Ross v. Seyfarth Shaw LLP

Filed 9/29/23 Certified for Publication 10/20/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CRAIG ROSS et al., B312337
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20SMCV00587)
v.

SEYFARTH SHAW LLP et al.,

Defendants and Appellants.

APPEAL from an order and judgment of the Superior Court of
Los Angeles County, Harry Jay Ford, III, Judge. Affirmed in part
and reversed in part.

Craig Ross and Natalie Operstein, in pro. per., for Plaintiffs
and Appellants.

Jassy Vick Carolan, Jean-Paul Jassy and Jeffrey A. Payne for
Defendants and Appellants.
_________________________________
 This is an appeal from an order granting defendants Seyfarth
Shaw LLP (Seyfarth) and Colleen Regan a portion of the fees they
requested pursuant to Code of Civil Procedure section 425.161 (the
anti-SLAPP2 statute) and resulting judgment. The trial court
awarded the fees without finally ruling on defendants’ anti-SLAPP
motion to strike—it issued a tentative ruling granting in part and
denying in part the motion, and plaintiffs immediately thereafter
dismissed their complaint. Plaintiffs Craig Ross and Natalie
Operstein appeal the fee award on three general theories. First, the
anti-SLAPP statute did not apply to their claims, and, in any event,
their claims were meritorious. Second, the fees should not have
been awarded because defendants did not meet the fee award
requirements of subdivision (c)(1) or because judicially created
exceptions to their right to seek a fee award applied. Third, even if
fees were awardable, the amount awarded was unreasonable.
Defendants cross-appeal. They argue the trial court should
have awarded all the fees they requested, not just a portion of those
fees, because all of plaintiffs’ claims were based on conduct
protected by the anti-SLAPP statute, no exceptions applied, and
their request was reasonable.
We agree with defendants that their motion to strike was
wholly meritorious and their fee request therefore should not have
been reduced on the grounds that they would have prevailed only
partially on their motion. We disagree with plaintiffs that the trial

1 Undesignated statutory references are to the Code of Civil
Procedure. Undesignated references to statutory subdivisions are
to section 425.16.
2 This acronym stands for “ ‘strategic lawsuit against public
participation.’ ” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 882, fn. 2 (Wilson).)

2
court erred in the ways they claim. We therefore affirm in part and
reverse in part and remand for further proceedings consistent with
this opinion.
BACKGROUND
Plaintiff Operstein was employed as a professor of linguistics
at California State University, Fullerton (CSUF), which is part of
the California State University (CSU) system. Plaintiff Ross is her
husband.
In the course of Operstein’s employment, she experienced
conflict with her colleagues in the linguistics department. This
prompted Operstein to make various written complaints. In early
2013, she wrote to the chair of the department about perceived
mistreatment by a peer. By May 2014, the matter had escalated to
human resources. In an e-mail to CSUF’s Director of Faculty &
Staff Labor Relations James Busalacchi, Operstein outlined
perceived “widened and intensified” harassment, including
“retaliatory employment actions, defamation, violations of contract
and university policies, falsification of records, interference with
performance, groundless opposition to a[] . . . request for promotion,
and possible discrimination.” In seeking to bypass a suggested
grievance process, Operstein urged that “[t]he sophisticated matters
of law and the extent of the injury involved will require professional
legal expertise and experience” and offered that “an investigation by
[human resources] may be the most efficient way to proceed.”
CSUF obliged.
In November 2014, CSUF engaged Seyfarth, a law firm, to
investigate Operstein’s accusations against three of her colleagues.
Its letter engaging Seyfarth identified a nonexclusive list of
authorities authorizing the investigation, including CSU Executive
Order 1096, entitled “Systemwide Policy Prohibiting
Discrimination, Harassment and Retaliation Against Employees

3
and Third Parties and Procedure for Handling Discrimination,
Harassment and Retaliation Allegations by Employees and Third
Parties.”
Colleen Regan, at the time a partner at Seyfarth, had primary
responsibility for the investigation. Over the course of about a
month, Regan interviewed Operstein’s three colleagues she accused
of misconduct and another individual. She also attempted to
interview Operstein, but Operstein agreed only to respond to
written questions. Regan submitted three written questions to
Operstein; Operstein responded in writing with an answer to just
one. The unanswered questions were requests for evidence and
witnesses known to Operstein but not yet disclosed to Regan.
Regan provided a summary of her investigation and findings
in an eight-page report dated December 18, 2014 addressed to
Mr. Busalacchi and another CSUF employee. The report concluded
that none of Operstein’s allegations was well founded. As relevant
to Operstein’s allegations that colleagues defamed her when they
called her “uncollegial,” Regan wrote: “I conclude by reading the
email traffic that much of Dr. Operstein’s conduct and email
communication was the opposite of collegial. She regularly accused
her coworkers of violations and infractions of policy, and of
defaming her and violating her rights, all with no apparent basis.”
Regan also wrote: “Every witness interviewed stated that
Dr. Operstein is well-regarded as a scholar and researcher, and
appears to be a fine teacher. However, since the beginning of her
employment at CSUF, she has been difficult for virtually everyone
to work with. At least one administrative support employee has
requested never to work with her again, and many others find her
behavior odd, and even threatening.”
Operstein’s relationship with CSUF further soured shortly
after Seyfarth completed its report. In March 2015, Operstein filed

