Rand Resources, LLC v. City of Carson

IN THE SUPREME COURT OF

CALIFORNIA

RAND RESOURCES, LLC, et al.,

Plaintiffs and Appellants,

v.

CITY OF CARSON et al.,

Defendants and Respondents.

S235735

Second Appellate District, Division One

B264493

Los Angeles County Superior Court

BC564093

February 4, 2019

Justice Cuéllar authored the opinion of the court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Kruger, and Ashmann-Gerst* concurred.

*

Associate Justice of the Court of Appeal, Second Appellate

District, Division Two assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

RAND RESOURCES, LLC v. CITY OF CARSON

S235735

Opinion of the Court by Cuéllar, J.

The City of Carson (City) hired Rand Resources as its

agent to negotiate with the National Football League (NFL)

about the possibility of building a football stadium in the City.

But Rand Resources eventually sued the City, its mayor, and

rival developer Leonard Bloom after the City replaced Rand

Resources with Bloom’s company. The defendants responded by

making a motion under a California statute designed to hasten

resolution of certain disputes commonly characterized as

strategic lawsuits against public participation (SLAPP) ––

lawsuits meant to chill the valid exercise of the public’s rights to

free speech and petition for redress of grievances. (Code Civ.

Proc., § 425.16, subd. (a)1; see also Rusheen v. Cohen (2006) 37

Cal.4th 1048, 1055 (Rusheen).) Known as the anti-SLAPP

statute, this law permits a defendant facing such a lawsuit to

dispose of it through a special motion to strike one or more

causes of action.

To describe the standard governing whether such a motion

will succeed, the statute uses certain open-ended terms that

raise nuanced questions of interpretation. A special motion may

target “cause[s] 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

1

All further references to section 425.16 are to the Code of

Civil Procedure.

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Opinion of the Court by Cuéllar, J.

California Constitution in connection with a public issue . . . ,

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).) A plaintiff who fails to persuade

the court that he or she will probably prevail on the cause of

action in question faces immediate dismissal of that cause of

action.

The question we tackle here is whether the causes of

action asserted in Rand Resources’ dispute with the City and

other defendants arise — as required to advance a valid anti-

SLAPP motion — from the defendants’ acts in furtherance of

their right of free speech in connection with a public issue. What

we find is they do not, aside from two discrete claims asserted

against Bloom and his company. The relevant provisions of the

anti-SLAPP statute procedurally protect statements made “in

connection with an issue under consideration or review” by a

legislative body (§ 425.16, subd. (e)(2)) or “any other conduct in

furtherance of” the constitutional rights of petition or free

speech “in connection with a public issue or an issue of public

interest” (§ 425.16, subd. (e)(4)).

The City Council indeed reviewed whether to renew

plaintiffs’ contract with the City. But the anti-SLAPP statute

protects defendants’ statements made “in connection with” that

issue only where such statements form the basis of plaintiffs’

claims — that is, where the statements themselves constitute

the wrongs giving rise to the complaint. In this case, the

statements on which plaintiffs based their claims against the

City defendants were either (1) unrelated to the issue

considered by the City Council, or (2) made long before the issue

came “under consideration or review” by the City Council.

(§ 425.16, subd. (e)(2).) Under such circumstances, we hold that

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Opinion of the Court by Cuéllar, J.

these statements do not satisfy the requirements of section

425.16, subdivision (e)(2). In contrast, the statements

attributed to the City’s codefendants — Bloom and his company

— are at the heart of the intentional interference claims

asserted against these codefendants. These claims do fall within

the ambit of subdivision (e)(2) because they rely on statements

Bloom made “in connection with” the issue the City Council

reviewed.

We also find that none of defendants’ statements are

within the scope of subdivision (e)(4) of the anti-SLAPP statute,

save for those statements underlying the claims against Bloom.

The parties in this case agree that the building of a sports

stadium in the City of Carson to host an NFL team is — given

the wide-ranging impact that a project of such scale could have

on the City — an issue of public interest. Yet, except as to two

claims, the conduct providing the basis for plaintiffs’ claims has

only the slightest bearing on whether or not, or how, the stadium

should be built, nor does it concern any comparable matter of

public interest. Instead, the conversations underlying plaintiffs’

action relate only to who should be responsible for the ordinary

functions associated with representing the City in the

negotiations with the NFL — plaintiffs or the other entities

named as the City’s codefendants. Since there is no evidence or

persuasive argument that the identity of the City’s agents was

a matter of public interest in this case, defendants’ conduct does

not qualify as protected activity under section 425.16,

subdivision (e)(4).

Because we find some of plaintiffs’ causes of actions are

based on protected activities under subdivision (e)(2) and (e)(4)

of section 415.26 but others are not, we affirm in part and

reverse and remand in part the appellate court’s judgment.

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Opinion of the Court by Cuéllar, J.

I.

The plaintiffs in this case are Richard Rand and his

companies, Rand Resources and Carson El Camino, LLC

(collectively, Rand Resources or plaintiffs). The defendants are

the City of Carson and its mayor, James Dear (collectively, the

City defendants). Also named as defendants are Leonard Bloom

and Bloom’s company, U.S. Capital, LLC (collectively, the Bloom

defendants). According to the complaint, in 2012, Rand

Resources and the City entered into a contract in which Rand

Resources was to act as the City’s exclusive agent in negotiating

with the NFL to build “a new, state-of-the-art sports and

entertainment complex within the City” that would serve as the

home stadium for an NFL team. All parties agree this

development would have transformed the City and was a matter

of public interest.

