After State Farm Mutual Automobile Insurance Company filed an unfair business practices action against Fue Lee and others, Lee and the others filed a cross-complaint against State Farm and its law firm, alleging abuse of process and unfair business practices based on questions asked by State Farm's attorney during depositions in a prior action for recovery of medical expenses. The deposition questions revealed the cross-complainants' possible illegal ownership of chiropractic practices by a partnership between a chiropractor and a layperson. State Farm brought an anti-SLAPP (strategic lawsuit against public participation) motion against the cross-complaint, and Lee sought disqualification of State Farm's law firm and a preliminary injunction against use of the information revealed in the depositions. The trial court granted State Farm's anti-SLAPP motion and denied Lee's motion to disqualify and for injunctive relief.
On appeal, Lee contends the trial court erred in granting the anti-SLAPP motion. The contention is without merit because Lee failed to establish a probability of prevailing on the merits.
Lee also contends the trial court erred in denying injunctive relief. He withdrew this contention at oral argument. In any event, Lee established no legal grounds for injunctive relief.
We therefore affirm.
Two individuals filed uninsured motorist claims with State Farm for injuries resulting from an alleged hit-and-run automobile accident. The individuals had
State Farm filed a complaint against Lee, Thao, Lysuwan, Community Family Chiropractic, and Good Chiropractic alleging unfair business practices pursuant to Business and Professions Code section 17200. The crux of the complaint was that ownership of each chiropractic practice by a licensed chiropractor in partnership with a nonlicensed person was unlawful. State Farm sought injunctive relief and restitution of money State Farm had paid to the chiropractic practices.
Lee, Thao, Lysuwan, Community Family Chiropractic, and Good Chiropractic (collectively, Lee) filed a cross-complaint against State Farm and its counsel, Toschi, Sidran, Collins and Doyle (collectively, State Farm). The crosscomplaint included two causes of action: abuse of process and unfair business practices. Both causes of action were based on the taking of the depositions of Lee, Thao, Lysuwan, and the treating chiropractors. According to the complaint, State Farm "took these depositions with an ulterior motive of collecting up evidence in a completely separate and different action, [State Farm's] present lawsuit against [Lee] for violation of Business and Professions Code [section] 17200, based on allegations that [Lee] had co-owners that were not licensed chiropractors. The questions during the depositions focused on the arrangement between [Lee] and his . . . business partners. Not until the very end of the depositions were there any questions asked about the patient in question."
Lee filed a motion to disqualify the Toschi law firm from representing State Farm in the action and, in the alternative, sought an injunction prohibiting the Toschi law firm from representing State Farm or using in this action the evidence obtained at the prior depositions. Lee asserted that, because the
State Farm moved to strike Lee's cross-complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. It asserted that both prongs of the anti-SLAPP analysis were satisfied, namely (1) the cross-complaint arises from an act in furtherance of State Farm's right to petition and (2) Lee could not establish a probability that he would prevail on the merits. Lee filed an opposition, attempting to establish a probability of prevailing on the merits of the cross-complaint.
The trial court, Judge Michael Kenny presiding, granted State Farm's motion to strike.
Lee appeals the denial of injunctive relief and the granting of the anti-SLAPP motion, both of which orders are appealable. (Code Civ. Proc, § 904.1, subd. (a)(6) [injunctive relief] & (13) [anti-SLAPP motion].)
Lee contends that the anti-SLAPP motion should have been denied because he established a probability of prevailing on the merits. He bases this contention on evidence that the Toschi law firm had, in Lee's words, "an ulterior motive in taking depositions in a series of uninsured motorist claims, but for the real purpose of investigating an insurance fraud claim." Other than simply declaring it, however, Lee makes no attempt to establish by reasoning and citation to authority that taking a deposition in one case with an ulterior motive of obtaining information for another case is wrongful. This strategy is a loser on appeal.
Section 425.16, subdivision (b)(1) provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." "As used in [section 425.16], `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' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law . . . ." (§ 425.16, subd. (e).)
We review an order granting an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 [46 Cal.Rptr.3d 606, 139 P.3d 2].)
Lee makes no contention of error with respect to the "arising from" prong of the anti-SLAPP analysis. Accordingly, we deem Lee's failure to make any argument in that regard a concession of the correctness of the trial court's finding. Lee's argument is directed to the probability-of-prevailing prong. But his argument that he established a probability of prevailing is without merit.
The case that Lee cites for the elements of an abuse of process cause of action is instructive here. (Coleman v. Gulf Ins. Group, supra, 41 Cal.3d 782.) In that case, the defendant filed a meritless appeal solely for the benefit of delay or to coerce the plaintiff into settling—thus an ulterior motive. However, there was no wrongful act. The defendant was entitled to appeal from the judgment and it was therefore an act authorized by law. (Id. at pp. 792-793.)
Here, State Farm engaged in discovery as authorized by law. "Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. . . ." (§ 2017.010.) State Farm's questioning, in the depositions for the uninsured motorist arbitration, about the possible illegal ownership of the chiropractic practices that were billing State Farm falls
In any event, since Lee fails to cite authority or tender a reasoned legal argument that the taking of the depositions was wrongful, apart from the ulterior motive alleged, he has abandoned the issue on appeal. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [46 Cal.Rptr.2d 119].) Lee has thus failed to bear his burden on appeal of showing that the trial court erred by concluding that he did not have a probability of prevailing on the merits of the abuse of process and dependent unfair business practices causes of action.
Lee moved in the trial court "for a preliminary injunction enjoining [the Toschi law firm] from representing State Farm and/or from using the ill gotten deposition transcripts in pretrial or trial proceedings in this matter. . . ." The trial court denied the motion, stating that "[t]he taking of the prior depositions is not a basis for disqualification or injunctive relief."
Lee contends in his opening brief on appeal that the trial court committed prejudicial error or an abuse of discretion in denying his motion for a preliminary injunction. At oral argument, Lee's counsel stated that this issue is moot and withdrew it.
In any event, Lee's reasoning in this regard is sparse to nonexistent. Essentially, he claims that the denial of injunctive relief was error "[f]or the same reasons stated . . . with regards to the anti-SLAPP motion to strike . . . ." Because we have found that Lee's contentions with respect to the anti-SLAPP motion are without merit, we likewise reject his contention that injunctive relief was improperly denied.
The orders granting the motion to strike and denying the motion for a preliminary injunction are affirmed. The cross-defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
Blease, Acting P. J., and Hull, J., concurred.