Filed 6/9/20 Ferry v. Karnazes CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KIRSTEN FERRY,

Plaintiff and Appellant,

v.

ELIZABETH M.B. KARNAZES,

Defendant and Respondent.

A155813

Alameda County Super. Ct. No. HG16807341)

Plaintiff Kirsten Ferry appeals from the judgment entered after the trial court granted defendant Elizabeth M.B. Karnazes’s special motion to strike her amended complaint under Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon).) Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2016, Ferry filed a first amended complaint (FAC) against Karnazes and Laura J. Wons alleging claims for negligence, and negligent and intentional infliction of emotional distress. The 26-page FAC details a long history of discord between the parties. According to the allegations, Ferry’s husband John was in a business relationship with Wons from August 2007 to July 2009. The FAC alleges that Wons wrongfully obtained $15,000 from John, prompting him to file a civil action against her. Wons retaliated by filing two civil harassment petitions against John, both of which terminated in his favor. He reported Wons’s misconduct to state and federal taxing authorities, leading Wons to further retaliate against the couple and Ferry’s adult son.

Karnazes allegedly induced the Ferrys to hire her to represent John in the Wons litigation and to represent Ferry and her son in other matters in exchange for $6,000. The Ferrys also provided work as additional compensation for her legal services. The attorney-client relationship lasted from September 2010 to April 2011. The FAC alleges that Karnazes failed competently to perform these services, deceiving judicial officers and giving the Ferrys bad legal advice to their detriment.

After Ferry threatened to report Karnazes to the California State Bar, Karnazes allegedly retaliated by making false accusations and filing civil harassment petitions against the Ferrys. She abandoned them as clients, retained their fee payments, refused to turn over client documents, and thwarted John’s fee arbitration efforts. Ferry further alleges that Karnazes filed two civil complaints against the Ferrys, instigated criminal cases against Ferry, and engaged in other improper litigation activities designed to harass and intimidate them. The parties have litigated against each other in several different judicial forums over the course of many years.

In stating her claim for negligence, Ferry alleges that Karnazes “knew or should have known that [she] did not have colorable claims against Plaintiff and/or John, and that the claims . . . lacked merit and/or probable cause and/or were legally unsupported and/or had no basis in fact or reality.” In addition to suffering severe mental anguish and emotional distress as a result of this litigation, Ferry alleges that defendants were responsible for exacerbating an ankle injury she sustained at a Hayward post office that resulted in a broken ankle. Ferry’s causes of action for negligent and intentional infliction of emotional distress similarly assert that defendant’s litigation tactics have resulted in mental anguish, financial hardship, monetary losses, and physical injuries.

The Ferrys retained counsel in an attempt to settle all pending litigation with defendants. The FAC alleges that, “in association with the walk-away negotiations,” Karnazes demanded $50,000, which Ferry characterizes as an “attempt to extort money” from her.

Karnazes moved to strike the FAC pursuant to section 425.16. She asserted the FAC was based entirely upon activities covered by section 425.16 and protected by the litigation privilege under Civil Code section 47. At the hearing on Karnazes’s anti-SLAPP motion, the trial court noted that Ferry had not filed an opposition and had refused the court’s offer to continue the hearing so that she may have time to do so. Although Ferry protested that she had been improperly served, she elected to proceed with argument even after being advised that she would waive her lack-of-service claim.

The trial court observed that the FAC’s allegations were all based on acts of litigation or communications related to litigation. Ferry asserted that these activities were incidental to her claims, arguing that Karnazes and Wons improperly used the courts to harm her by increasing the likelihood that she would suffer permanent physical disability following the fall that broke her ankle. She characterized the “course of conduct” complained of as the “illegal use of the courts.” She cited generally to Baral v. Schnitt (2016) 1 Cal.5th 376 regarding the application of section 425.16 to complaints that include allegations of both protected and unprotected activity. Addressing Karnazes’s “walk away” demand for $50,000, Ferry cited Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405 and Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), for the proposition that extortion is not protected conduct. Ferry also asserted that the motion was defective because it cited to the original complaint rather than the FAC, and she objected to certain pleadings that Karnazes had attached to her motion.

Karnazes responded that she had filed only one lawsuit against the Ferrys in 2012 relating to their violation of a restraining order. All of the other conduct complained of in the FAC was undertaken in defense of actions that the Ferrys had filed against her. She also noted that many of the allegations in the FAC applied to Wons and not her.