The agreement did not begin under the most auspicious

circumstances. One of the City’s earlier mayors had attempted

to extort a bribe from Rand, and Rand, instead of paying, sued

the mayor and the City. Rand won. While the case was on

appeal, the City and Rand Resources entered into an agreement,

the Exclusive Negotiating Agreement (ENA), which governed,

inter alia, development of Rand Resources’ own land within the

parcel that the City was hoping to turn into a sports stadium.

Rand Resources alleges the City extended the ENA multiple

times.

In 2012, Rand Resources and the City entered into a new

agreement, the contract underlying the dispute in this case.

Under this agreement, the Exclusive Agency Agreement (EAA),

Rand Resources became the City’s exclusive authorized agent to

negotiate with the NFL. The EAA obligated the City not to

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Opinion of the Court by Cuéllar, J.

“engage, authorize or permit any other person or entity

whomsoever to represent City, to negotiate on its behalf, or to

otherwise act for City” in “coordinating and negotiating with the

NFL for the designation and development of an NFL football

stadium.” As part of that exclusivity condition, the City

committed that it “shall not itself, through its officials,

employees or other agents, contact or attempt to communicate

with the NFL or any agent or representative of the NFL.”

The EAA covered a term of two years but included an

option for renewal. The extension provision states: “The term

may be extended by mutual written consent of the parties for up

to two (2) additional periods of one (1) year. The City’s City

Manager, or designee, may grant such extension upon receipt of

an extension request and a report from Agent indicating in

specific terms the efforts of Agent to date and the anticipated

steps to be undertaken in the extension period for completion of

the applicable planning and negotiation phases of the Project.

To the extent that such efforts are reasonably determined by the

City to be consistent with the requirements of this Agreement,

the City shall grant such extension request. The granting of any

extension pursuant to this Section 5 shall be within the sole and

unfettered discretion of the City.”

Plaintiffs allege that City Attorney Bill Wynder

nonetheless made certain representations to Rand regarding

extension of the EAA. In particular, plaintiffs assert that “[i]n

August 2012 prior to Rand entering into the EAA, City Attorney

Bill Wynder, acting on behalf of the City, told Mr. Rand that,

even though the EAA only initially provided for a term of two

years, the City would extend the EAA for two years beyond that

period, just as it had with the ENA, so long as Rand showed

reasonable progress with respect to bringing an NFL franchise

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Opinion of the Court by Cuéllar, J.

to Carson.” Plaintiffs allege that “[p]ursuant to the EAA,” they

“expended significant time and resources in bringing an NFL

team to Carson.”

What prompted plaintiffs’ lawsuit was that the City

“stopped adhering to the terms of the EAA” around April 2013,

within the initial term of the agreement and shortly after Rand

settled his earlier litigation against the City. Rand alleges the

City breached the exclusivity condition by, among other things,

allowing the Bloom defendants to act as its representative in

negotiating with the NFL.

Plaintiffs advance a variety of allegations to support these

claims. The most pertinent ones involve speech and so

potentially implicate the anti-SLAPP statute: allegations that

the Bloom defendants and Mayor Dear “would send each other

‘confidential emails’ to discuss matters relating to building a

stadium in Carson”; “Mayor Dear regularly sent Mr. Bloom and

U.S. Capital, LLC private and confidential City of Carson

documents relating to development of an NFL stadium”; and

“Messrs. Bloom and Dear were involved in discussions with the

City as to how to ‘get around’ the EAA.”

With respect to the Bloom defendants specifically,

plaintiffs allege, “Leonard Bloom and U.S. Capital, LLC, with

the knowledge and support of representatives of the City,

including Mayor Dear, were contacting NFL representatives

and purporting to be agents of the city with respect to bringing

an NFL franchise to Carson.” In addition, “Mr. Bloom was using

promotional materials that were derivative of those created and

used by Rand in connection with meetings with NFL officials

and others.” In August 2014, Bloom also directed the vice

president of his company “to form a new entity with the same

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Opinion of the Court by Cuéllar, J.

exact name as Mr. Rand’s company that entered into the EAA,

Rand Resources, LLC,” presumably so that he could pass off the

entity as Rand’s company.

Plaintiffs also contend the City and Bloom defendants

sought to hide their activities. In particular, plaintiffs allege

that when Rand asked Mayor Dear about Bloom, “[t]he Mayor

falsely told Rand that he did not know Mr. Bloom and was not

aware of what, if anything, Mr. Bloom was doing with respect to

the City and the NFL.”

In July 2014, Rand Resources submitted to the City a

request to extend the EAA for another year. After Rand

Resources presented its request but before the City voted upon

the matter, Bloom “met with Mayor Dear and at least one

Carson councilperson . . . to discuss and conspire about how to

breach the EAA and not extend it.” Another meeting also took

place days before the vote, this one attended by Rand and City

Attorney Wynder. During this encounter, Wynder informed

Rand that the City was not going to extend the agreement.

Wynder further stated that “the City had been ‘walking on

eggshells’ with Leonard Bloom and ‘did not need’ Rand

anymore.” According to plaintiffs, the City then committed

another breach of the EAA when its City Council voted to deny

the requested extension.

