The opinion
Filed 12/27/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
STEVEN A. SUGARMAN et al., B307753
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV36697)
v.
HALLE BENETT et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Gregory Wilson Alarcon, Judge. Affirmed in part and
reversed in part.
Anderson Kill and Cozen O’Connor, Jeremy E. Deutsch,
Christian V. Cangiano, Erik L. Jackson; Anderson Kill California
and Bridget B. Hirsch for Plaintiffs and Appellants.
Morrison & Foerster, Mark R. McDonald, James R. Sigel,
Joseph R. Palmore and Michael F. Qian for Defendants and
*
Pursuant to California Rules of Court, rule 8.1110, this
opinion is certified for publication with the exception of parts 2
through 7 of the Discussion.
Appellants Halle Benett, Hugh Boyle, John Grosvenor, Jeffrey
Karish, Richard Lashley, Jonah Schnel, and Robert Sznewajs.
Simpson Thacher & Bartlett, Chet A. Kronenberg, Jonathan
Sanders; Scheper Kim & Harris, David C. Scheper, Gregory A.
Ellis, Michael L. LaVetter and Alexandra C. Aurisch for
Defendants and Appellants Banc of California, N.A. and Banc of
California, Inc.
____________________________________
SUMMARY
These are appeals by both plaintiffs and defendants from
trial court rulings on two anti-SLAPP (strategic lawsuits against
public participation) motions to strike seven of the 12 causes of
action in plaintiffs’ complaint. (Code Civ. Proc., § 425.16; further
statutory references are to this section unless otherwise specified.)
Plaintiff Steven A. Sugarman and his trust sued Banc of
California, several individual directors and Banc executives, and
Banc’s lead auditor, in the wake of a scandal that led to plaintiff’s
resignation from his positions at Banc in January 2017. Banc
brought its own anti-SLAPP motion, and seven of the present or
former directors or executives (the Banc individuals) brought a
separate anti-SLAPP motion. The rulings on those two motions
are the subject of this appeal. Two other individual defendants
brought their own separate anti-SLAPP motions, and their appeals
are resolved in a separate opinion. (Sugarman v. Brown (Dec. 27,
2021, B308318).)
The trial court granted in part and denied in part the two
motions to strike that are the subject of this appeal. We conclude
the trial court should have granted both motions in their entirety,
and so affirm the orders in part and reverse them in part. We
2
publish the portion of our opinion holding that statements Banc
made in its Forms 8-K and 10-Q filed with the Securities and
Exchange Commission (SEC), as well as related investor
presentations and conversations, are protected activity under
section 425.16, subdivision (e)(2) as matters under review and
consideration by the SEC. Statements related to financial
projections were also protected under section 425.16,
subdivision (e)(4), as matters of public interest.
FACTS
1. The Parties
Plaintiff is the former chairman of the board, president and
chief executive officer (CEO) of defendants Banc of California, Inc.,
and Banc of California, N.A. (Banc). He resigned his positions at
Banc on January 23, 2017. The Steven and Ainslie Sugarman
Living Trust, a revocable living trust and stockholder in Banc, is
also a plaintiff. For convenience, we refer to both Mr. Sugarman
and the trust in the singular as plaintiff.
Plaintiff sued Banc and the Banc individuals over
statements they made after plaintiff’s resignation. The Banc
individual defendants were executives or members of the board of
directors and include Halle Benett, Hugh Boyle, John Grosvenor,
Jeffrey Karish, Richard Lashley, Jonah Schnel and Robert
Sznewajs. When plaintiff resigned, Mr. Sznewajs became
chairman of the board. Mr. Boyle was Banc’s chief risk officer and
became interim CEO as well when plaintiff resigned.
Mr. Grosvenor was general counsel and corporate secretary.
2. The Complaint
The operative complaint spans 166 pages, plus more than
600 pages of attached exhibits. Plaintiff alleged 12 causes of
action. The seven causes of action at issue in these appeals fall
3
into four categories: (1) fraudulent inducement and negligent
misrepresentation to induce holder to hold securities (the
inducement claims); (2) preventing subsequent employment by
misrepresentation (blacklisting) and tortious interference with
prospective economic advantage; (3) unfair competition and
conspiracy to engage in unfair competition (the UCL claims); and
(4) defamation.
The complaint alleges that plaintiff reported wrongdoing and
self-dealing by defendant Halle Benett and others at Banc, and
then he resigned, after the director defendants refused to address
the wrongdoing (described at length in the complaint). A
separation agreement provided severance payments in exchange
for mutual releases of all potential claims that existed as of
January 23, 2017. Defendants immediately launched a campaign
to attack plaintiff in order to conceal their wrongdoing, dissuade
him from selling his Bank stock, and harm his ability to compete
with defendants.
In addition to concealing “numerous illegal acts” and
breaching various contracts, defendants “also have hidden from
[plaintiff] the true state of Banc’s business including its cratering
financial performance since his departure,” and took various
actions “to obscure the devastating effects their illegal actions had
on Banc’s business, financial performance and prospects.
Defendants made their false representations in order to harm
[plaintiff] including in order to induce [plaintiff] to hold his Banc
securities in reliance on the false information, promises, and
disclosures.” The complaint alleges defendants “have conducted a
coordinated campaign . . . to further their Cover Up, to damage
[plaintiff’s] reputation with a barrage of vindictive, untrue, and
harmful actions; to publish and distribute false and misleading
4
information intended to present [plaintiff] in a negative light; and
to scapegoat [plaintiff] for their wrong-doing and [m]isconduct
which has resulted in tens of millions of dollars of damages to
[plaintiff].”
We will describe the allegations in more detail in our legal
discussion.
3. Background Facts
As might be expected, plaintiff and defendants paint a very
different picture of the circumstances surrounding plaintiff’s
resignation and the aftermath. Some background facts are not
open to dispute.
Plaintiff is a prominent businessman and entrepreneur in
California and headed Banc from 2013 until January 2017.
On October 18, 2016, an anonymous blogger made
allegations of wrongdoing against Banc and senior officers and
directors at Banc, claiming they had extensive ties to notorious
fraudster Jason Galanis, who was known for secretly gaining
control of financial institutions and other public companies and
looting their assets. The blog post concluded Banc was “simply un-
investible.” Plaintiff was prominent among the officers and
directors named in the blog post.
That same day, Banc published a press release announcing it
was aware of the allegations posted; the board, acting through its
disinterested directors, had previously begun a thorough
independent investigation of claims of an affiliation between
Galanis and company personnel; the board had received regular
reports over the last year from the law firm leading the
investigation; and certain claims of affiliations made by Galanis
concerning a company in which plaintiff had an interest were
fraudulent.
5
Three months later, on January 23, 2017, Banc issued
two more press releases. One announced a new chairman of the
board (defendant Sznewajs) and plaintiff’s resignation. The other
provided an update on the independent investigation into the blog
post allegations. It stated that, in response to the allegations in
the blog post, the board formed a special committee that began a
process to review the allegations. On October 27, 2016, Banc’s
independent auditor, KPMG, sent a letter “raising concerns about
allegations of ‘inappropriate relationships with third parties’ and
‘potential undisclosed related party transactions.’ ” On October 30,
2016, the special committee hired a law firm with no prior
relationship with Banc to conduct an independent investigation of
the issues raised by the blog post and questions raised by the
KPMG letter.