4
a discrimination charge with the Equal Employment Opportunity
Commission (EEOC) against CSUF. Operstein identified
22 entities, individuals, or classes thereof, as respondents in her
May 2015 EEOC charge, including CSU, certain of its agents and
employees, and defendant Regan. In early May 2015, CSUF
recommended termination of Operstein’s employment purportedly
due to lack of progress towards tenure. Later that month,
Operstein filed another charge of discrimination with the EEOC.
In March 2016, plaintiffs filed a lawsuit in state court against
CSU’s board of trustees. Their complaint contained 20 causes of
action relating to Operstein’s employment and the termination of
her employment.
In June 2017, plaintiffs filed another lawsuit, this one in
federal court. Their second amended complaint in that action
named more than 50 individual defendants, including various high
ranking state officials, CSU officials, and, among others, Regan.
Plaintiffs alleged Regan “conspir[ed] with state officials to
discriminate against plaintiff Operstein and to deprive plaintiffs of
lifetime employment contract [sic] and related benefits and of
liberty resulting from said deprivation.” In June 2018, the federal
court dismissed all of Ross’s claims with prejudice. In July 2019, it
entered summary judgment against Operstein on all her claims.
In April 2020, plaintiffs filed the lawsuit underlying this
appeal. In a complaint solely against Seyfarth and Regan, plaintiffs
asserted 11 causes of action based on defendants’ work for CSUF in
connection with Operstein’s internal complaints of workplace
harassment and related mistreatment.
The factual allegations include the following:
“Defendants entered into contract with CSU to investigate
[Operstein’s] [c]omplaints.”
The scope of defendants’ work was “limited to investigation of

5
[Operstein’s] [c]omplaints and did not include investigation of
Dr. Operstein or her conduct.” (Underscoring omitted.)
Defendants’ contract with CSU was governed by a “CSU
Executive Order governing investigations of discrimination and
harassment complaints” and required them to act as an “impartial
tribunal.” (Underscoring omitted.)
Defendants “assumed said role of an impartial tribunal with
the ulterior intent to make findings in favor of [CSUF] and its
officials” in order to enhance future business prospects.
(Underscoring omitted.)
In conducting their investigation, defendants: “(1) selectively
reviewed evidence in favor of employer and/or employer’s officials;
(2) disregarded and refrained from obtaining and probing evidence
which supported [Operstein’s] [c]omplaints; (3) limited their
interviews to the reported wrongdoers, their subordinates, and
employees who relied on the reported wrongdoers for their
promotions; (4) disregarded and refrained from obtaining and
probing evidence of violation [sic] of Dr. Operstein’s constitutional,
contractual, and/or legal rights by CSU and/or its officials, agents,
and/or employees; (5) disregarded and refrained from obtaining and
probing evidence of potentially retaliatory adverse employment
actions.” (Underscoring omitted.) We refer to these allegations as
the “paragraph 31 allegations” because they were made in
paragraph 31 of plaintiffs’ complaint.
In sum, the complaint alleges that, with improper motive,
defendants (1) conducted a biased and otherwise flawed
investigation of Operstein’s complaints; and (2) prepared and
submitted a report that was defamatory of Operstein.
Defendants responded with a motion to strike plaintiffs’

6
complaint under the anti-SLAPP statute.3 They supported their
motion with declarations and extensive documentary evidence,
including documents they reviewed in the course of their
investigation and the resulting report. Plaintiffs opposed the
motion and submitted declarations and evidence of their own
totaling nearly 3,000 pages. Defendants filed a reply and plaintiffs
filed a 70-page surreply.
On the same day plaintiffs filed their surreply, the trial court
issued a tentative ruling on defendants’ special motion to strike.
The court was inclined to strike three of the 11 causes of action
(“negligent misrepresentation and constructive fraud,”
“defamation,” and “fraud and deceit”) because the allegations
supporting those causes of action “arise solely from protected
activity under . . . subdivisions (e)(1) and (e)(2),” but was inclined to
request further briefing as to whether defendants’ alleged
investigative conduct was protected under the anti-SLAPP statute.
The allegations the trial court viewed as potentially unprotected
were the paragraph 31 allegations as well as an allegation in
paragraph 38 of plaintiffs’ complaint that defendants “harass[ed]
Dr. Operstein with a close to midnight taped deposition.”
Later, on the same day the trial court issued its tentative
ruling, plaintiffs voluntarily requested dismissal of their entire
lawsuit. The court granted their request.
Shortly thereafter, defendants filed their motion for attorney
fees and costs pursuant to subdivision (c). Their ultimate total
request was $79,889. The trial court granted this only in part,
finding defendants would have only partially prevailed on their
special motion to strike. It adopted its tentative ruling that three of

3 Defendants also offered other grounds to strike the complaint
not relevant to this appeal from the trial court’s fee award.

7
the causes of action arose entirely from protected activity. It found
that the other eight causes of action relied in part on investigative
activity that was noncommunicative (the paragraph 31 allegations
and “close to midnight taped deposition” allegation), which the trial
court deemed unprotected. It found the causes of action based on
protected activity unmeritorious because they were privileged
under Civil Code section 47, subdivision (b) and, in any event, time-
barred by the applicable statute of limitations. Accordingly, the
trial court concluded it would have struck the three causes of action
supported exclusively by protected activity and all allegations of
protected activity supporting the other eight causes of action. The
court awarded defendants $63,911—80 percent of the fees they
requested.
Plaintiffs appealed and defendants cross-appealed.
DISCUSSION
1. Overview of the Anti-SLAPP Statute
The anti-SLAPP statute provides a procedure for courts “to
dismiss at an early stage nonmeritorious litigation meant to chill
the valid exercise of the constitutional rights of freedom of speech
and petition in connection with a public issue.” (Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It
broadly applies to causes of action “arising from” specified protected
activity: “any act of [a] 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 issue . . . .”
(§ 425.16, subd. (b)(1).)
Courts must “broadly” construe the anti-SLAPP statute to
further the legislative goals of encouraging participation in matters
of public significance and discouraging abuse of the judicial process.
(§ 425.16, subd. (a).)
To prevail on a special motion to strike a SLAPP suit, the