On the strength of these allegations, plaintiffs lodged a

six-count complaint against the City, Mayor Dear, and the

Bloom defendants. The first three causes of action are directed

at the City and include breach of contract, tortious breach of

contract, and promissory fraud. The next count of fraud is

asserted against all defendants; and the last two counts —

intentional interference with contract and intentional

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Opinion of the Court by Cuéllar, J.

interference with prospective economic advantage — are

asserted against the Bloom defendants alone.

Defendants responded by making special motions to strike

the second through sixth causes of action. The trial court

granted their motions. The appellate court reversed, concluding

the causes of action at issue did not arise from conduct in

furtherance of defendants’ constitutional rights of free speech in

connection with a public issue, as defined by section 425.16. We

granted review to clarify the scope of the statute.

II.

A.

The Legislature enacted section 425.16 in response to “a

disturbing increase in lawsuits brought primarily to chill the

valid exercise of the constitutional rights of freedom of speech

and petition for the redress of grievances.” (§ 425.16, subd. (a).)

These lawsuits prompted the Legislature to declare that “it is in

the public interest to encourage continued participation in

matters of public significance, and that this participation should

not be chilled through abuse of the judicial process.” (Ibid.) To

limit such risks, the anti-SLAPP legislation provides a special

motion to strike “intended to resolve quickly and relatively

inexpensively meritless lawsuits that threaten free speech on

matters of public interest.” (Newport Harbor Ventures, LLC v.

Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 639.) In

1997, the Legislature amended the statute to provide that,

directed to this end, the statute “shall be construed broadly.”

(§ 425.16, subd. (a); see also Equilon Enterprises v. Consumer

Cause, Inc. (2002) 29 Cal.4th 53, 59–60, fn. 3 (Equilon)

[providing a history of the anti-SLAPP statute].)

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The procedure made available to defendants by the anti-

SLAPP statute has a distinctive two-part structure. (E.g., Barry

v. State Bar of California (2017) 2 Cal.5th 318, 321; Baral v.

Schnitt (2016) 1 Cal.5th 376, 384 (Baral); Simpson Strong-Tie

Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon, supra, 29

Cal.4th at p. 67.) A court may strike a cause of action only if the

cause of action (1) arises from an act in furtherance of the right

of petition or free speech “in connection with a public issue,” and

(2) the plaintiff has not established “a probability” of prevailing

on the claim. (§ 425.16, subd. (b)(1) [“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”].)

A defendant satisfies the first step of the analysis by

demonstrating that the “conduct by which plaintiff claims to

have been injured falls within one of the four categories

described in subdivision (e) [of section 425.16]” (Equilon, supra,

29 Cal.4th at p. 66), and that the plaintiff’s claims in fact arise

from that conduct (Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1063 (Park)). The four

categories in subdivision (e) describe conduct “in furtherance of

a person’s right of petition or free speech under the United

States or California Constitution in connection with a public

issue.” (§ 425.16, subd. (e).) Defendants here contend plaintiffs’

causes of action arise from two of those categories:

communications “made in connection with an issue under

consideration or review by a legislative body” (§ 425.16, subd.

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Opinion of the Court by Cuéllar, J.

(e)(2)) and “conduct in furtherance of the exercise of . . . free

speech in connection with a public issue or an issue of public

interest” (§ 425.16, subd. (e)(4).).

According to subdivision (e)(2) of section 425.16, “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” is an “act in furtherance of a person’s right of petition or

free speech under the United States or California Constitution

in connection with a public issue.” By requiring the

communication to be in connection “with an issue under

consideration or review” (§ 425.16, subd. (e)(2), italics added),

the terms of subdivision (e)(2) make clear that “it is insufficient

to assert that the acts alleged were ‘in connection with’ an

official proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th

853, 867.) Instead, “[t]here must be a connection with an issue

under review in that proceeding.” (Ibid.; see also McConnell v.

Innovative Artists Talent & Literary Agency, Inc. (2009) 175

Cal.App.4th 169, 177 [same]; Blackburn v. Brady (2004) 116

Cal.App.4th 670, 677 [same].)

Alternatively, under subdivision (e)(4) of section 425.16,

plaintiffs’ causes of action must arise from defendants’ conduct

“in connection with a public issue or an issue of public interest.”

(See, e.g., Tamkin v. CBS Broadcasting, Inc. (2011) 193

Cal.App.4th 133, 142–143 [“A cause of action arises from

protected activity within the meaning of section 425.16,

subdivision (e)(4) if (1) defendants’ acts underlying the cause of

action, and on which the cause of action is based, (2) were acts

in furtherance of defendants’ right of petition or free speech

(3) in connection with a public issue”].)

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Not surprisingly, we have struggled with the question of

what makes something an issue of public interest. (See Briggs

v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,

1122 & fn. 9). The appellate courts, however, have derived some

guiding principles that characterize a matter of public interest.

We share the consensus view that “a matter of concern to the

speaker and a relatively small, specific audience is not a matter

of public interest,” and that “[a] person cannot turn otherwise

private information into a matter of public interest simply by

communicating it to a large number of people.” (Rand

Resources, LLC v. City of Carson (2016) 247 Cal.App.4th 1080,

1092 (Rand Resources), quoting Weinberg v. Feisel (2003) 110

Cal.App.4th 1122, 1132–1133.)