The press release further stated the inquiry had determined
that Banc’s initial October 18, 2016 press release contained
inaccurate statements. While an investigation had been conducted
before the blog post appeared, “it appears to have been directed by
Company management rather than any subset of independent
directors,” and the press release did not disclose that the law firm
conducting the investigation had previously represented both Banc
and plaintiff individually. (A declaration from a lawyer for the
Banc individuals states that plaintiff ordered the October 18 press
release to be published; plaintiff’s declaration states others at Banc
drafted and disseminated the release.)
The press release reported that on January 12, 2017, the
SEC “issued a formal order of investigation directed at certain of
the issues that the Special Committee is reviewing,” and
subpoenaed documents from Banc, “primarily relating to the
October 18, 2016 press release and associated public statements.”
6
The January 23, 2017 press release also announced changes
in corporate governance policies, including separating the roles of
board chair and CEO, and indicated Banc was “in the process of
preparing a more rigorous policy to govern review and approval of
proposed related party transactions.”
Also on January 23, 2017, the first of several class action
complaints was filed, alleging violation of federal securities laws,
naming Banc, plaintiff, and two other defendants. The complaint
described the blog post and ensuing events, and alleged false or
misleading communications to investors and failures to disclose
material information relating to the blog post investigation.
On February 9, 2017, the law firm conducting the
independent investigation for the special committee reported that
its inquiry found no evidence Jason Galanis had any control or
undue influence over Banc.
More than two and a half years later, on September 15,
2019, the lead plaintiff in the securities litigation agreed to dismiss
Mr. Sugarman with prejudice. The agreement states the class
action plaintiff found no proof Galanis had any control over
Mr. Sugarman or affected his actions, and the October 18, 2016
press release reflected information provided to Mr. Sugarman.
The agreement provided the dismissal with prejudice was to
become effective upon approval of the agreement as well as a
settlement with Banc.
A month later, plaintiff filed the complaint in this case.
Several weeks after that, plaintiff was voluntarily dismissed,
without prejudice, from Banc stockholder derivative litigation.
On December 20, 2019, the SEC concluded its investigation
of plaintiff, with no action being taken.
7
4. The Anti-SLAPP Motions and Rulings
Banc and the Banc individuals filed separate anti-SLAPP
motions, and Banc joined in the Banc individuals’ motion.
In response, plaintiff submitted an 80-page declaration,
along with several other declarations. The Banc individuals filed
281 objections, and Banc filed more than 200 objections, many of
which were sustained.
The trial court granted Banc’s motion in part, but only with
respect to certain allegations of the inducement, UCL and
defamation claims. The court found Banc did not show that all
statements about plaintiff’s departure from Banc relevant to the
tortious interference claim arose from protected activity. The court
did not strike any cause of action in its entirety.
Similarly, the trial court granted the Banc individuals’
motion only in part, striking some but not all allegations in the
inducement, tortious interference and defamation causes of action,
refusing to strike the UCL claim, and striking the UCL conspiracy
claim.
All parties contend in various respects that the trial court
ruled inconsistently and erroneously failed to consider certain
arguments. Because our review is de novo, we need not consider or
describe further the trial court’s rulings.
All parties filed timely notices of appeal.
DISCUSSION
The anti-SLAPP statute and procedures have been described
many times.
A defendant may bring a special motion to strike any cause
of action “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
8
public issue . . . .” (§ 425.16, subd. (b)(1).) When ruling on an anti-
SLAPP motion, the trial court employs a two-step process. The
moving defendant bears the initial burden of establishing that the
challenged allegations or claims “ ‘ “aris[e] from” protected activity
in which the defendant has engaged. [Citations.] If the defendant
carries its burden, the plaintiff must then demonstrate its claims
have at least “minimal merit.” ’ [Citation.] If the plaintiff fails to
meet that burden, the court will strike the claim.” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 884.)
In making these determinations, the trial court considers
“the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) “As to the second step, a plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.’ ” (Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 788.)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
1. The Inducement Claims: Protected Activity
a. The allegations and evidence
The fraudulent and negligent inducement claims were based
on the same facts, alleging the Banc defendants made
misrepresentations to induce plaintiff to hold, rather than sell,
Banc common stock and warrants.
The complaint alleged Banc made misrepresentations in
investor presentations and in public disclosures in Forms 8-K and
10-Q filed with the SEC. “The SEC requires disclosure of specified
material changes and other events ‘that the registrant deems of
importance to security holders’ whenever they occur via a Form 8-
9
K.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 263, fn. 2
(Hawran).) A Form 10-Q is a quarterly report of financial
performance that publicly traded companies must file with the
SEC.
For example, on January 30, 2017, defendants hosted an
investor conference call. Defendant Boyle “provided very
optimistic guidance to investors given the enormous changes at the
Banc. [Defendants] indicated the Banc would make $2.00 per
share and achieve very attractive financial returns across multiple
metrics. They indicated [plaintiff’s] departure would not result in
material earnings disruption and would have an immaterial
impact on lending, deposits and earnings.” Plaintiff’s complaint
cites and attaches Banc’s Form 8-K’s filed with the SEC, which
attach the investor presentation materials containing the earnings
per share guidance.
As another example, Banc’s 10-Q report for the quarter
ending March 31, 2017, stated that Banc “will further enhance our
risk assessment and monitoring activities by implementing new
training activities, hiring additional capable resources, improving
our certification and sub-certification quarterly processes, and
enhancing our Risk and Fraud Risk assessment processes to
ensure appropriate resources and controls are in place to mitigate
risks commensurate with the risk assessment.”
Defendants’ misrepresentations included “that [defendants]
would conduct sufficient and detailed investigations, free from
conflict, concerning the allegations raised by all of the various
whistleblower complaints.” This included representations made by
defendant Lashley in a telephone call with plaintiff on April 6,
2017.
10
Plaintiff alleged that in the telephone call with Mr. Lashley,
he pointed out certain disclosures in a March 6, 2017 investor
presentation he believed to be false. He asked Mr. Lashley to
“conduct a full review of the disclosures and ensure all
misstatements were corrected.” These included plaintiff’s concerns
about whether Banc would be able to achieve its $2 earnings-per-
share guidance, and “numerous concerns relating to malfeasance
and potentially false and misleading disclosures at Banc.”
Defendant Lashley told plaintiff he would personally ensure Banc’s
financials and public disclosures were reliable and accurate.
According to plaintiff, in the telephone call, Lashley also told
plaintiff that “he hoped [plaintiff] would continue to be a large
shareholder” and said plaintiff would be pleased if he continued to
hold his shares “because the longer term performance of the shares
would improve due to the actions he was taking to clean up the
governance issues that [plaintiff] had identified.” The complaint
alleged all defendants had actual knowledge those representations
were made “and were false at the time they were made,” and
defendants had no intention “of conducting any investigation
sufficient to insure the truth or accuracy of the Banc’s publicly
filed financial disclosures.”
Plaintiff relied on Lashley’s assurances, because soon after,
an April 10 investor presentation and accompanying Form 8-K
filing “appeared to address, and quickly, some of the important
issues that I had raised with Lashley during our call on April 6.”
Plaintiff alleged these turned out to be “cosmetic changes.”
Earnings per share missed the January 30, 2017 guidance by
over 60 percent.
11
b. Contentions and conclusions
To begin, we state the categories of activity protected under
the anti-SLAPP statute: any written or oral statement or writing
(1) “made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law” or (2) “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” or (3) “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.” (§ 425.16. subd. (e)(1)–(4).)