8
defendant must “make an initial prima facie showing that plaintiff’s
suit arises from an act in furtherance of defendant’s right of petition
or free speech.” (Braun v. Chronicle Publishing Co. (1997)
52 Cal.App.4th 1036, 1042–1043.) If this burden is met, the
plaintiff must establish a reasonable probability he or she will
prevail on the merits. (Wilcox v. Superior Court (1994)
27 Cal.App.4th 809, 824–825, disapproved on another ground in
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
68, fn. 5.) In determining whether each party has met its burden,
the trial court must “consider the pleadings, and supporting and
opposing affidavits . . . .” (§ 425.16, subd. (b)(2).)
A “prevailing defendant” on a special motion to strike is
“entitled to recover that defendant’s attorney’s fees and costs.”
(§ 425.16, subd. (c)(1).) The purpose of this provision is to provide
the SLAPP defendant financial relief from the plaintiff’s meritless
lawsuit. (Liu v. Moore (1999) 69 Cal.App.4th 745, 750 (Liu).) The
trial court’s fee award pursuant to this authority is the subject of
this appeal.
2. Prevailing Defendant Standards
Not every defendant who obtains some relief on a special
motion to strike is a “prevailing defendant” for purposes of
recovering fees and costs under the anti-SLAPP statute. A
defendant who is only partially successful will generally be
considered to have prevailed, but not if “the results of the motion
were so insignificant that [he or she] did not achieve any practical
benefit from bringing the motion.” (Mann v. Quality Old Time
Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Whether a partially
successful defendant achieved sufficient benefit to be a “prevailing
party” is left to the discretion of the trial court and reviewed
accordingly. (Ibid.)
When a plaintiff dismisses his or her complaint while the

9
defendant’s special motion to strike is pending, courts agree they
retain jurisdiction to award fees and costs. (See, e.g., Coltrain v.
Shewalter (1998) 66 Cal.App.4th 94, 107 (Coltrain); Liu, supra,
69 Cal.App.4th at p. 752; Tourgeman v. Nelson & Kennard (2014)
222 Cal.App.4th 1447, 1456 (Tourgeman).) This is because
permitting an eleventh-hour dismissal to eliminate financial
liability would undermine the deterrent purpose of the anti-SLAPP
statute. (See Liu, at pp. 750–751.)
Plaintiffs argue that fee and cost awards are not mandatory
where a plaintiff has dismissed the special motion to strike before it
was heard. Plaintiffs are correct. (Liu, supra, 69 Cal.App.4th at
p. 753.) Preadjudication dismissals do not automatically render the
defendant the “prevailing party” for purposes of subdivision (c)(1).
But upon a determination that the defendant is the prevailing
party, the fee award becomes mandatory (subject to limitations on
an award in the context of a fully adjudicated motion). (§ 425.16,
subd. (c)(1).)
The court in Coltrain held the award of fees is discretionary,
dependent upon whether the movant “realized its objectives in the
litigation.” (Coltrain, supra, 66 Cal.App.4th at p. 107.) “Since the
defendant’s goal is to make the plaintiff go away with its tail
between its legs, ordinarily the prevailing party will be the
defendant.” (Ibid.) The fact of the dismissal gives rise to a
presumption that the defendants prevailed. (Ibid.) However, the
plaintiff may show “it actually dismissed because it had
substantially achieved its goals through a settlement or other
means, because the defendant was insolvent, or for other reasons
unrelated to the probability of success on the merits.” (Ibid.) The
Coltrain approach does not require an analysis of the merits of the
motion to strike under the anti-SLAPP statute.
The court in Liu, supra, disagreed with the Coltrain

10
approach. (Liu, supra, 69 Cal.App.4th at p. 752.) In the Liu court’s
view, a determination of whether a defendant would have prevailed
on its special motion to strike using the ordinary anti-SLAPP
statute analysis is an essential predicate to an award of fees and
costs under subdivision (c)(1). (Liu, at p. 752.) Under the Liu
approach, a trial court must consider the merits of the filed special
motion to strike and ascertain whether the defendant is a
“prevailing defendant” on that basis, just as it would have if the
complaint had not been dismissed. (See, e.g., Tourgeman, supra,
222 Cal.App.4th at p. 1458.)
Under either the Coltrain standard or the Liu standard,
defendants entirely prevailed in their special motion to strike.
3. Under Coltrain, Defendants Prevailed Because
Plaintiffs Dismissed Their Suit and Fail to Show It Was
for Reasons Unrelated to Lack of Merit
As set forth in Coltrain, a plaintiff’s dismissal gives rise to the
presumption that the defendant prevailed. (Coltrain, supra,
66 Cal.App.4th at p. 107.) A plaintiff may, as plaintiffs do here,
attempt to rebut this presumption by offering a “reason[] unrelated
to the[ir] probability of success on the merits.” (Ibid.) The reason
plaintiffs offer is that they discovered CSU may have been
indemnifying defendants in this action. Specifically, they assert
they “dismissed the case before hearing on the anti-SLAPP motion
upon their discovering that Seyfarth was indemnified by CSU, sued
by [plaintiffs] in the same court for discriminatory and retaliatory
termination.” They offer no record citation for this assertion in
their appellate brief. Nor do they explain why the indemnification
would affect their desire to recover damages on account of
defendants’ alleged misconduct. And, most critically, they fail to
assert that the purported discovery of CSU’s alleged
indemnification was the cause of their decision to withdraw their

11
complaint. The record establishes it was not.
Plaintiffs continued to vigorously pursue their action despite
having knowledge of the claimed indemnity well prior to the
dismissal. On October 26, 2020, plaintiffs filed an unauthorized
70-page surreply in opposition to defendants’ anti-SLAPP motion.
The surreply referred to the claimed indemnity by CSU in favor of
defendants. This negates any implication plaintiffs decided to
dismiss their case because of the indemnity.
4. Under Liu, Defendants Were the Prevailing Party
Because Their Anti-SLAPP Motion Was Entirely
Meritorious
The parties agree we should consider de novo whether
defendants would have prevailed on their special motion to strike.
We review a trial court’s disposition of an anti-SLAPP motion de
novo. (Simmons v. Bauer Media Group USA, LLC (2020)
50 Cal.App.5th 1037, 1043.) It follows that we apply the same
standard of review to a trial court’s determination of how it would
have resolved such a motion. (See, e.g., Tourgeman, supra,
222 Cal.App.4th at p. 1458 [“determining whether respondents
would have prevailed on their anti-SLAPP motion” was necessary
predicate to reviewing prevailing party determination].) We
therefore consider the same two-step analysis of defendants’ motion
that the trial court did.
a. All of plaintiffs’ causes of action depend on
protected activity.
To satisfy the first step in the anti-SLAPP analysis,
defendants need only show the alleged conduct underlying
plaintiffs’ claims is protected under the anti-SLAPP statute.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “[A] claim is subject
to an anti-SLAPP motion to strike if its elements arise from
protected activity.” (Bonni v. St. Joseph Health System (2021) 11