Here, the Court of Appeal properly identified three

nonexclusive and sometimes overlapping categories of

statements within the ambit of subdivision (e)(4). (See Rand

Resources, supra, 247 Cal.App.4th at pp. 1091–1092.) The first

is when the statement or conduct concerns “a person or entity in

the public eye”; the second, when it involves “conduct that could

directly affect a large number of people beyond the direct

participants”; and the third, when it involves “a topic of

widespread, public interest.” (Rivero v. American Federation of

State, County, and Municipal Employees, AFL–CIO (2003) 105

Cal.App.4th 913, 919; see id. at pp. 919–924.)

But to prevail on an anti-SLAPP motion, a defendant must

do more than identify some speech touching on a matter of

public interest. As we have explained, “ ‘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.’ ”

(Park, supra, 2 Cal.5th at p. 1063 [holding that in deciding

whether the “arising from” requirement is met, “courts should

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consider the elements of the challenged claim and what actions

by the defendant supply those elements and consequently form

the basis for liability”].) In other words, a claim does not “arise

from” protected activity simply because it was filed after, or

because of, protected activity, or when protected activity merely

provides evidentiary support or context for the claim. Rather,

the protected activity must “supply elements of the challenged

claim.” (Id. at p. 1064.)

In what follows, we consider counts two through six of the

complaint within the above framework, asking, first, what

conduct or statements underlie plaintiffs’ claims; and second,

whether the conduct was “in furtherance of” defendants’ rights

of petition or free speech “in connection with a public issue,” as

defined by either subdivision (e)(2) or (e)(4). (§ 425.16, subd. (e).)

B.

Plaintiffs’ second and fourth claims allege tortious breach

of contract against the City defendants and fraud against all

defendants, respectively. But they rest on allegations that are

virtually identical.2 Although plaintiffs’ third claim involves

promissory fraud, it differs in material ways from the tortious

breach of contract and fraud claims, so we treat it separately.

The crux of the second and fourth claims is that

defendants concealed and affirmatively lied about the City’s

2

We have established a “general rule precluding tort

recovery for noninsurance contract breach,” except to the extent

the claim is simply a fraud claim by another name. (Freeman &

Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102.)

Plaintiffs’ tortious breach claim (count two) does appear to be a

fraud claim by another name, and we thus refer to it as among

plaintiffs’ fraud-based claims.

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breach of the exclusivity provision. (See Park, supra, 2 Cal.5th

at p. 1060.) Plaintiffs allege that Mayor Dear and the Bloom

defendants conspired to conceal the City’s breach of the

exclusivity provision by meeting in secret, exchanging

“confidential emails,” and “form[ing] a new entity . . . with the

same exact name as Plaintiff Rand Resources” to “make it

appear that [Bloom] was affiliated with and controlled Rand

Resources.” Plaintiffs also allege affirmative

misrepresentations, including that Mayor Dear falsely told

Rand that the mayor “did not know Mr. Bloom and was not

aware of what, if anything, Mr. Bloom was doing with respect to

the City and the NFL”; and that Wynder “falsely told Mr. Rand

that, so long as Rand showed reasonable progress,” the EAA

would be renewed.

Among these allegations, Mayor Dear’s and Wynder’s false

statements to Rand supply an element of the fraud-based

claims: misrepresentation in the form of concealment,

nondisclosure, or false representation.3 These

misrepresentations are not simply “evidence of liability or a step

leading to some different act for which liability is asserted”; they

are themselves the “wrong[s] complained of.” (Park, supra, 2

Cal.5th at p. 1060.) They therefore satisfy the anti-SLAPP

3

Mayor Dear’s and Wynder’s statements, not directly or

indirectly attributable to the Bloom defendants, cannot supply

the elements of a fraud claim asserted against the Bloom

defendants. (See City of Montebello v. Vasquez (2016) 1 Cal.5th

409, 426 [distinguishing between activities of the municipal

government and those of individuals, who happened to be

officials of the municipality]; Area 51 Productions, Inc. v. City of

Alameda (2018) 20 Cal.App.5th 581, 599–600 [agreeing that

“Vasquez . . . ‘emphasizes that each person’s conduct is to be

analyzed separately’ ”].)

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requirement that the challenged claim “aris[e] from”

defendants’ conduct. (§ 425.16, subd. (b)(1).)

But these particular statements were not made “in

connection with” either the issue before the City Council — the

relevant legislative body, under subdivision (e)(2) — or an issue

of public interest, under subdivision (e)(4). A closer look at the

facts in light of these two statutory provisions shows why.

Consider first subdivision (e)(2). It is undisputed that the

City Council met and took a vote affecting Rand Resources and

the Bloom defendants. But the issue that the legislative body

reviewed, considered, and voted on was whether to extend the

EAA with Rand Resources in 2014. The City Council did not

separately consider whether the Bloom defendants should be

allowed to represent the City during the original term of the

EAA, when the City was legally bound to use Rand Resources as

its exclusive agent. Only communications made in connection

with the renewal of the EAA — what the City Council actually

considered — constitute “written or oral statement[s] or

writing[s] made in connection with an issue under consideration

or review” by the City Council. (§ 425.16, subd. (e)(2).) Plaintiffs

present no other rationale for treating statements that are the

basis of these claims as covered by subdivision (e)(2).