As mentioned at the outset, Banc defendants sought to strike
the inducement claims in their entirety. They relied on both
section 425.16, subdivision (e)(2) (statements made in connection
with an issue under consideration or review, in this case by the
SEC), and on subdivision (e)(4) (statements in connection with a
public issue or an issue of public interest).
We agree with the Banc defendants that statements Banc
made in its Forms 8-K and 10-Q are protected under
section 425.16, subdivision (e)(2) as matters under review and
consideration by the SEC. Indeed, statements on governance
issues related directly to the subject matter of the then-pending
investigation the SEC began on January 12, 2017. Statements
related to financial projections were also protected under
subdivision (e)(4), as matters of public interest. Defendant
Lashley’s statements on April 6, 2017, were protected, as they
were closely related to the investor presentations and governance
12
issues that were the subject of Form 8-K and 10-Q filings at the
SEC.
i. Section 425.16, subdivision (e)(2)
(1) The investor presentations and
accompanying SEC filings
In our separate opinion in the Brown appeal, we concluded
that statements in an audit report attached to a 10-K annual
report filed with the SEC were protected statements made “in
connection with an issue under consideration or review” by the
SEC. (§ 425.16, subd. (e)(2).) We explained that the SEC is
required by law to review disclosures made by issuers of securities,
“including reports filed on Form 10-K,” “on a regular and
systematic basis” and no less frequently “than once every 3 years.”
(15 U.S.C. § 7266, subds. (a) & (c).) “Such review shall include a
review of an issuer’s financial statement.” (15 U.S.C. § 7266,
subd. (a).) This alone, we concluded, subjected plaintiffs’ claims
against Banc’s lead auditor, based on the 10-K report, to the anti-
SLAPP statute. (Sugarman v. Brown, supra, B308318.)
Here, we reach the same conclusion with respect to the
Form 8-K and Form 10-Q filings at issue. Those SEC filings and
the related investor presentations were protected activity under
section 425.16, subdivision (e)(2).
In Hawran, supra, 209 Cal.App.4th 256, “the trial court
found [the defendant company’s] Form 8-K put the issues
identified in the form under consideration or review by the SEC,”
and that the company’s press release, “from which [the plaintiff’s]
claims arose, was thus protected as a writing ‘made in connection
with an issue under consideration or review by . . . any other
official proceeding authorized by law,’ ” quoting section 425.16,
subdivision (e)(2). (Hawran, at p. 269.) The Court of Appeal
13
continued: “This finding alone subjects [the plaintiff’s] claims to
section 425.16.” (Ibid.) In Hawran, the court went on to explain
the plaintiff did not challenge the trial court’s finding on appeal, so
the court “need not reach the correctness of that finding.” (Id. at
p. 270.)
We think the trial court in Hawran correctly found the
defendant’s Form 8-K and press releases were protected. Indeed,
in connection with a different issue, Hawran observed that the
Form 8-K “was filed for the purpose of complying with the SEC’s
mandatory disclosure requirements,” and “may constitute a
writing before an official proceeding.” (Hawran, supra,
209 Cal.App.4th at p. 281.) As we noted earlier, Form 8-K filings
are required by the SEC to report specified material changes and
other events the registrant deems important to investors. “The
SEC’s reporting requirement is designed to make accurate
information available to the investing public, and the mandatory
filings allow the SEC to determine whether to investigate a
particular transaction.” (Id. at p. 263, fn. 2.) These requirements
subject the information reported to SEC review, and accordingly
the statements in the reports are protected under section 425.16,
subdivision (e)(2).
Plaintiff contends the investor presentations and Form 8-K
and Form 10-Q statements are not protected, because the investor
presentations were not designed to trigger an SEC investigation,
and because not every statement to the SEC is protected. We do
not agree that an SEC filing must be designed to trigger an
investigation in order to be protected activity, and the cases
plaintiff cites do not persuade us otherwise. Whether or not all
statements to a regulator are protected, it is clear to us that these
statements are.
14
Plaintiff relies heavily on Moser v. Encore Capital Group,
Inc. (S.D.Cal., May 2, 2006, No. 04CV2085) 2006 U.S. Dist.Lexis
109142. That case involved allegedly defamatory statements in a
Form S-1, a registration statement required before securities may
be sold. (Id. at p. *11.) The district court observed that “no report
of wrongdoing or purpose of triggering an investigation is involved
in the filing of a Form S-1” (id. at p. *18), and “[t]he specifics of the
employment dispute between [the plaintiff] and [the defendant]
were irrelevant to the SEC’s determination whether [the
defendant] may sell securities more than two years after the
employment dispute” (id. at pp. *20–21). The court concluded:
“Since the purpose of a Form S-1 is not to trigger or commence an
investigation, and since the employment dispute . . . was not an
issue under consideration or review before the SEC,” the
defendants failed to meet their burden to show protected activity.
(Id. at p. *21, italics added.)
Whether or not one agrees with Moser, the case is inapt here.
Unlike the two-year-old employment matter reported in Form S-1
filed to obtain authorization to sell stock, here the “issue under
consideration or review” is the very subject matter of the 8-K
filings and investor presentations: the company’s financial
projections. Moser is irrelevant. Plaintiff also cites
ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009
and Fontani v. Wells Fargo Investments, LLC (2005)
129 Cal.App.4th 719, 731–732,1 cases that involved
communications soliciting an investigation (ComputerXpress) and
1 Fontani was disapproved on other grounds in Kibler v.
Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192,
203, footnote 5.
15
reporting misconduct and triggering an investigation (Fontani).
Those cases do not hold that regulatory filings are protected
activity only if they were designed to trigger an investigation or
report misconduct.2
(2) The Lashley conversation
Plaintiff contends that defendant Lashley’s private
statements to him during the April 6, 2017 telephone conversation
are not protected “for similar reasons.” We have rejected those
reasons. Mr. Lashley’s statements related directly to the investor
presentations. For example, plaintiff pointed out disclosures he
2 Plaintiff cites other inapt cases. (A.F. Brown Electrical
Contractor, Inc. v. Rhino Electric Supply, Inc. (2006)
137 Cal.App.4th 1118, 1129 [stop notices a contractor served on a
school district, requiring the district to withhold funds due the
general contractor, did not involve an “official proceeding” and
subdivision (e)(1)—statements “made before a[n] official
proceeding”—was inapplicable]; City of Industry v. City of
Fillmore (2011) 198 Cal.App.4th 191, 215 [claims based on the
routine filing of tax returns at the State Board of Equalization,
which transmits tax revenues to local jurisdictions based on the
returns, do not arise from protected activity]; DeFrees v. Kirkland
(C.D.Cal. Aug. 23, 2012, Nos. CV 11-4272; CV 11-4574) 2012
U.S.Dist.Lexis 195922 [denying frivolous anti-SLAPP motion; suit
was based on defendants raiding the company, not on protected
speech]; Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th
610, 627 [alleged promissory fraud in a statement made to the
plaintiff about renewal of an exclusive agency agreement;
statement was made two years before the renewal issue even came
before the City Council].) Plaintiff requests judicial notice of the
complaint in the DeFrees case, which mentions a Form 8-K and a
Form 10-Q amendment, “similar to the SEC filings at issue in this
case.” That changes nothing in our evaluation of DeFrees, and so
we deny the request for judicial notice.