12
Cal.5th 995, 1015 (Bonni).) But if a cause of action would survive
without the challenged allegations, it must not be stricken. (Id. at
p. 1012 [“to the extent any acts are unprotected, the claims based on
those acts will survive”].)
Defendants argue that all of plaintiffs’ causes of action rely
exclusively on allegations of conduct protected under
subdivision (e)(1), (2), or (4). Plaintiffs disagree for three reasons.
First, they contend defendants’ investigation is subject to the
commercial exception to the anti-SLAPP statute set forth in
section 425.17. Second, they contend the investigation is subject to
the illegality exception described in Flatley v. Mauro (2006)
39 Cal.4th 299 (Flatley). Third, they contend defendants’
investigation is not an “official proceeding authorized by law”
within the meaning of subdivision (e)(1) and (2). They further
contend that allegations concerning the content of defendants’
report, even if protected, are unnecessary to their causes of action.
They argue the trial court correctly found defendants’ motion would
have been denied as to the eight causes of action that rely on the
paragraph 31 allegations, and that two causes of action the trial
court said would have been stricken also relied on those same
allegations, so the trial court was wrong as to these.
We agree with defendants that all conduct by defendants
alleged in the complaint is protected under the anti-SLAPP statute.
i. Defendants’ investigation was an
official proceeding authorized by law.
The Court of Appeal in Laker v. Board of Trustees of
California State University (2019) 32 Cal.App.5th 745 (Laker) held
that investigations by CSU into employee allegations of workplace
misconduct pursuant to CSU executive orders were “ ‘official
proceedings authorized by law’ that receive the protections of the
anti-SLAPP statute.” (Id. at p. 765.) It reasoned that the phrase

13
embraces proceedings required by statute, CSU had statutory
authority (Ed. Code, § 89030) to make rules governing their
employees, and CSU used that authority to mandate comprehensive
responses to employee complaints of workforce misconduct. (Laker,
at p. 764.) We agree with the trial court that Laker is directly
applicable here and renders CSU’s investigation an “ ‘official
proceeding[] authorized by law.’ ” (Ibid.)
Plaintiffs attempt to distinguish Laker on various grounds.
They first argue defendants’ investigation was not authorized by
Executive Order 1096, referenced in the Seyfarth engagement
letter, because the order “states on its face that complaints filed on
or before [June 3,] 2014 cannot be investigated [thereunder]” (italics
omitted) and Operstein filed her complaint on May 16, 2014,
two weeks before the cutoff date. Plaintiffs fail to acknowledge in
their opening brief that an executive order bearing the same title as
Executive Order 1096—Executive Order 1089—was in effect
immediately prior to the enactment of Executive Order 1096 and
similarly governed investigations of employee complaints of
workplace misconduct. Operstein’s declaration in opposition to the
special motion to strike admits CSUF told her in May 2014
Executive Order 1089 would govern. Like Executive Order 1096,
Executive Order 1089 required CSUF, directly or through an
appointed investigator, to investigate employee complaints and
prepare a written report regarding the findings. Plaintiffs
themselves allege the investigation was governed by an executive
order which mandated “a diligent, fair, and impartial
investigation.” That such a mandate arose by executive order is all
that matters under the Laker analysis. The number of the
executive order does not.
In their reply brief, plaintiffs make a series of new arguments
that the investigation was not a proceeding authorized by law.

14
These include that the investigation violated Operstein’s due
process rights and was a sham and various attacks on the executive
orders and defendants’ use of them. Plaintiffs offer no explanation
for why they held these arguments until their reply brief. We
therefore ignore them. (See, e.g., Murray & Murray v. Raissi Real
Estate Development, LLC (2015) 233 Cal.App.4th 379, 388–389
[deeming waived arguments “raised for the first time on reply and
[which appellant] made no attempt to show good cause why [they]
should [be] consider[ed]”].)
ii. Defendants’ communicative conduct is
protected under subdivision (e)(1)
and (2).
The court in Laker found subdivision (e)(1) and (2) applied to
statements by a witness in an internal CSU investigation. (Laker,
supra, 32 Cal.App.5th at p. 766.) Regan’s statements at issue here
were similarly made in the course of an internal CSU investigation.
Regan as a partner of Seyfarth was the CSU-appointed
investigator. As plaintiffs allege, defendants’ role was to act
impartially in investigating and reporting on the results of their
investigation into Operstein’s allegations.
The trial court found defendants’ communicative conduct
alleged in the complaint constituted written or oral statements or
writings made before and in connection with an issue under
consideration or review in an official proceeding authorized by law,
bringing them within the ambit of subdivision (e)(1) and (2). We
agree.
Aside from incorrectly claiming Seyfarth’s investigation was
not an official proceeding authorized by law, plaintiffs fail in their
opening brief to argue subdivision (e)(1) and (2) do not apply to
defendants’ alleged communicative conduct. This failure forfeits
any other challenge to the issue.