Statements concerning anything else at issue in these claims,

including those reflecting or concealing a breach of the EAA’s

exclusivity provision, fall outside the scope of this subdivision.

As to subdivision (e)(4), the parties agree that building an

NFL stadium in the City is a matter of public interest. But

defendants’ speech concerned only the narrower issue of who

should represent the City in the negotiations with the NFL. The

affirmative misrepresentations, for instance, concerned only the

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falsehoods that Mayor Dear did not know Bloom and was not

aware of his involvement in the NFL negotiations, and that the

City would continue to let Rand be its exclusive agent if his

company made “reasonable progress.” Neither of these

statements was directed to the public issue of whether to “hav[e]

an NFL team, stadium, and associated developments in Carson”

or what trade-offs might be entailed in the process. (Rand

Resources, supra, 247 Cal.App.4th at p. 1093.) Rather, what

Mayor Dear and Wynder misrepresented — the issue “in

connection with” their statements — was the identity of the

City’s agent in negotiations with the NFL.

Defendants disagree. “Speech about ‘who’ should

represent the City in its NFL negotiations,” they contend, “is

just as protected as the speech ‘of’ that exclusive representation

with the NFL” — “[t]he two kinds of speech are inextricably

intertwined.” What defendants fail to explain is how or why that

is the case here, under circumstances where no obvious

connection existed between the identity of the representative

and a matter of public concern.

Defendants instead contend that this case is no different

than Tuchscher Development Enterprises, Inc. v. San Diego

Unified Port Dist. (2003) 106 Cal.App.4th 1219 (Tuchscher). In

Tuchscher, a developer had an exclusive deal with a city to “take

preliminary steps and negotiate towards a development

agreement for the creation of a mixed use real estate project . . .

on certain bayfront property within the City.” (Id. at p. 1227.)

The parties did not dispute that the planned development was

an issue of public interest. (Id. at p. 1233.)

Yet ultimately, the developer and city failed to reach an

agreement on the project. The developer then sued, alleging the

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defendants had interfered with the contract it had with the city.

To support its claims, the developer introduced evidence of

communications between the defendants, a rival developer, and

the city. The developer’s claims failed when the trial court

granted the defendants’ motion to strike under section 425.16

and the appellate court affirmed.

Tuchscher is distinguishable. Unlike any communications

at issue here, those in Tuchscher pertained to the actual

development of real estate — an issue of public interest — and

formed the basis of the developer’s claims. For instance, the

challenged communications in Tuchscher included a letter from

the rival developer to a defendant discussing such matters as

the construction of “ ‘H St. Marina View Parkway,’ ” the

demolition of “ ‘the existing structures on Port property,’ ” and

the development of “ ‘residential housing on the adjacent fee

owned property and commercial on Port property.’ ” (Tuchscher,

supra, 106 Cal.App.4th at p. 1229.) If, as the Court of Appeal in

Tuchscher said, these communications were “the activity

underlying [the developer’s] causes of action,” Tuchscher is

instructive mainly in its differences from this case. (Id. at

p. 1233.)

No such communications relating to the building of the

NFL stadium underlie plaintiffs’ fraud-based claims. True: the

defendants allegedly discussed building a stadium among

themselves and with the NFL, while Bloom forged a deliberately

confusing parallel entity. But those discussions and activities

are not the misrepresentations that form the basis of the fraud.

Rather, they serve as evidence that the City’s statements to

plaintiffs in denying Bloom’s involvement were fraudulent. (See

Park, supra, 2 Cal.5th at p. 1068.) In other words,

communications exchanged between the City, the Bloom

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defendants, and the NFL did not defraud plaintiffs; the City

defendants’ lie about their communications did. The lie,

however, related only to the matter of who was representing the

City. It had nothing to do with the merits of whether, how, and

in what form the stadium should be built.

Defendants also argue that the issue of who served as the

City’s agent is a matter of public significance because “the better

the negotiating party, the more likely that an NFL stadium

would be delivered.” As a preliminary matter, we reject the

proposition that any connection at all — however fleeting or

tangential — between the challenged conduct and an issue of

public interest would suffice to satisfy the requirements of

section 425.16, subdivision (e)(4). (See, e.g., Jewett v. Capital

One Bank (2003) 113 Cal.App.4th 805, 814 [reversing the grant

of a special motion to strike when “the attempt to connect the

solicitations [the speech at hand] with an issue of public interest

is tenuous at best”]; Bikkina v. Mahadevan (2015) 241

Cal.App.4th 70, 84 (Bikkina) [holding that the defendant’s

statements did not qualify as being in connection with an issue

of public interest when the “statements were only remotely

related to the broader subject of global warming or climate

change”].)

At a sufficiently high level of generalization, any conduct

can appear rationally related to a broader issue of public

importance. What a court scrutinizing the nature of speech in

the anti-SLAPP context must focus on is the speech at hand,

rather than the prospects that such speech may conceivably

have indirect consequences for an issue of public concern. (E.g.,

Bikkina, supra, 241 Cal.App.4th at p. 85 [“Here, the specific

nature of the speech was about falsified data and plagiarism in

two scientific papers, not about global warming”]; Consumer

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Justice Center v. Trimedica International, Inc. (2003) 107

Cal.App.4th 595, 601 [“If we were to accept [defendant’s]

argument that we should examine the nature of the speech in

terms of generalities instead of specifics, then nearly any claim

could be sufficiently abstracted to fall within the anti-SLAPP

statute”]; Commonwealth Energy Corp. v. Investor Data

Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 [“While

investment scams generally might affect large numbers of

people, the specific speech here was a telemarketing pitch for a

particular service marketed to a very few number of people. . . .