16
believed were false in the March 6, 2017 presentation, and
Mr. Lashley assured him he would conduct a full review of the
disclosures and ensure they were reliable and accurate. The
connection between Mr. Lashley’s statements and the investor
presentations and SEC filings is clear, and Mr. Lashley’s
statements are protected under subdivision (e)(2) as well.
ii. Section 425.16, subdivision (e)(4)
Section 425.16, subdivision (e)(4) protects any conduct in
furtherance of the exercise of free speech or petition rights “in
connection with a public issue or an issue of public interest” (ibid.),
and is referred to as “the catchall provision” (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 140 (FilmOn)). As we
concluded in our separate opinion on defendant Turner’s anti-
SLAPP motion, statements about Banc’s financial projections
made in earnings calls, and in the 8-K reports to the SEC were
public statements relating to Banc’s financial position and were
likely to impact individual investors and the market. They
therefore qualify as protected activity under the catchall provision.
“[A] publicly traded company with many thousands of
investors is of public interest because its successes or failures will
affect not only individual investors, but in the case of large
companies, potentially market sectors or the markets as a whole.”
(Global Telemedia Int’l, Inc. v. Doe 1 (C.D.Cal. 2001)
132 F.Supp.2d 1261, 1265.) The financial projections of a large,
publicly traded company like Banc are of great interest to a
significant community of investors.
Consequently, we have no difficulty concluding that
statements by Banc and Banc individuals at investor presentations
and on earnings calls, and the earnings guidance in the 10-Q
report, had a high “ ‘degree of closeness’ ” (FilmOn, supra,
17
7 Cal.5th at p. 150) to the public interest in the performance of a
publicly traded company. Those statements were thus made “in
connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e)(4).)
[Begin nonpublished portion]
2. The Inducement Claims: Probability of Prevailing
We conclude plaintiff failed to make a prima facie showing
he would prevail on his fraudulent and negligent inducement
claims against Banc and Banc individuals.
Plaintiff contends he submitted evidence that Mr. Lashley’s
representations in the April 2017 telephone conversation were
false and meant to convince plaintiff to continue holding his
shares. Plaintiff cites his own declaration and the complaint,
without acknowledging that objections were sustained to much of
the cited evidence.
We do not think plaintiff came close to showing anything
Mr. Lashley said was false. Mr. Lashley responded to plaintiff’s
concerns about the $2 earnings-per-share guidance, and his
concerns relating to “malfeasance and potentially false and
misleading disclosures at Banc.” Mr. Lashley assured plaintiff his
concerns would be investigated “and, if appropriate, action would
be taken to disclose and correct them.”
We see nothing in the evidence showing Mr. Lashley’s
assurances were false when made. Indeed, plaintiff admits that
changes were made to the financial projections in the next
(April 10, 2017) investor presentation; he simply criticizes them as
“cosmetic.” Plaintiff offers no proof that Mr. Lashley did not
investigate his concerns. In sum, plaintiff failed to state a prima
facie case of fraudulent (or negligent) inducement to hold
securities, which requires the same showing as any other kind of
18
misrepresentation claim. (See Small v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167, 173–174; cf. id. at p. 184 [“a complaint for
negligent misrepresentation in a holder’s action should be pled
with the same specificity required in a holder’s action for fraud”].)
Next, plaintiff contends that defendant Boyle’s statements
during the May 3, 2017 earnings call were false, that defendant
Grosvenor was also on the call, and that other director defendants,
as members of the audit committee, approved the earnings call.
On that call, Mr. Boyle stated Banc needed to amend its earlier
$2 earnings-per-share guidance, but plaintiff alleges he gave only
one reason and did not include “other pertinent problems at Banc,”
instead focusing on the financial strength and stability of Banc,
“which was knowingly false.” Plaintiff shows no probability of
prevailing on this claim either.
Statements or predictions about future events are deemed
nonactionable opinions. Plaintiff cites federal district court cases
stating that forward-looking statements accompanied by
cautionary language are not immunized under federal securities
laws where “plaintiffs have alleged facts suggesting that
defendants had actual knowledge of the falsity of their
statements.” (E.g., In re PMI Group, Inc. (N.D.Cal. Nov. 2, 2009,
No. C 08-1405) 2009 U.S.Dist.Lexis 101582, at p. *11 (PMI
Group).) These cases do not help plaintiff, who presented no
admissible evidence suggesting that defendants knew the earnings
guidance or statements in the earnings call were false when made.
Plaintiff says we may infer knowledge of falsity of the
earnings guidance, and defendants’ intent to induce plaintiff to
hold his shares, from other evidence. Plaintiff cites conversations
between defendants Boyle and Turner in April 2017, “admitting
that Banc’s earnings results had not come in and they would look
19
to blame [plaintiff] for that and Banc’s continued failures to meet
earnings going forward.” That post hoc evidence, however, plainly
has no bearing on the earnings guidance at the time it was issued.
Plaintiff says falsity and fraudulent intent may also be
inferred from defendants’ attempts to pump up earnings by
liquidating capital assets, their participation in the cancellation of
bonuses to inflate Banc’s earnings, and “their attempts to
intimidate and silence any potential whistleblowers.” Plaintiff
does not explain why we should infer from these alleged activities
that defendants intended to induce him not to sell his stock by
issuing false earnings guidance, and we are not persuaded to draw
that inference. As the PMI Group case that plaintiff cites says, an
inference of scienter must be more than merely reasonable or
permissible, but must be “ ‘cogent and compelling.’ ” (PMI Group,
supra, 2009 U.S.Dist.Lexis 101582, at p. *7.)
Plaintiff also cites his own declaration quoting from his
complaint—and nothing more—as “evidence” that Mr. Turner
“acknowledged to others that as early as February 2017, earnings
per share were coming in well below guidance and Banc was
seeking to manipulate earnings to obscure that fact from the
market and [plaintiff].” Mr. Turner told other employees, plaintiff
says, “including Jeff Seabold, the then-Vice Chairman at Banc,
that he wanted to sell any asset that could generate a profit ‘that
was not bolted to the ground,’ since earnings were well below
public expectations.” Plaintiff offered no declaration from
Mr. Seabold or “others.” Plaintiff neglected to mention in his brief
that Mr. Turner’s objection to his declaration was sustained.
Plainly, recitation of the complaint in his declaration is not
evidence.
20
Finally, plaintiff asserts that his negligent
misrepresentation claim “has minimal merit for similar reasons.”
Just as we are unable to infer falsity and fraudulent intent from
the evidence plaintiff cited, we similarly see no basis for inferring
defendants had no reasonable ground for believing the truth of
their financial projections at the time they were made.
In short, plaintiff has not established a prima facie case for
his claims of fraudulent and negligent inducement to hold
securities. The trial court should have struck those causes of
action in their entirety.
3. The Tortious Interference and UCL Claims:
Protected Activity
a. The allegations and evidence
In his claims for violation of the Labor Code (blacklisting),
tortious interference with prospective economic advantage,
violation of the UCL and conspiracy to violate the UCL, plaintiff
alleged that defendants made disparaging statements that caused
him reputational harm and interfered with his business
relationships after he left Banc.
The Banc defendants’ anti-SLAPP motions contended,
among other things, that all the challenged statements addressed
plaintiff’s tenure at and departure from Banc, and were protected
activity under section 425.16, subdivision (e)(4), as statements or
conduct “in connection with . . . an issue of public interest.”
Plaintiff argued otherwise.
Plaintiff alleged Banc defendants “made misrepresentations
about [plaintiff] to the press, banking journals, investment
banking firms, regulators, auditors, and other banking industry
participants, including rival banks in order to harm [plaintiff’s]
ability to gain subsequent employment.” These included
21
statements that plaintiff “engaged in misconduct as CEO of Banc,
committed illegal acts, and instituted harmful business practices
at Banc.” Plaintiff further alleged he had “various economic
relationships” with 17 entities, and Banc defendants engaged in
“various forms of wrongful acts which they knew would disrupt the
aforementioned economic relationships.”