15
 iii. Defendants’ noncommunicative
conduct is protected under
subdivision (e)(4).
In assessing the status of plaintiffs’ noncommunicative
conduct alleged in the complaint, defendants urge us to take the
approach of the court in Vergos v. McNeal (2007) 146 Cal.App.4th
1387 (Vergos), which treated all investigative conduct as
communicative. The Vergos court reached its conclusion on the
basis that denial of the grievance was the “gravamen” of the
complaint and the noncommunicative conduct was part and parcel
of the communication of the adverse results. (Id. at p. 1397.) Since
the Vergos decision issued, our Supreme Court has mandated a
more granular evaluation of the allegations underlying a cause of
action and its subsidiary claims, and disapproved of the gravamen
analysis that appears to have been employed in Vergos, so we will
not rely on Vergos. (See Bonni, supra, 11 Cal.5th at p. 1012 [where
“various acts [serve] as a basis for relief . . . , each act or set of acts
must be analyzed separately under the usual two-step anti-SLAPP
framework”].)
Nevertheless, we find defendants’ conduct of the investigation
is embraced within subdivision (e)(4), which protects “conduct in
furtherance of the exercise of the constitutional right of petition or
the constitutional right of free speech in connection with a public
issue or an issue of public interest.” (Ibid.; Bonni, supra, 11 Cal.5th
at p. 1012.) Though such “conduct” may be communicative, it need
not be in order to be protected activity. (See Peregrine Funding,
Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 672 [noncommunicative litigation tactics such as
withholding documents are protected activity].)
The parties agree that to qualify for protection under
subdivision (e)(4), a public issue or public interest must be

16
implicated. Defendants argue Operstein’s allegations as to her
academic renown and the interests of California and the public in
the investigatory process supply the requisite issue or interest.
Plaintiffs respond that Operstein does not have such prominence
that any comment about her is necessarily of public interest and
analogize her claims to the “garden-variety employment dispute”
deemed unprotected in Wilson, supra, 7 Cal.5th at page 901.
We agree with plaintiffs that Operstein’s academic profile
does not furnish a public issue for purposes of the anti-SLAPP
statute. But we disagree that her claims against defendants are a
typical employment dispute. Defendants were not Operstein’s
employer. They did not terminate her. Plaintiffs are attacking
defendants’ conduct in an official proceeding authorized by law to
address workplace misconduct. Plaintiffs’ sole relationship with
defendants is through this proceeding and all conduct they allege is
actionable took place within its confines. As plaintiffs allege, the
public has an interest in this process. We agree with defendants
that such interest satisfies the public issue or interest requirement
of subdivision (e)(4).
In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133
(DoubleVerify), our Supreme Court held that subdivision (e)(4)
“encompasses conduct and speech similar to what is referenced in
. . . subdivision (e)(1) through (3)” and is meant to “round out the
statutory safeguards for constitutionally protected expression” the
rest of the subdivision provides. (DoubleVerify, at p. 144.)
As an example, the DoubleVerify court favorably cited our
decision in Mendoza v. ADP Screening & Selection Services, Inc.
(2010) 182 Cal.App.4th 1644 (Mendoza). (DoubleVerify, supra,
7 Cal.5th at p. 145.) That case considered whether claims against
an employee screening company that it had wrongfully accessed
and relayed information in a sex offender registry to a job

17
applicant’s prospective employer were of “public interest” for
purposes of the anti-SLAPP statute. In answering in the
affirmative, we recognized “the public interest in safe workplaces,
and in the liability which may attach to employers who fail to
investigate prospective employees where prudence justifies such an
investigation.” (Mendoza, at p. 1653.) We therefore concluded
“providing employment-screening reports is a constitutionally
founded, protected activity within the meaning of the anti-SLAPP
statute.” (Ibid.) The Supreme Court quoted this same language in
DoubleVerify. (DoubleVerify, at p. 145.)
We think Mendoza’s conclusion regarding public interest
applies to defendants’ investigative conduct in this case. CSUF
engaged defendants to investigate Operstein’s allegations of
workplace misconduct. CSUF faced the threat of liability for failing
to investigate Operstein’s complaints. (See Gov. Code, § 12940,
subds. (j), (k).) On behalf of CSUF, defendants conducted their
investigation so they could prepare and submit to CSUF a written
report. Like in Mendoza, defendants’ conduct, written and
noncommunicative, advanced the public interest in providing a safe
working environment. The investigation defendants performed
here was required under a statutorily authorized executive order of
a large public university system.
Plaintiffs argue subdivision (e)(4) cannot apply under the
Supreme Court’s decision in Wilson. Wilson was issued shortly
after DoubleVerify and cites DoubleVerify extensively. Wilson
concerned what categories of speech are protected under
subdivision (e)(4). (Wilson, supra, 7 Cal.5th 871.) The Wilson court
reasoned that “a defendant who claims its speech was protected as
‘conduct in furtherance of the exercise of [free speech rights] in
connection with a public issue or an issue of public interest’ (id.,
subd. (e)(4)) must show not only that its speech referred to an issue

18
of public interest, but also that its speech contributed to public
discussion or resolution of the issue.” (Wilson, at p. 900.)
By its terms, the Wilson test applies only to speech, not
noncommunicative conduct. But applying the logic that resulted in
the Wilson test for speech, we would still be satisfied defendants’
noncommunicative investigative conduct satisfies the public issue
requirement under subdivision (e)(4) because it is so bound up with
protected conduct enumerated in subdivision (e)(1) and (2). (See
Bonni, supra, 11 Cal.5th at p. 1020 [Wilson test, as applied to
noncommunicative acts, asks whether acts “furthered the
[defendants’] speech or petitioning rights because they bore some
‘substantial relationship’ to the [defendants’] ‘ability to [petition or]
speak on matters of public concern’ ”].) In fact, defendants’
noncommunicative conduct directly “further[ed]” speech—the
report—falling squarely within the coverage of subdivision (e)(1)
and (2). (§ 425.16, subd. (e)(4).)
As our Supreme Court has repeatedly observed, the anti-
SLAPP statute “ ‘ “equate[s] a public issue with the authorized
official proceeding to which it connects.” ’ ” (DoubleVerify, supra,
7 Cal.5th at p. 144, quoting Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1117 (Briggs).) By defining
them as “ ‘act[s] in furtherance of a person’s right of petition or free
speech . . . in connection with a public issue,’ ” subdivision (e) treats
as per se connected to a “public issue” any communicative conduct
before, or in connection with an issue under consideration or review
by, an official proceeding authorized by law. (§ 425.16, subd. (e)(1),
(2); Briggs, at p. 1116.) Defendants’ written report is therefore
communicative activity aimed at the resolution of the inherently
public issue underlying the complaint process (in addition to
implicating the public issue of workplace safety as already
discussed).