The trial court overruled Ferry’s evidentiary objections and granted Karnazes’s special motion to strike. It concluded that Ferry’s claims all arose out of protected activity, noting that the court had repeatedly asked Ferry to describe acts alleged in her complaint that were not litigation activities and she could not do so. Under the second prong of the anti SLAPP analysis, the trial court concluded that the litigation privilege barred each of Ferry’s claims. The court further found that the motion’s reference to the original complaint rather than the FAC was immaterial because both pleadings contained substantially similar allegations. The court ordered the FAC stricken in its entirety. Judgment was entered dismissing the FAC. This appeal followed.

DISCUSSION

Appellant’s brief recalls an observation by another court about a similarly inadequate brief. “Indeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to ‘guess what is wrong with this picture.’ ” (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)

The bulk of Ferry’s opening brief is devoted to a lengthy and convoluted recitation of the parties’ long and bitter history of legal conflict. Much of the brief addresses irrelevant matters such as the parties’ pending disputes in other legal actions and appeals and discussion of proceedings that occurred since the filing of the notice of appeal. (See CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1 [a reviewing court may not give any consideration to alleged facts that are outside the record on appeal]; In re Zeth S. (2003) 31 Cal.4th 396, 405 [an appellate court reviews the correctness of the judgment at the time of rendition on record before lower court].) Indeed, Ferry continues to devote considerable attention to the alleged misdeeds of Wons even though she acknowledges that Wons is not a party to this appeal.

Where Ferry does address the trial court’s anti-SLAPP ruling, her points are not fleshed out or supported by citations to legal authority. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made].) To the extent issues raised in Ferry’s opening brief are not properly presented or sufficiently developed to be cognizable, we may treat them as having been waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.) Ferry’s election to act as her own attorney on appeal does not entitle her to disregard the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)

Nevertheless, we will address the merits of her appeal as best we can. We do so to dispel the notion that Ferry has never been given the chance to have her claims in the FAC adjudicated on their merits, and to try to provide a degree of closure to these litigants.

I. Overview of the Anti-SLAPP statute
II.
Section 425.16, subdivision (b)(1), 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 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.”

An act in furtherance of a person’s right of petition or free speech is broadly defined by section 425.16, subdivision (e), to include the following: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (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 proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

Resolution of an anti-SLAPP motion follows a two-step process: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . [Second, if] the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon, supra, 29 Cal.4th at p. 67.) “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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) “ ‘The defendant has the burden on the first issue . . .; the plaintiff has the burden on the second issue.’ ” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

In our review, “ ‘[w]e 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 plaintiff as a matter of law.” ’ ” (Flatley, supra, 39 Cal.4th at p. 326.)

We are guided by the well-established principle that a trial court judgment is “ ‘presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We conclude that Ferry has not met her burden of demonstrating any error in the proceedings below.

III. The Trial Court Properly Granted Karnazes’s Anti-SLAPP Motion
IV.
We first determine whether Ferry’s claims as stated in the FAC fall within the scope of the anti-SLAPP statute. They do. An act in furtherance of a person’s right of petition or free speech in connection with a public issue includes “any written or oral statement or writing made before a . . . judicial proceeding” as well as “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body.” (§ 425.16, subds. (e)(1), (e)(2).) “It is well established that the protection of the anti-SLAPP statute extends to lawyers and law firms engaged in litigation-related activity.” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113.) “In fact, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ ” (Ibid.) If the challenged conduct arises from the litigation, it falls within the scope of the anti-SLAPP statute. (Id. at p. 114.) The anti-SLAPP statute’s protections encompass writings and communications made in connection with litigation-driven settlement negotiations, even when such communications are allegedly fraudulent or improper. (Navellier, supra, 29 Cal.4th at p. 90; see Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963–967.)

Here, the FAC reveals that Ferry’s causes of action against Karnazes all arise from Karnazes’s statements, writings or filings made in connection with issues under consideration by civil or criminal courts. For example, the FAC alleges that Karnazes “filed and maintained two wrongful civil harassment petitions against John and Plaintiff”; “filed two wrongful civil complaints against them and has maintained one such case” (italics omitted); “unlawfully excited the prosecution of two criminal cases against Plaintiff”; and “routinely and improperly caused unnecessary litigation delays.” Karnazes allegedly undertook this litigation even when she knew or should have known that her claims were not colorable and that “maintaining court cases against Plaintiff and/or John” would cause them undue expense and physical and emotional suffering. The allegations describe quintessential protected petitioning activity.