Similarly, plaintiff’s complaint alleged that Banc defendants
engaged in unfair competition against plaintiff by pressuring third
parties not to do business with him, and by making false and
defamatory statements that plaintiff had engaged in unlawful
behavior. The complaint alleged plaintiff and defendants are
competitors, and defendants’ attacks on plaintiff’s “reputation,
relationships, financial strength, and ability to fairly compete with
Banc” were made “in order to keep [plaintiff] from competing with
the Defendants in the banking business and within private equity
and financial services.” This resulted in plaintiff’s inability to
pursue suitable replacement employment or other profitable
partnerships with banks and other financial services
organizations.
As for the evidence, plaintiff submitted a declaration from
Martice Mills, a bank employee until November 2017, who stated
that defendant Boyle and others “discussed how they were going to
make sure that [plaintiff] was ‘crushed.’ ” Mr. Mills further stated
they discussed how to blame plaintiff for everything negative at
Banc. They also said they knew what they were doing would cause
plaintiff’s future ventures to fail, and they wanted them to fail, “or
the suggestion that he was to blame would not be as plausible.”
Mr. Mills described other conversations among Banc employees
where Mr. Boyle stated that plaintiff “did improper and illegal
things while CEO of Banc,” and he “understood them to be
22
communicating that [plaintiff] had been fired by the Company for
breaking securities and other laws and was the cause and focus of
the SEC investigation.”
A declaration from Paul Simmons, chief credit officer of Banc
at the time, stated he attended an investor conference in March
2017. He was standing with Mr. Turner and defendant Boyle,
when “[n]umerous analysts and investors approached us to find
out what really happened with [plaintiff’s] departure. Turner and
Boyle told the analysts and investors that [plaintiff] was unethical,
that he had broken securities laws and bank regulations, that he
had engaged in self-dealing, that Banc was hard pressed to recover
from the damage that he had done to Banc.”
In his declaration, plaintiff identified several entities with
whom he had economic relationships, and he contends he and his
ventures “were denied business and financing opportunities” as a
result of pressure defendants put “on Banc investors, potential
investors, and [plaintiff’s] potential business and financing
contacts.” The Simmons declaration stated that J.P. Morgan
Chase, Silvergate, Texas Capital Bank and Wells Fargo “declined
to do business with” one of plaintiff’s businesses, and the Mills
declaration stated Aaron Wade “delayed his investments and loan
acquisitions” from another of plaintiff’s ventures.
Plaintiff cites his own declaration, which related hearsay
statements about disparaging things several defendants said about
him. Plaintiff does not mention that Banc defendants’ objections to
this evidence were sustained.
Plaintiff identified several community nonprofit
organizations, to which Banc had previously made donations.
Plaintiff’s complaint alleged that in 2019, Banc employee
Christopher Garcia was instructed by various individual
23
defendants to tell those nonprofit organizations that plaintiff
engaged in misconduct while CEO, had fraudulent business
dealings, and that Banc would withhold donations if they
associated with plaintiff.
Banc filed a declaration from Mr. Garcia in support of its
anti-SLAPP motion, denying that he made any such statements,
and denying that defendants instructed him to make false or
defamatory statements about plaintiff. In opposition, plaintiff
submitted a declaration from Gary Dunn, who was Banc’s
Community Reinvestment Act officer until he retired on
September 30, 2018. Mr. Dunn’s declaration recounts various
hearsay conversations he had with Mr. Garcia and nonprofit
personnel in 2019, objections to which were sustained.
Plaintiff did not offer any declarations from any of the
companies or nonprofit organizations that he alleges declined to do
business with him.
b. Contentions and conclusions
We conclude that all the statements concerning the
circumstances surrounding plaintiff’s departure from Banc,
including statements that plaintiff engaged in misconduct, illegal
activities, and the like, were protected activity under
subdivision (e)(4), as communications related to an issue of public
interest. This includes communications to the press, regulators,
auditors, nonprofits, investors, rival banks and other banking
industry participants. All were part of a very public controversy
over the circumstances of plaintiff’s departure from the bank.
Our analysis, which also appears in our separate opinion in
the Turner appeal, is informed by FilmOn, which provides
direction on how a court should analyze whether communications
qualify for anti-SLAPP protection under the catchall provision.
24
(FilmOn, supra, 7 Cal.5th at pp. 142–143.) The court first
concluded that we “must consider the context as well as the
content of a statement in determining whether that statement
furthers the exercise of constitutional speech rights in connection
with a matter of public interest.” (Id. at p. 149.) The court then
explained:
“The inquiry under the catchall provision . . . calls for a two-
part analysis rooted in the statute’s purpose and internal logic.
First, we ask what ‘public issue or . . . issue of public interest’ the
speech in question implicates—a question we answer by looking to
the content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask
what functional relationship exists between the speech and the
public conversation about some matter of public interest. It is at
the latter stage that context proves useful.” (FilmOn, supra,
7 Cal.5th at pp. 149–150.)
“In articulating what constitutes a matter of public interest,
courts look to certain specific considerations, such as whether the
subject of the speech or activity ‘was a person or entity in the
public eye’ or ‘could affect large numbers of people beyond the
direct participants’ (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883,
898 []); and whether the activity ‘occur[red] in the context of an
ongoing controversy, dispute or discussion’ [citation], or ‘affect[ed]
a community in a manner similar to that of a governmental entity’
[citation].” (FilmOn, supra, 7 Cal.5th at pp. 145–146.)
“We are not concerned with the social utility of the speech at
issue, or the degree to which it propelled the conversation in any
particular direction; rather, we examine whether a defendant—
through public or private speech or conduct—participated in, or
furthered, the discourse that makes an issue one of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 151.) “[A] statement is
25
made ‘in connection with’ a public issue when it contributes to—
that is, ‘participat[es]’ in or furthers—some public conversation on
the issue. [Citation.] But the inquiry of whether a
statement contributes to the public debate is one a court can
hardly undertake without incorporating considerations of
context—including audience, speaker, and purpose.” (Id. at
pp. 151–152.)
In FilmOn, the defendant provided confidential reports to its
clients that labeled websites as containing “adult content” or
“copyright infringement” material, and one of the websites sued
the defendant, alleging disparagement of its digital distribution
network. (FilmOn, supra, 7 Cal.5th at p. 140.) The reports were
issued privately, “to a coterie of paying clients,” who use the
information “for their business purposes alone. The information
never entered the public sphere, and the parties never intended it
to.” (Id. at p. 153.) The court found the defendant’s reports “—
generated for profit, exchanged confidentially, without being part
of any attempt to participate in a larger public discussion—do not
qualify for anti-SLAPP protection under the catchall provision,
even where the topic discussed is, broadly speaking, one of public
interest. This is not because confidential statements made to serve
business interests are categorically excluded from anti-SLAPP
protection. It is instead because [the defendant’s] reports are too
tenuously tethered to the issues of public interest they implicate,
and too remotely connected to the public conversation about those
issues, to merit protection under the catchall provision.” (Id. at
p. 140.)
In contrast to the reports involved in FilmOn, here, the
circumstances of plaintiff’s departure from Banc were a topic of
considerable public discussion at the time. Beginning on
26
October 18, 2016, when the blog post first publicized the
allegations against Banc and plaintiff, the record is replete with
public discussion of Banc, plaintiff’s conduct at Banc and his
departure on January 23, 2017. There were press releases from
Banc, securities fraud lawsuits, an SEC investigation, and articles
on websites and in the Los Angeles Times and other publications.