19
 Defendants’ noncommunicative investigative conduct
necessarily furthered the preparation of their report within the
meaning of subdivision (e)(4). The investigation was done for the
purpose of preparing the report. Executive Orders 1089 and 1096
each command that investigators appointed to review employee
complaints, like defendants, must conduct an investigation within a
specified period and, within that same period, prepare their
“investigative report.” The report must summarize the allegations
and investigative process, recite the evidentiary standard, describe
the evidence considered, contain factual findings, and state whether
any violation occurred. As defendants explain, “there can be no
report without the antecedent investigation,” and the sole purpose
of the investigation is to be able to develop and communicate a
resolution of the complaint.
iv. Plaintiffs fail to show any exceptions
to the anti-SLAPP statute apply.
The commercial exception, established in section 425.17,
subdivision (c), applies only to comparative advertising—
“ ‘representations of fact about [the defendant’s] or a business
competitor’s business operations, goods, or services.’ ” (Dziubla v.
Piazza (2020) 59 Cal.App.5th 140, 154, quoting § 425.17,
subd. (c)(1).) No such statements are at issue here.
The illegality exception is similarly inapplicable. Our
Supreme Court articulated this exception in Flatley when it held
that “a defendant whose assertedly protected speech or petitioning
activity was illegal as a matter of law, and therefore unprotected by
constitutional guarantees of free speech and petition, cannot use
the anti-SLAPP statute to strike the plaintiff’s complaint.” (Flatley,
supra, 39 Cal.4th at p. 305.) The rule applies only in “narrow
circumstance[s], where either the defendant concedes the illegality
of its conduct or the illegality is conclusively shown by the evidence

20
. . . .” (Id. at p. 316.) Courts, including ours, have interpreted
“illegality” as used in Flatley as limited to violations of criminal
law. (Mendoza, supra, 182 Cal.App.4th at p. 1654 [“use of the
phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not
merely violative of a statute”].) Defendants do not concede any
wrongdoing, much less criminal conduct. Plaintiffs have not
demonstrated any of their allegations against defendants
conclusively show illegality.
Having determined that all of defendants’ conduct alleged in
the complaint is subject to the protection of subdivision (e), we turn
to the second step of the anti-SLAPP analysis.
b. Plaintiffs cannot demonstrate a probability of
success on the merits.
As they did at the trial level, defendants argue multiple
reasons plaintiffs cannot meet their step two burden of showing “a
probability that [they] will prevail on the[ir] claim[s].” (§ 425.16,
subd. (b)(1).) We find all of plaintiffs’ causes of action are time-
barred. We therefore need not consider whether plaintiffs
demonstrated a probability they could overcome the bar of the
litigation privilege, Civil Code section 47, subdivision (b), or the
doctrine of claim preclusion (the aspect of res judicata defendants
also invoked).
A plaintiff cannot show a probability of prevailing on the
merits of a cause of action for anti-SLAPP purposes where the cause
of action is barred by the statute of limitations. (Traditional Cat
Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 399; see also
Garcia v. Rosenberg (2019) 42 Cal.App.5th 1050, 1059 [merits prong
unsatisfied as to time-barred action]; Yang v. Tenet Healthcare Inc.
(2020) 48 Cal.App.5th 939, 950 [same].)
Defendants provide authority that plaintiffs’ 11 causes of
action are subject to a range of limitation periods not exceeding four

21
years. Plaintiffs do not dispute this. Therefore, we accept as true
that all plaintiffs’ causes of action are time-barred, unless, as
plaintiffs contend, they are tolled under the doctrines of delayed
discovery, “equitable tolling,” and the California Rules of Court
COVID-19 Emergency Rule 9(a). We address each in turn, finding
no basis for tolling the statute of limitations.
i. Delayed discovery
“Generally speaking, a cause of action accrues at ‘the time
when the cause of action is complete with all of its elements.’ ” (Fox
v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) But the
delayed discovery rule “postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause of
action.” (Id. at p. 807.) For these purposes, “[a] plaintiff has reason
to discover a cause of action when he or she ‘has reason at least to
suspect a factual basis for its elements.’ [Citations.] . . .
[S]uspicion of one or more of the elements of a cause of action,
coupled with knowledge of any remaining elements, will generally
trigger the statute of limitations period. [Citations.] . . . Rather
than examining whether the plaintiffs suspect facts supporting each
specific legal element of a particular cause of action, we look to
whether the plaintiffs have reason to at least suspect that a type of
wrongdoing has injured them.” (Ibid.) The party claiming the
benefit of the delayed discovery rule bears the burden of showing its
applicability. (Id. at p. 808.)
The trial court concluded plaintiffs’ causes of action accrued
not later than February 9, 2015, when CSU notified Operstein by
letter of defendants’ conclusions in their report. The report stated
Operstein was not a victim of harassment, retaliation, or
defamation and that “much of [Operstein’s] conduct was not
collegial in that [she] regularly accused [her] coworkers of violations
and infractions of policy, and of defaming [her] and violating [her]

