe and Kehrer contend that Plaintiffs have not demonstrated a probability of
prevailing on their claims — each of which is asserted under the UCL pursuant to
Business and Professions Code section 17200 — because they have submitted no
evidence to satisfy the standing requirements for bringing a claim under the UCL. As we
will explain, we agree.
A private action for relief under the UCL can be brought only "by a person who
has suffered injury in fact and has lost money or property as a result of the unfair
competition." (Bus. & Prof. Code, § 17204.) Based on this provision, our Supreme
Court has established that to have standing in an action under the UCL, a plaintiff "must
16
demonstrate some form of economic injury." (Kwikset Corp. v. Superior Court (2011) 51
Cal.4th 310, 323 (Kwikset).) In a UCL action, " 'each element [of standing] must be
supported in the same way as any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required at the successive stages of
the litigation.' " (Id. at p. 327.)6
When seeking to meet its burden for the second prong of the anti-SLAPP analysis,
"a plaintiff opposing an anti-SLAPP motion cannot rely on allegations in the complaint,
but must set forth evidence that would be admissible at trial." (Overstock.com, Inc. v.
Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) Therefore, to meet its burden
to demonstrate a probability of prevailing on the merits in an action brought under the
UCL, a plaintiff opposing an anti-SLAPP motion must submit admissible evidence to
establish standing by showing that it suffered injury in fact and lost money or property as
a result of the unfair competition. (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th
664, 690 [in analysis under the second prong of the anti-SLAPP statute, concluding that
"[p]laintiffs' UCL claim . . . fails because they have not demonstrated they 'suffered
injury in fact and [have] lost money or property as a result of the unfair competition' "].)
6 The standing requirement exists in a UCL action regardless of whether the
plaintiff is seeking a type of relief other than restitution. (Kwikset, supra, 51 Cal.4th at
p. 337.) Further, we emphasize that although Plaintiffs cite other statutes as part of their
UCL claims in an attempt to establish unfair and illegal business practices, their causes of
action are brought exclusively under the UCL, which includes a standing requirement,
regardless of whether the underlying statutes Plaintiffs cite contain such a requirement.
17
In this case, the complaint alleges that Plaintiffs suffered economic injury due to
CARe and Kehrer's purported solicitation of clients on behalf of Heffernan. According to
the complaint, the purported unlawful solicitation "result[ed] in Plaintiffs' suffering injury
and lost money and property, including loss of new Fire Victim clients, loss of actual
clients, loss of good will of current clients and the incurring of additional costs."
However, Plaintiffs submitted no evidence to support those allegations when opposing
the special motion to strike. Despite Plaintiffs' lengthy evidentiary submissions for their
opposition to the special motion to strike, and despite Plaintiffs' lack of economic injury
being raised by CARe and Kehrer as one of the grounds for their motion, Plaintiffs are
unable to point to any evidence supporting the complaint's allegations that they lost
money or property as a result of CARe and Kehrer's alleged wrongdoing. Therefore,
Plaintiffs have not demonstrated the standing necessary to pursue and prevail on any of
the causes of action in the complaint, all of which are brought under the UCL. Plaintiffs
accordingly have not met their burden under the second prong of the anti-SLAPP analysis
to demonstrate a probability of prevailing on their claims.
18
DISPOSITION
The order denying the special motion to strike is reversed, and the trial court is
directed to enter a new order granting the motion and to entertain a motion for fees and
costs pursuant to section 425.16, subdivision (c)(1). Appellants are awarded costs on
appeal.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.
19