By way of example of the last category, a Bloomberg Law news
story on March 2, 2017, about Banc’s 10-Q and 10-K filings states
“[a]dverse opinion on internal controls due to ‘inadequate tone at
the top’ isn’t surprising given former CEO Steven Sugarman’s
quick exit, inaccurate press release in Oct., historically-weak
corporate governance, excessive related-party transactions” and
that “Banc disclosed other related-party transactions from
Sugarman era that it’s taken steps to curtail.” (Maranz, Banc of
California’s ‘Clean’ Filings Remove Overhang: FBR, Bloomberg
Law (Mar. 2, 2017).)
In short, as the trial court aptly put it, “review of the
complaint and filings in this motion disclose the high-profile
nature of [plaintiff’s] departure from Banc,” so that statements
“related to [plaintiff’s] tenure at and departure from Banc are
issues of public interest.” Plaintiff “ ‘was a person . . . in the public
eye’ ” and the speech occurred “ ‘in the context of an ongoing
controversy, dispute or discussion’ ” (FilmOn, supra, 7 Cal.5th at
p. 145), so we have no doubt the reason for plaintiff’s departure
was a matter of public interest.
That brings us to “addressing the specific nature of
defendant’s speech and its relationship to the matters of public
interest.” (FilmOn, supra, 7 Cal.5th at p. 152.) Here, the requisite
connection between the challenged statements and the issue of
public interest is direct, not tenuous or remote. Defendants’
27
communications to the press and others after plaintiff resigned
reflected Banc’s position in the ongoing, very public controversy
about Banc’s and plaintiff’s conduct. The context—audience,
speaker and purpose—demonstrate defendants’ speech was “in
connection with” an issue of public interest, as required by
FilmOn.
Plaintiff insists defendants’ statements “were made for the
private purpose of ‘crushing’ Sugarman,” were “private
conversations meant to be kept private,” and did not “contribute to
public conversation” as specified in FilmOn. Yet plaintiff offered
evidence that defendants made statements about him to
“[n]umerous” analysts and investors at a conference of securities
analysts and institutional investors, to whom plaintiff was well
known. Plaintiff says defendants’ statements to other banks and
to the press caused Pacific Premier Bank, Royal Bank, J.P. Morgan
Chase, Citibank and several others to decide not to work with
plaintiff or companies associated with him. Banc’s statements,
both private and public, all related directly to the issue under
public discussion.
Much of plaintiff’s brief is spent discussing Murray v. Tran
(2020) 55 Cal.App.5th 10. In Murray, unlike here, there was no
ongoing public conversation about the issue of public interest—
which was the plaintiff’s competence as a dentist. (Id. at p. 30.)
The court found, for example, that certain of the challenged
statements were not made to patients or anyone outside the
parties’ dental practice, and were made solely for private purposes,
such as to enhance the quality of dental care at the practice. (Id.
at p. 36.) Here, by contrast, there clearly was an existing public
discussion about the circumstances surrounding plaintiff’s
departure from Banc.
28
As FilmOn tells us, “[w]e are not concerned with the social
utility of the speech at issue,” but rather with whether a defendant
“participated in, or furthered, the discourse that makes an issue
one of public interest.” (FilmOn, supra, 7 Cal.5th at p. 151.) That
standard is met here.
c. Plaintiff’s commercial exemption claim
Plaintiff contends that even if Banc statements to investors
and potential investors would otherwise qualify as protected
activity, the statements are exempt from the anti-SLAPP statute
under the commercial speech exemption in section 425.17,
subdivision (c) (section 425.17(c)). Plaintiff is wrong. As FilmOn
and other cases tell us, the exemption covers only a subset of
commercial speech: comparative advertising. (FilmOn, supra,
7 Cal.5th at p. 147.) The statements plaintiff cites in his brief do
not bear any resemblance to comparative advertising.
Plaintiff appears to acknowledge that he must establish the
defendants’ alleged statements constituted comparative
advertising, but all he says on the point is this: “Not only did Banc
Defendants disparage Sugarman, but they also touted Banc in an
effort to secure clients.” For this point he cites five statements
from the declaration of Martice Mills. Objections were sustained
to all the statements plaintiff relies on from the Mills declaration.
Mr. Mills described hearsay statements by representatives of CIT
Bank and East West Bank that they might invest in Banc “now
that Mr. Sugarman was gone.” Mr. Mills also described a double
hearsay statement by Mr. Turner that Banc’s new CEO told
potential investors that “now that [plaintiff] was out at Banc, Banc
could be operated properly and legally.”
We do not see how any of these statements could conceivably
be considered “comparative advertising,” or otherwise fit within
29
the specifications of section 425.17(c), and plaintiff cites no
authority remotely suggesting that statements of the kind he cites
meet the requirements of the statute.
4. The Tortious Interference Claim: Probability of
Prevailing
Plaintiff did not satisfy his burden of showing a probability
of prevailing on his claim against Banc defendants of intentional
interference with prospective economic advantage. (Plaintiff
makes no argument in his briefs concerning the merits of the
blacklisting claim, so we need not discuss it separately.) The
elements of the tort are “ ‘ “(1) an economic relationship between
the plaintiff and some third party, with the probability of future
economic benefit to the plaintiff; (2) the defendant’s knowledge of
the relationship; (3) intentional acts on the part of the defendant
designed to disrupt the relationship; (4) actual disruption of the
relationship; and (5) economic harm to the plaintiff proximately
caused by the acts of the defendant.” [Citations.]’ ” (Korea Supply
Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (Korea
Supply).) “[T]he third element also requires a plaintiff to plead
intentional wrongful acts on the part of the defendant designed to
disrupt the relationship.” (Id. at p. 1154.)
Plaintiff contends he established a probability of future
economic benefits that Banc defendants disrupted. He cites to the
record, without identifying or describing the evidence he cites. As
it happens, objections were sustained to all of it, although plaintiff
does not tell us this until the final part of his opening brief.
Plaintiff contends the trial court abused its discretion in
sustaining “certain of Banc Defendants’ evidentiary objections
based on hearsay, lack of foundation, and lack of personal
knowledge.” Plaintiff says the court “inconsistently ruled” on
30
objections by the various defendants, citing the record but not
describing the testimony, the objection or the rulings. He says that
his evidence is not hearsay. He says “many of the statements” are
admissions by Banc defendants. He says that his own declaration
and those of former Banc employees (Mr. Mills, Mr. Simmons,
Heather Endresen, and Mr. Dunn) “concerning statements made
by other Banc employees, including Turner, Boyle, Benett,
Grosvenor, and Garcia” are party admissions that are “inconsistent
with positions taken by them in this action,” and again cites to the
record without identifying the declaration or describing the
statements.
Plaintiff says his opposing declarations describe “first-hand
knowledge” of statements by Banc defendants that are inconsistent
with Banc defendants’ supporting declarations, and so are
admissible as prior inconsistent statements. Again, he string-cites
his own and other declarations without identifying them, and
without connecting them to any particular Banc declaration.