The speech was about [defendant’s] services, not about

investment scams in general”].)

We acknowledge that who precisely represents a city in

sports franchise negotiations could indeed conceivably prove a

matter of public interest. The identity of the speaker and the

concededly important subject of the speaker’s speech may, in

some cases, be sufficiently linked so that the speech relating to

the speaker’s identity constitutes “conduct in furtherance of the

exercise of the constitutional right of . . . free speech in

connection with a public issue or an issue of public interest.”

(§ 425.16, subd. (e)(4).) But defendants’ argument does not

allow us to justify such a conclusion here. Defendants failed to

suggest anything more than the most attenuated connection

between the identity of the City’s agent and a matter of public

importance.4 Nor is there anything in the record to support the

4

The Court of Appeal noted that the City was not paying

Rand Resources at all for its work as an agent. (Rand Resources,

supra, 247 Cal.App.4th at p. 1094.) As such, we need not

address the City’s argument that “an EAA for the City’s agent

to negotiate the potential development of a large-scale project .

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conclusion that the nature of the representation at issue

involved more than routine functions ordinarily associated with

such arrangements. The failure to introduce such evidence is a

material deficiency since defendants bear the burden at the first

stage of the anti-SLAPP analysis. (See Baral, supra, 1 Cal.5th

at p. 396 [“At the first step, the moving defendant bears the

burden of identifying all allegations of protected activity, and

the claims for relief supported by them”].) Defendants have not

carried their burden.

Ultimately, the conversations underlying plaintiffs’ claims

focus on who should be responsible for day-to-day functions

associated with representing the City, not whether an NFL

stadium should be built. Any furtive communications and

behind-the-scenes machinations that did relate to the merits of

an NFL stadium did not form the basis of plaintiffs’ fraud

claims.

Similar complications arise in plaintiffs’ third claim, for

promissory fraud against the City defendants. Promissory

fraud arises where a promise is made without any intention to

perform. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638

[“A promise to do something necessarily implies the intention to

perform; hence, where a promise is made without such

intention, there is an implied misrepresentation of fact that may

be actionable fraud”].) The claim arises directly from Wynder’s

statement to Rand, before he signed the EAA, that “so long as

Plaintiffs showed reasonable progress with respect to bringing

an NFL franchise to Carson, the EAA would be extended,”

. . fall[s] squarely within the definition of an issue of public

interest [in part] because an agent could be paid a substantial

amount of public funds for a project of great public significance.”

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followed by the City Council’s denial of an extension to the EAA

in 2014.

Because Wynder’s promise supplies an element of the

promissory fraud claim (Rossberg v. Bank of America, N.A.

(2013) 219 Cal.App.4th 1481, 1498), it properly arises from

speech that might be protected under section 425.16,

subdivision (e)(2) or (e)(4). (See Park, supra, 2 Cal.5th at

p. 1063.) Wynder’s statement, unlike Mayor Dear’s, did relate

to the EAA renewal issue before the City Council.

Yet Wynder’s statement was made in 2012, about two

years before the renewal issue even came before the City

Council.5 Section 425.16, subdivision (e)(2) protects only those

“written or oral statement[s] or writing[s] made in connection

with an issue under consideration or review.” (Italics added.)

The subdivision thus appears to contemplate an ongoing — or,

at the very least, immediately pending — official proceeding.

Conversely, if an issue is not presently “under consideration or

review” by such authorized bodies, then no expression — even if

related to that issue — could be “made in connection with an

issue under consideration or review.” (§ 425.16, subd. (e)(2).)

What our appellate courts have declined to do is presume

speech meets the requirements of section 425.16, subdivision

(e)(2) when no official proceeding was pending at the time of the

speech. (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017)

5

Although the City Council approved the EAA in 2012, the

parties do not dispute that the EAA is a valid contract, and

defendants do not seem to have argued the City Council’s

approval of the EAA in 2012 was relevant until they briefed the

case before us. We therefore do not consider the action of the

City Council in 2012.

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15 Cal.App.5th 686, 703 [“[P]reparatory communications do not

qualify as a protected activity if future litigation is not

anticipated, and is therefore only a ‘possibility’ — and this is

true even if the communication is a necessary prerequisite to

any future litigation.”]; Kajima Engineering & Construction,

Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 930

[“Kajima admits that ‘a majority of the alleged acts occurred, if

at all, at or about the time [it] submitted its bid in early 1995.’

. . . Kajima was not exercising its right of petition at the time of

the alleged acts; it was seeking to secure and working on a

construction project”]; People ex rel. 20th Century Ins. Co. v.

Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280,

285 [stating that “[a]t the time defendants created and

submitted their reports and claims, there was no ‘issue under

consideration’ pending before any official proceeding” and

concluding “defendants failed to make a prima facie showing

that the causes of action in the lawsuit arose from free speech or

petition activity”].) We agree. “[U]nder consideration or review”

does not mean any issue a legislative body may conceivably

decide to take up months or years in the future. Wynder’s

statement was not made at the time or on the eve of the renewal

decision; it was made years before the issue came under review

by the City Council. Wynder did not even refer to the City

Council’s review process in his promise.