22
rights, all with no apparent basis.” It also described the
information defendants relied upon in preparing the report: “Regan
interviewed four individuals and reviewed related documents,
including multiple email communications” but had not received
information requested from Operstein. The letter showed the
report was sent also to CSUF’s Provost and vice president of
Academic Affairs; its vice president for Human Resources, Diversity
and Inclusion; and the dean of its College of Humanities and Social
Sciences. Plaintiffs presumably believed defendants’ conclusions
were false when Operstein received this letter. These wrongs are at
the core of their claims against defendants. The letter, the trial
court concluded, sufficed to put plaintiffs on notice of their claims
and commence the applicable limitations periods.
According to plaintiffs, when they received defendants’ report
in February 2015, “they had no knowledge whatsoever as to the
basis and evidence on which [defendants’] investigation and report
were made” and it “was conceivable that [defendants’] statements
[in the report] about Operstein were made in good faith on the
grounds of falsified documents submitted to [defendants] by CSU.”
Plaintiffs contend none of their causes of action accrued until
April 2019, when they received discovery in the federal litigation
they commenced in June 2017. The only connection they draw
between the 2019 production and the accrual of their present causes
of action is that the 2019 production was relevant to a qualified
privilege defense—Civil Code section 47, subdivision (c)—
defendants might have asserted against their causes of action.
Civil Code section 47, subdivision (c) makes privileged certain
communications about employee job performance provided they are
made “without malice.” (Ibid.) Plaintiffs cite Sanborn v. Chronicle
Publishing Co. (1976) 18 Cal.3d 406, 413 (Sanborn) for the
proposition that malice exists where “ ‘the defendant lacked

23
reasonable grounds for belief in the truth of the publication and
therefore acted in reckless disregard of the plaintiff's rights.’ ” They
argue that, without information to support allegations of malice,
plaintiffs could not assert their claims.
Plaintiffs’ contention they had no idea what evidence led to
the February 2015 report until April 2019 when they received
discovery in the federal action is belied by the record. In their
March 2016 EEOC complaint, plaintiffs alleged Regan “negligently
or intentionally[] failed to make an inquiry” into significant aspects
of Operstein’s complaint and “negligently or intentionally[] made a
‘finding’ of Dr. Operstein’s uncollegiality in making ‘baseless’
accusations against colleagues,” which resulted in Operstein’s
termination. These allegations show, at the very least, that
plaintiffs suspected Regan, in March 2016, of intentionally
performing a deficient investigation. This suspicion amounts, at
the very least, to a suspicion defendants “lacked reasonable grounds
for belief in the truth of the [report].’ ” (Sanborn, supra, 18 Cal.3d
at p. 413.) Put simply, plaintiffs at least suspected by March 2016
the link they contend was missing until April 2019.
ii. Equitable tolling
Plaintiffs’ equitable tolling argument asserts fraudulent
concealment by defendants. “The doctrine of fraudulent
concealment tolls the statute of limitations where a defendant,
through deceptive conduct, has caused a claim to grow stale.”
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185,
1192, citing Regents of University of California v. Superior Court
(1999) 20 Cal.4th 509, 533.)
Without citation to any record facts, plaintiffs assert
“Seyfarth concealed from Operstein the information which supplied
the basis for its findings against her in order to preclude her from
providing rebuttal evidence and witnesses and from undermining

24
Seyfarth’s false findings against her as the filer of a discrimination
complaint on which its business model and dominance as an
employer-side lawfirm is based.” Defendants correctly respond that
plaintiffs cite no evidence they concealed anything from plaintiffs.
Plaintiffs’ reply brief addresses this deficiency only with a
heading—“[Defendants’] contention that there is no evidence [they]
concealed anything from Plaintiffs is contrary to record”—with no
text, much less any record citation, beneath it. Plaintiffs have
forfeited their fraudulent concealment argument.
iii. COVID-19 Emergency Rule 9(a)
Plaintiffs last claim the benefit of COVID-19 Emergency
Rule 9(a), which tolled unexpired limitations periods from April 6,
2020 until October 1, 2020. As plaintiffs fail to demonstrate that
any of their causes of action were subject to unexpired limitations
periods as of April 6, 2020, this rule is inapplicable.
5. Attorney Fees and Costs Pursuant to Subdivision (c)(1)
The trial court concluded defendants’ attorney fee and cost
request was based on reasonable rates and a reasonable amount of
time spent in connection with their special motion to strike. It
reduced the amount only because it found defendants were only
partially prevailing parties. For the reasons set forth above, this
was error. Defendants’ entire motion was meritorious and should
have been granted in full. Accordingly, the court should not have
reduced defendants’ fee and cost request by $15,978 based on
perceived limits to the merits of the motion.
Based on our conclusion that defendants’ motion was entirely
meritorious, we disregard plaintiffs’ arguments that the award was
excessive for a partially prevailing or nonprevailing party and
consider only plaintiffs’ arguments that the fee award was
erroneous for reasons unrelated to the merits of defendants’ special
motion to strike. These arguments are based on policy and equity.

25
 As a preliminary matter, we address the standard of review.
Ordinarily, where satisfied that a party is entitled to fees and costs
pursuant to section 425.16, subdivision (c)(1), we review the amount
of the award for abuse of discretion. (Christian Research Institute v.
Alnor (2008) 165 Cal.App.4th 1315, 1322.) Here, however, plaintiffs
assert we should review the award de novo because, according to
plaintiffs, the trial judge labored under a conflict of interest in
issuing the challenged award. According to plaintiffs, that conflict
arose from the judge’s personal friendship with CSU’s general
counsel and vice chancellor. Based on this relationship, plaintiffs
characterize the fee award to defendants, who they assert are
indemnified by CSU, as an “award[] by the Trial Court to his
personal friend.” We give no weight to these speculative attacks on
the integrity of the trial court. But whatever the standard of
review, we are not persuaded by plaintiffs’ policy and equity
arguments.
As to policy, plaintiffs argue awarding fees to defendants
under the circumstances would chill claims pertaining to workplace
misconduct, putting the anti-SLAPP statute in conflict with the
Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et
seq.) The anti-SLAPP statute provides a “prevailing defendant” on
a special motion to strike is “entitled to recover that defendant’s
attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) The unqualified
mandatory language of subdivision (c) permits no exception for
claims implicating FEHA.
As to equity, plaintiffs argue the size of the award relative to
Operstein’s annual income is excessive and plaintiffs’
self-represented status renders them ineligible for fees; that
“Seyfarth’s wealth and size are relevant”; and the award was unjust
because plaintiffs’ claims are meritorious and target “the largest
lawfirm in the nation engaged in the well-known practice of aiding