For example, plaintiff cites defendant Benett’s declaration,
where Mr. Benett states he “never made statements to anyone
with the intent to prevent Sugarman from being hired in any
capacity,” and he “was not aware that Sugarman had any economic
relationships with any of the entities listed” in the complaint and
did not “make any statements with the intent to disrupt any
economic relationship Sugarman sought or had with those
entities.” Then plaintiff cites his opposing declarations, none of
which describes any “first-hand knowledge” of Mr. Benett making
such statements. The court is not obliged to look up a string of
unidentified citations to evidence to see if and how one of them
might support plaintiff’s claim—that is plaintiff’s burden to
explain, and he has not done so.
31
The only testimony plaintiff discusses at any length is
Mr. Dunn’s declaration about Mr. Garcia’s statements to various
nonprofit entities, which we described above. Mr. Dunn’s
testimony was excluded, and plaintiff claims that was error
because testimony with multiple layers of hearsay is admissible if
it consists of admissions and prior inconsistent statements.
Plaintiff says the board’s statements to Mr. Garcia are admissions,
and Mr. Garcia’s statements to Mr. Dunn are inconsistent with
Mr. Garcia’s declaration.
We need not enter this thicket of contentions, because
regardless of Mr. Dunn’s evidence, plaintiff has not made a prima
facie case of tortious interference with prospective economic
advantage based on his relationships with the nonprofit
organizations. The tort requires an economic relationship with a
probable future economic benefit, defendant’s knowledge of the
economic relationship, and its actual disruption. (Korea Supply,
supra, 29 Cal.4th at p. 1164.)
Plaintiff cites only his own declaration that he had “existing
relationships” with two nonprofits: National Diversity Coalition
and National Asian American Coalition. National Diversity
Coalition provided a community advisory board for one of
plaintiff’s companies and “helped distribute loans to underserved
communities.” This resulted in “important economic opportunities
being extended to those communities and resulted in joint
ventures” between plaintiff’s companies and the Coalition.
Plaintiff stated he “[l]ost advisory board members who were
critical to expanding markets and executing deals and we lost
partners for distributing loans in markets.” National Asian
American Coalition was a “similar situation,” with the nonprofit
“back[ing] out of our deal to form joint ventures to acquire FHA
32
non-performing loan pools to rehab and rent foreclosed homes to
underserved communities.”
This is not the sort of evidence of a specific “business
relationship and corresponding expectancy” for plaintiff that is
required to establish interference with prospective economic
advantage. Moreover, plaintiff has produced no evidence that any
defendants knew of these anticipated “deal[s]” with the nonprofits
to distribute loans or form joint ventures. Banc knew plaintiff had
relationships with the nonprofits; that is why Banc made
donations to them. But plaintiff presented no evidence the Banc
defendants knew of the economic relationships—the prospective
“deals” plaintiff describes in his declaration.
Returning to plaintiff’s claims of error in sustaining
objections to his tortious interference evidence, he next cites
Evidence Code section 1250. He claims “many of the statements”
are admissible because they are offered to prove the customer’s
“then-existing state of mind” and “their motives for doing or not
doing business with Banc or Sugarman.” Once again, plaintiff
merely string-cites the record without identifying or describing the
evidence to explain, if he can, why the “existing state of mind”
exception to the hearsay rule would apply to any of the “many”
statements in question.
Finally, plaintiff cites Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, which held that
“evidence may be considered at the anti-SLAPP motion stage if it
is reasonably possible the evidence set out in supporting affidavits,
declarations or their equivalent will be admissible at trial.” (Id. at
p. 947.) Hearsay and irrelevant evidence are not admissible at
trial.
33
In sum, plaintiff has demonstrated no abuse of discretion in
the trial court’s evidentiary rulings, and there is no admissible
evidence sufficient to satisfy the elements of a claim of tortious
interference with prospective economic advantage against Banc
defendants.
5. The Defamation Claims: Protected Activity
a. The allegations and evidence
In his defamation claim, plaintiff alleged Banc and
defendants Benett, Schnel, Sznewajs, and Lashley (the defamation
defendants) made defamatory statements about plaintiff “from
2019 through the present.” These included statements accusing
plaintiff of misconduct during his time as Banc’s CEO and
accusing his companies of having ties to a convicted securities
fraudster, as well as statements that plaintiff was forced out for
misconduct. The complaint also alleged that in 2019, the
defamation defendants told the Office of the Comptroller of the
Currency (OCC), Ernst & Young (Banc’s auditors), and incoming
Banc CEO Jared Wolff that plaintiff was forced out due to
misconduct.
As discussed above, the complaint alleged that in 2019, the
defamation defendants instructed bank employee Christopher
Garcia to tell six nonprofit community organizations that plaintiff
“engaged in illegal conduct while CEO at Banc and that he
engaged in fraudulent business dealings.”
Last, the complaint alleged that two letters authorized by
the defamation defendants in January 2020 were defamatory. One
letter was sent by a lawyer to plaintiff, his wife, his father and
Commerce Home Mortgage (a company related to plaintiff), saying
plaintiff was forced to resign as a result of his wrongdoing, issued
an inaccurate press release, interfered with the special committee’s
34
investigation, and so on. A second letter from Banc was sent to all
of Banc’s Class B common stock holders and Commerce Home
Mortgage making similar statements.
b. Contentions and conclusions
We have already concluded Mr. Benett’s statements to other
entities in the financial services business, and Mr. Garcia’s
statements to the various nonprofit companies were protected
activity. As we explained, these statements were protected under
section 425.16, subdivision (e)(4), as communications related to an
issue of public interest: all were part of the very public
controversy over the circumstances of plaintiff’s departure from
the bank. (See discussion at pp. 24–29, ante.)
The same conclusion applies to defendants’ statements to the
OCC and Ernst & Young, and the January 2020 letters. These
communications, like the others we have already discussed, and for
the reasons we have already discussed, were communications
related to an issue of public interest.
Plaintiff once again contends that statements to the OCC
and to Ernst & Young were “private statements,” not part of the
public conversation, and therefore do not meet FilmOn’s
requirements. Our previous analysis applies here in full. Given
the audience (the OCC regulates national banks, and Ernst &
Young are Banc’s auditors) and the nature of defendants’
statements (the circumstances of plaintiff’s departure from Banc),
there is clearly a sufficient relationship between the speech and
the issue of public interest.
The same principle applies to the January 2020 letters,
which were precipitated by plaintiff’s demands on Banc. The first
letter recited in detail plaintiff’s claims of present and past
wrongdoing at Banc, including matters surrounding his
35
resignation, and concluded with a warning of “further litigation” if
plaintiff’s demands were not met.
Plaintiff argues the January 2020 letters were sent three
years after the events relevant to the defamatory statements took
place, and there was no longer an ongoing dispute. The relevant
question is not confined to an ongoing “dispute”—FilmOn refers to
“whether the activity ‘occur[red] in the context of an ongoing
controversy, dispute or discussion’ ” (FilmOn, supra, 7 Cal.5th at
p. 145, italics added). And, anyway, the dispute was not over—the
parties agreed to settle the class action, subject to the occurrence
or waiver of seven events, including court approval, which did not
occur until March 2020, well after the January 2020 letters.3 The
letters are well within the FilmOn analysis.
6. The Defamation Claims: Probability of Prevailing
Plaintiff cannot prevail on the merits of any of his
defamation claims. Some of the statements are arguably
privileged, or were barred by the statute of limitations, or were not
shown by admissible evidence. But in every case, plaintiff has not
shown the statements were made with malice.