Nor does Wynder’s 2012 promise relating to the EAA

extension merit protection as speech “in connection with a public

issue or an issue of public interest” under subdivision (e)(4).

Even charitably reading Wynder’s statement to encompass the

identity of the City’s agent –– as we did in connection with

plaintiffs’ other fraud-based claims –– defendants have not

shown the issue to be one of public interest in this case. (Cf.

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Tuchscher, supra, 106 Cal.App.4th at p. 1233 [finding claims

within the ambit of subdivision (e)(4) where they arose from

“communications to either the City or Lennar involving the

proposed development of Crystal Bay and other bayfront

property”].)

The City elliptically suggests another basis to strike the

promissory fraud claim: in 2014, days before the City Council

considered the EAA extension, Wynder told Rand the City would

not be extending the EAA because it “did not need” Rand

anymore and had been “walking on eggshells” with Bloom.

True: the statement may be evidence the City was acting in bad

faith. It tends to show the City had already made up its mind

not to extend the EAA, certainly, and it involves protected

activity (speech in the form of an oral statement) relating to an

issue considered by a legislative body (renewal of the EAA). But

this is not enough.

What the anti-SLAPP statute protects is speech that

“provides the basis for liability.” (Park, supra, 2 Cal.5th at pp.

1060, 1065 [instructing that in determining whether a cause of

action arises from protected speech, courts must distinguish

“between speech that provides the basis for liability and speech

that provides evidence of liability”].) This, the statement does

not do. Rather, the statement is analogous to the comments

found in Park to fall outside the scope of section 425.16. (See id.

at p. 1068 [“The tenure decision may have been communicated

orally or in writing, but that communication does not convert

Park’s suit to one arising from such speech. The dean’s alleged

comments may supply evidence of animus, but that does not

convert the statements themselves into the basis for liability”].)

As was the case in Park, Wynder’s 2014 statement — leaving

aside any refusal to renew the contract — would not form the

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Opinion of the Court by Cuéllar, J.

basis of a promissory fraud claim. But the wrongful refusal to

renew the contract, even without the prior communication,

“surely could.” (Ibid.)

C.

We turn next to plaintiffs’ claims against the Bloom

defendants for intentional interference with contract and

intentional interference with prospective economic advantage.

Plaintiffs assert the Bloom defendants disrupted the

relationship between plaintiffs and the City by interfering with

plaintiffs’ twin rights under the EAA and with plaintiffs’

prospective economic advantage as the City’s exclusive agent in

negotiations. The two intentional interference claims share

many elements — principally, an intentional act by the

defendant designed to disrupt the relationship between the

plaintiff and a third party. (Edwards v. Arthur Andersen LLP

(2008) 44 Cal.4th 937, 944 [stating that an intentional

interference with prospective economic advantage claim

requires, among other things, “an intentional act by the

defendant, designed to disrupt the relationship”]; Quelimane Co.

v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 [laying

out the elements of an intentional interference with contract

claim, one of which is that the defendant undertook

“ ‘intentional acts designed to induce a breach or disruption of

the contractual relationship’ ”].)

Plaintiffs advance two related arguments in making these

claims. First, they contend the Bloom defendants “began acting

as the City’s agent” by “contacting NFL representatives” using

Rand Resources’ promotional materials and company name.

Second, plaintiffs claim that “[a]fter Rand provided the City

with its [EAA] extension request but before the City voted on

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Opinion of the Court by Cuéllar, J.

the extension,” the Bloom defendants met with Mayor Dear and

a councilmember to “conspire about how to breach the EAA and

not extend it.”

These two courses of conduct are more than “merely a

reference to a category of evidence that plaintiffs have to prove

their claims.” (Rand Resources, supra, 247 Cal.App.4th at p.

1096.) The Bloom defendants’ communications with the NFL

served only as evidence of plaintiffs’ fraud-based claims. Yet the

very same communications constitute the conduct by which

plaintiffs claim to have been injured in their intentional

interference claims. (See Park, supra, 2 Cal.5th at p. 1064.)

Similarly, although Bloom’s secret communications with the

City served as evidence of, or context for, claims based in fraud,

those very communications are the interference now complained

of in claims five and six. (See ibid.)

Moreover, the Bloom defendants’ acts giving rise to

plaintiffs’ intentional interference claims were “in connection

with a public issue,” as defined in subdivision (e)(2) and (e)(4) of

the anti-SLAPP statute. In contrast to Wynder’s 2012 promise,

the Bloom defendants lobbied Mayor Dear and a councilmember

in 2014, “[a]fter Rand provided the City with its extension

request but before the City voted on the extension.” The Bloom

defendants’ communications — designed to influence the City’s

renewal decision while the renewal application was pending —

are reasonably considered communications “in connection with

an issue under consideration or review by a legislative . . . body”

within the meaning of subdivision (e)(2). Indeed, they appear to

be part of Bloom’s lobbying the City not to renew the EAA and

instead to use Bloom’s company as the City’s negotiator.

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RAND RESOURCES, LLC v. CITY OF CARSON

Opinion of the Court by Cuéllar, J.