Ferry concedes as much in her opening brief when she describes the underlying lawsuit as arising from Karnazes’s “ongoing, invalid, malicious petitioning activity,” and Karnazes’s “pattern of fraud related to her conduct before the courts of this State.” It is bedrock principle that “ ‘ “[t]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative [or judicial] action.” ’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115).

Ferry argues that Karnazes “does not have the constitutional right to violate the law.” To the extent she is asserting that Karnazes engaged in unprotected illegal conduct, we note that in Flatley our Supreme Court held that extortion related to potentially forthcoming litigation was not protected under the first prong of the anti-SLAPP analysis. In doing so, however, the court was clear on the narrow nature of its holding. The court explained that its decision only applied where “either 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, 34 Cal.4th at p. 320.)

Ferry raises no substantive argument that any of Karnazes’s litigation activities meet the narrow requirements set forth by the Supreme Court in Flatley. Furthermore, we see nothing in the record to indicate that Karnazes has conceded she engaged in illegal conduct, and Ferry has offered no evidence to establish that Karnazes’s petitioning activities were illegal as a matter of law. Far from committing extortion, Karnazes’s demand for $50,000 to settle all pending litigation with Ferry and her husband is properly viewed as a settlement counteroffer.

Having determined that Ferry’s claims all arise from protected speech and petitioning activity under the first prong of the anti-SLAPP analysis, we turn to the question of whether Ferry has demonstrated a probability of prevailing on her causes of action. In both the trial court below and the instant appeal, she has failed to address this part of the anti-SLAPP test. In any event, as the trial court observed, Ferry cannot succeed because the conduct complained of falls within the litigation privilege.

“ ‘The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citation.] Additionally, the privilege promotes effective judicial proceedings by encouraging ‘ “open channels of communication and the presentation of evidence” ’ without the external threat of liability [citation], and ‘by encouraging attorneys to zealously protect their clients’ interests.’ [Citation.] ‘Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.’ ” (Flatley, supra, 39 Cal.4th at pp. 321–322.) “To accomplish these objectives, the privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ ” (Flatley, at p. 322.)

The litigation privilege under Civil Code section 47, subdivision (b), has been held to immunize defendants from tort liability based on theories of abuse of process (Drasin v. Jacoby & Myers (1984) 150 Cal.App.3d 481); intentional infliction of emotional distress (Ribas v. Clark (1985) 38 Cal.3d 355; negligent misrepresentation and negligence (Pettitt v. Levy (1972) 28 Cal.App.3d 484); and fraud (Carden v. Getzoff (1987) 190 Cal.App.3d 907). (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 [“Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution’ ”].)

We conclude that the conduct complained of by the FAC, including its conclusory allegations that Karnazes abused the court process and committed fraud, negligence, and extortion in connection with her litigation practice, is absolutely protected by the litigation privilege. Contrary to Ferry’s contention on appeal, the trial court did adjudicate the merits of her complaint when it determined that Ferry has no possibility of prevailing on her claims as a matter of law.

At oral argument, Ferry asserted that Karnazes’s litigation activities fall within the sham exception to the Noerr-Pennington doctrine, asserting this exception operates to defeat the litigation privilege. Ferry did not raise this argument below even though, as previously noted, the trial court offered to continue the hearing so that she could file a written opposition to the anti-SLAPP motion. She elected to proceed with argument, and having failed to raise this point before the trial court, has waived it. “It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3; see Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) Had she preserved the argument for review, we would conclude it lacks merit.

“The Noerr–Pennington doctrine, which arose in the context of antitrust law, holds that ‘[t]hose who petition government for redress are generally immune from antitrust liability.’ ” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 478.) The doctrine has since been applied to commercial speech and competitive activity, as well as to anticompetitive activity. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 21–22). “An exception to the doctrine arises when efforts to influence government are merely a sham; such efforts are not protected by the Noerr Pennington doctrine and are subject to antitrust liability.” (Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 575.) At bottom, the Noerr- Pennington doctrine immunizes a government petitioner from antitrust liability unless the petitioning activity is a mere sham to cover what is nothing more than an attempt to interfere directly with the business relationships of a competitor. (BE&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 525-526; see People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 965–966.)

Ferry has made no effort to explain how the sham exception to the Noerr-Pennington doctrine applies in this case, and offers no explanation why the litigation privilege is not an absolute bar to her complaint. We “ ‘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 us to adopt.’ ” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)

DISPOSITION

The judgment is affirmed. Karnazes is entitled to her costs on appeal.

_________________________

Sanchez, J.

WE CONCUR:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A155813 Ferry v. Karnazes