Plaintiff does not challenge the conclusion that he is a public
figure. (See Reader’s Digest Assn., Inc. v. Superior Court (1984)
37 Cal.3d 244, 253–254 [describing “the ‘limited purpose’ or ‘vortex’
public figure, an individual who ‘voluntarily injects himself or is
3 Plaintiff requested and we grant judicial notice of the
stipulation of settlement filed October 30, 2019, entered into
between Banc and the class action plaintiffs in the securities fraud
litigation. As observed in the text, the timing of the stipulation
does not establish the dispute was over when the stipulation was
filed.
36
drawn into a particular public controversy and thereby becomes a
public figure for a limited range of issues’ ”; “[u]nlike the ‘all
purpose’ public figure, the ‘limited purpose’ public figure loses
certain protection for his reputation only to the extent that the
allegedly defamatory communication relates to his role in a public
controversy”].) The consequence is that plaintiff must show
malice. (Id. at p. 256 [“If the person defamed is a public figure, he
cannot recover unless he proves, by clear and convincing evidence
[citation], that the libelous statement was made with ‘ “actual
malice”—that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.’ ”].)
“There is a ‘significant difference between proof of actual
malice and mere proof of falsity.’ [Citation.] ‘The burden of
proving “actual malice” requires the plaintiff to demonstrate with
clear and convincing evidence that the defendant realized that his
statement was false or that he subjectively entertained serious
doubt as to the truth of his statement.’ ” (Reed v. Gallagher (2016)
248 Cal.App.4th 841, 862 (Reed); see ibid. [“We could, in an
appropriate case, infer actual malice from a statement that was so
obviously false that any reasonable person would have known that
the statement was untrue.”].)
Plaintiff insists he established actual malice because the
Banc defendants knew their statements were false, citing the
defendants’ declarations filed in support of the anti-SLAPP
motions. These declarations describe, for example, the October 18,
2016, press release about the blog post; the inaccuracies in it; and
the director defendants’ loss of confidence in plaintiff, leading them
to advise plaintiff they would vote to terminate him for cause
unless agreement could be reached on the terms of his resignation.
37
The Banc defendants’ declarations do indeed show personal
knowledge of the circumstances surrounding plaintiff’s departure
and the press release. What they do not show is that, when
defendants allegedly made the statements plaintiff claims are
defamatory, defendants “ ‘realized that [their] statements [were]
false or that [they] subjectively entertained serious doubt as to the
truth of [their] statement[s].’ ” (Reed, supra, 248 Cal.App.4th at
p. 862, italics omitted.)
Plaintiff contends the Banc defendants’ effort to cover up
their own misconduct, personally financially benefit, and blame
Banc’s underperformance on Sugarman, and their anger, hostility,
and ill-will toward Sugarman, including their desire to “crush”
Sugarman, are evidence of malice. Plaintiff then provides seven
lines of record citations, without identifying or describing any of
them, and without distinguishing between testimony that was
excluded and testimony that was admitted. Much of it was
excluded. The testimony about making sure plaintiff was
“crushed” at most demonstrates ill-will toward plaintiff—and
“ ‘evidence of ill will, personal spite or bad motive’ ” alone is
insufficient to permit an inference of actual malice.
(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007)
151 Cal.App.4th 688, 709.)
7. The UCL Claims: Probability of Prevailing
Plaintiff’s UCL claims arise from the same protected activity
we have discussed in connection with his tortious interference and
defamation claims.
Plaintiff contends he established a reasonable probability of
prevailing on his UCL claim “because he is entitled to injunctive
relief and restitutionary damages,” and “the claims that predicate
[plaintiff’s] UCL claims are sufficiently established.” As shown in
38
our previous discussion of the tortious interference and defamation
claims, the “predicate” claims have not been established. Plaintiff
offers no other argument on this subject in his combined opening
brief—either in his response to Banc defendants’ appeal, or in his
opening brief on his own appeal. Consequently, we need not
consider the arguments he makes in his reply brief—to the effect
that a practice may be unfair even if it is not unlawful, and that
claims based on “unfair” practices are not derivative.
In any event, plaintiff’s UCL claims are not viable because
plaintiff cannot obtain either of the only two remedies permitted
under the UCL: restitution and injunctive relief.
The principles on restitution are explained in Korea Supply,
supra, 29 Cal.4th 1134. “[A]n order for restitution is one
‘compelling a UCL defendant to return money obtained through an
unfair business practice to those persons in interest from whom
the property was taken, that is, to persons who had an ownership
interest in the property or those claiming through that person.’
[Citation.] The object of restitution is to restore the status quo by
returning to the plaintiff funds in which he or she has an
ownership interest.” (Id. at p. 1149.) The concept of restitution
under the UCL “ ‘is not limited only to the return of money or
property that was once in the possession of that person,’ ” but
instead “is broad enough to allow a plaintiff to recover money or
property in which he or she has a vested interest.” (Korea Supply,
at p. 1149; id. at pp. 1150–1151 [“a claim for damages . . . is not
permitted under the UCL”; “ ‘Compensation for a lost business
opportunity is a measure of damages and not restitution to the
alleged victims.’ ”].)
Plaintiff contends he is entitled to “restitutionary damages”
because he had a “vested interest” in certain warrant shares. This
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refers to allegations in plaintiff’s first cause of action against Banc
for breach of contract, not to his allegation of unfair business
practices. In his cause of action for breach of contract, plaintiff
alleged Banc did not allow plaintiff to convert his warrant shares
(Class B common stock) into Class A voting stock, breaching two
agreements between plaintiff and Banc, and resulting in damages
of not less than $17 million. Plaintiff’s complaint did not allege
that this breach of contract was an unfair business practice under
the UCL.
The complaint alleged that Banc defendants’ unfair business
practices “were made in order to keep [plaintiff] from competing
with the Defendants in the banking business and within private
equity and financial services.” Plaintiff does not explain how
Banc’s alleged breach of contract concerning the warrant shares
has anything to do with preventing him from competing in the
banking business. Plaintiff has neither alleged nor shown
entitlement to restitution under the UCL based on the warrant
shares.
Plaintiff contends he is entitled to an injunction because
“nothing suggests that [defendants] have ceased (or will cease)
their disparagement campaign.” He says the disparagement
continued even after he filed the original complaint, citing the
January 2020 letters. Those letters were a response to plaintiff’s
own demands and warnings of litigation, and are arguably covered
by the litigation privilege. In any event, plaintiff has not
established a defamation claim and, as Hawran tells us, a UCL
claim “based on the same assertedly false and defamatory . . .
statements [as a defamation claim] stands or falls with that
underlying claim.” (Hawran, supra, 209 Cal.App.4th at p. 277.)
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Moreover, the UCL “has not altered the nature of injunctive
relief, which requires a threat that the misconduct to be enjoined is
likely to be repeated in the future.” (Madrid v. Perot Systems
Corp. (2005) 130 Cal.App.4th 440, 465; id. at p. 463 [“Injunctive
relief is appropriate only when there is a threat of continuing
misconduct.”].) Injunctions issue to prevent wrongful acts that are
causing irreparable harm; they do not issue based on speculation
that defendants might again make defamatory statements. “[I]n
the absence of a threat that an unlawful act will occur in the
future” (id. at p. 464), injunctive relief is not authorized under the
UCL.
[End of nonpublished portion]
DISPOSITION
The trial court’s orders are affirmed to the extent the court
granted the Banc defendants’ anti-SLAPP motions to strike
plaintiff’s second, third, fifth, sixth, seventh, eighth and ninth
causes of action. The orders are reversed to the extent the trial
court denied the Banc defendants’ motions, and the court is
directed to grant the motions in their entirety. All defendants
shall recover costs on appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. HARUTUNIAN, J.†
† Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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