Along with their direct lobbying efforts, the Bloom

defendants allegedly contacted and met with NFL

representatives to discuss a possible NFL franchise in the City.

Although in this case the identity of the City’s exclusive agent

was not a matter of public interest, the NFL’s possible franchise

relocation to the City was a matter of public interest. As in

Tuchscher, the Bloom defendants’ statements to the NFL

regarding that matter of public interest are themselves

statements “in connection with a public issue or an issue of

public interest.” (§ 425.16, subd. (e)(4).)

In short, the Bloom defendants’ communications with the

NFL — like the communications at issue in Tuchscher, and

unlike those in plaintiffs’ fraud-based claims — formed the basis

of the interference claims. Moreover, they were made “in

connection with” the issue of bringing a football franchise to the

City. Likewise, defendants’ statements to Mayor Dear in 2014,

while the EAA extension was pending before the City Council,

also formed the basis of the interference claims and were made

“in connection with” the issue of the EAA renewal that was

before the City Council.

III.

At the heart of this case is a dispute about who represents

a city in its negotiations with a national sports league.

Defendants in that dispute made a motion under the anti-

SLAPP statute, which must be read broadly, in light of its

remedial purpose. (See, e.g., Equilon, 29 Cal.4th at pp. 59–60.)

But we do not understand it to swallow a person’s every contact

with government, nor does it absorb every commercial dispute

that happens to touch on the public interest. What the statute

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Opinion of the Court by Cuéllar, J.

targets in a dispute like this one is liability premised on speech

or petitioning activity “in connection with” a public issue.

While many of the claims at issue here — those alleging

fraud, for instance — necessarily involved oral and written

exchanges, few of those exchanges were themselves the

“wrong[s]” about which plaintiffs complained. (Park, supra, 2

Cal.5th at p. 1060.) With two exceptions, the communications

that did give rise to plaintiffs’ claims were not made “in

furtherance of” defendants’ rights of free speech or petition “in

connection with a public issue.” (§ 425.16, subd. (b)(1).) Such

speech does not merit anti-SLAPP protection.

Plaintiffs’ intentional interference claims are different.

Where other claims arose from speech peripherally related to

the issue of public interest (the relocation of an NFL franchise)

or tenuously involving an issue that would eventually come

before a legislative body (the EAA extension), the intentional

interference claims arose from the Bloom defendants’ speech “in

connection with” both the EAA extension in 2014 and the public

interest issue of attracting the NFL to the City. The Court of

Appeal erred in denying the motion to strike these two claims at

the first stage of the anti-SLAPP analysis. The court’s judgment

in other respects was correct.

We affirm in part and reverse in part the Court of Appeal’s

judgment. We remand the matter for proceedings consistent

with this opinion — including a determination of whether

plaintiffs have established a probability of prevailing on their

intentional interference claims. (§ 425.16, subd. (b)(1).)

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RAND RESOURCES, LLC v. CITY OF CARSON

Opinion of the Court by Cuéllar, J.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

ASHMANN-GERST, J.*

*

Associate Justice of the Court of Appeal, Second Appellate

District, Division Two assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

27

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Rand Resources, LLC v. City of Carson

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 247 Cal.App.4th 1080

Rehearing Granted

__________________________________________________________________________________

Opinion No. S235735

Date Filed: February 4, 2019

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Michael L. Stern

__________________________________________________________________________________

Counsel:

Huang Ybarra Singer & May, Huang Ybarra Gelberg & May, Joseph J. Ybarra, Aaron M. May, Kevin H.

Scott and Carlos A. Singer for Plaintiffs and Appellants.

Aleshire & Wynder, Sunny K. Soltani, William W. Wynder, Anthony R. Taylor and Christina M. Burrows

for Defendants and Respondents City of Carson and James Dear.

Tamborelli Law Group and John V. Tamborelli for Defendants and Respondents Leonard Bloom and U.S.

Capital LLC.

Burke, Williams & Sorensen, Thomas B. Brown and Amy E. Hoyt for League of California Cities and

California State Association of Counties as Amici Curiae on behalf of Defendant and Respondent City of

Carson.

Davis Wright Tremaine, Kelli L. Sager, Thomas R. Burke, Rochelle L. Wilcox and Dan Laidman for

California Newspaper Publishers Association, Californians Aware, The Center for Investigative Reporting,

First Amendment Coalition, The Reporters Committee for Freedom of the Press, A&E Television

Networks, LLC, BuzzFeed, Inc. Cable News Network, Inc., CBS Corporation, Dow Jones & Company,

First Look Media Works, Inc., The Hearst Corporation, NBCUniversal Media, LLC, The New York Times

Company and The Motion Picture Association of America as Amici Curiae on behalf of Defendants and

Respondents City of Carson, James Dear and Leonard Bloom.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Kevin H. Scott

Huang Ybarra Gelberg & May

550 South Hope Street, Suite 1850

Los Angeles, CA 90071-1560

(213) 884-4900

Anthony R. Taylor

Aleshire & Wynder

18881 Von Karman Avenue, Suite 1700

Irvine, CA 92612

(949) 223-1170

John V. Tamborelli

Tamborelli Law Group

21700 Oxnard Street, Suite 1590

Woodland Hills, CA 91367

(818) 710-3696