26
and abetting FEHA violations.” The mandate of subdivision (c)(1) is
clear: prevailing defendants are entitled to attorney fees. (See
Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [“under . . . (c), any
SLAPP defendant who brings a successful motion to strike is
entitled to mandatory attorney fees”].) “ ‘ “ ‘Rules of equity cannot
be intruded in matters that are plain and fully covered by positive
statute [citation]. Neither a fiction nor a maxim may nullify a
statute.’ ” ’ ” (Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th
1361, 1368, fn. 5.)
6. Arguments Not Addressed Rendered Moot or Deemed
Forfeited
Plaintiffs’ opening brief contained approximately
124 headings over 58 pages and their reply brief contained
approximately 320 headings over 130 pages. In a few instances, the
headings introduce so little as, “[t]he title of this section is
incorporated herein by reference,” or even nothing at all. In many
others, they are followed by declaratory statements unsupported by
legal authority, record citations, or analysis. Further, some factual
citations plaintiffs did provide led to material bearing no apparent
relation to the propositions cited.
We have not addressed each individual argument advanced
by plaintiffs. In many cases, our analysis rendered their arguments
moot. In others, plaintiffs’ failure to adequately support an
argument with legal analysis and citation to the record excused us
from considering the argument at all. (See United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [“ ‘an
appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record[]’ ”;
“[w]e may and do ‘disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he wants

27
us to adopt’ ”].)
7. Motions for Judicial Notice
Plaintiffs filed two motions for judicial notice with this court.
The first requests judicial notice of documents relating to the trial
judge’s personal friendship with CSU’s general counsel and vice
chancellor, which plaintiffs argue amounts to a conflict of interest.
None of these documents was presented to the trial court. The
second motion requests judicial notice of a mix of court records and
Internet postings from both state and private websites. The court
records and one of the Internet postings are also offered to
demonstrate the trial judge’s purported conflict of interest. The
other Internet postings are offered to support other arguments
plaintiffs make in their briefs. None of these Internet postings was
presented to the trial court.
Our authority to take judicial notice is set forth in section 459
of the Evidence Code. It is subject to the limitation that the
proffered evidence be relevant. (See People v. Rowland (1992)
4 Cal.4th 238, 268, fn. 6 [“ ‘Because . . . no evidence is admissible
except relevant evidence it is reasonable to hold that judicial notice,
which is a substitute for formal proof of a matter by evidence,
cannot be taken of any matter that is irrelevant . . . .’ ”].) It is not
sufficient that the evidence be relevant to an argument made by its
proponent. The evidence must be relevant to the disposition of the
matter. (See Save Lafayette Trees v. East Bay Regional Park Dist.
(2021) 66 Cal.App.5th 21, 29, fn. 2 [“We deny PG&E’s request for
judicial notice as the additional documents are not necessary to
resolve this appeal”]; see also Hughes Electronics Corp. v. Citibank
Delaware (2004) 120 Cal.App.4th 251, 266, fn. 13 [“As a general
matter, judicial notice is not taken of matters irrelevant to the
dispositive points on appeal”].) Further, we “generally do not take
judicial notice of evidence not presented to the trial court” and will

28
do so only in “exceptional circumstances.” (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
The documents plaintiffs offer to show bias are irrelevant
because the bias claim rests on speculation, so the documents could
have no effect on the outcome of the appeal.
The remaining documents are also irrelevant. As plaintiffs’
own authorities show, we can take judicial notice of the existence of
Internet postings but not the truth of the statements contained
therein. (Ragland v. U.S. Bank National Assn. (2012)
209 Cal.App.4th 182, 194 [recognizing inability to “take judicial
notice of the truth of the contents of the Web sites and blogs”].)
Plaintiffs offer four of the Internet postings (exhibits 1, 8, 9 and 10
to the second motion for judicial notice) for the truth of their
content—statements about the pervasiveness of workplace
misconduct at CSU. This is not a proper subject of judicial notice.
Perhaps recognizing this, plaintiffs argue they are offering the
Internet postings to show “ ‘the extent of the widespread publicity
about the problems’ at the CSU with investigation of discrimination
and harassment complaints system-wide.” (Boldface and italics
omitted.) But they fail to explain how this publicity is relevant to
any of their arguments.
Finally, plaintiffs request judicial notice of two different
versions of Executive Order 1096 (exhibits 5 and 6 to the second
motion for judicial notice), which they argue show defendants’
investigation was conducted pursuant to an unconstitutional
procedure. We decline to consider plaintiffs’ arguments concerning
the constitutionality of any executive order under which defendants’
investigation proceeded because plaintiffs raised this issue for the
first time on reply.

29
 DISPOSITION
We affirm in part and reverse in part the trial court’s order
and judgment on defendants’ section 425.16, subdivision (c) motion
for attorney fees and costs. We remand to the trial court with
directions to award defendants the entire $79,889 in fees and costs
they requested. Defendants shall recover their costs on appeal.

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J.

VIRAMONTES, J.

30
Filed 10/20/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CRAIG ROSS et al., B312337
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20SMCV00587)
v.
ORDER CERTIFYING
SEYFARTH SHAW LLP et al., OPINION
FOR PUBLICATION
Defendants and Appellants. [No change in judgment]

THE COURT:
The opinion in the above-entitled matter filed on
September 29, 2023, was not certified for publication in the
Official Reports. For good cause, it now appears that the opinion
should be published in the Official Reports and it is so ordered.
There is no change in the judgment.

____________________________________________________________
GRIMES, Acting P. J. WILEY, J. VIRAMONTES, J.