People ex rel. Lockyer v. Brar 115 Cal.App.4th 1315, 9 Cal.Rptr.3d 844 Cal.App. 4 Dist.,2004. February 24, 2004 (Approx.

4 pages) Top of Form (Cite as: 115 Cal.App.4th 1315, 9 Cal.Rptr.3d 844) 115 Cal.App.4th 1315, 9 Cal .Rptr.3d 844, 04 Cal. Daily Op. Serv. 1624, 2004 Daily Journal D.A.R. 2424 View Cal./Cal.App. version Briefs and Other Related Documents Court of Appeal, Fourth District, Division 3, California. The PEOPLE ex rel. Bill LOCKYER as Attorney General., Plaintiff and Respondent, v. Harpreet BRAR, Defendant and Appellant. No. G033116. Feb. 24, 2004. Background: Attorney General filed complaint against attorney to obtain order to make him stop filing lawsuits under California's unfair competition law. The Su perior Court, Orange County, No. 03CC08825, Kim Dunning, J., denied attorney's m otion to dismiss complaint as SLAPP suit (strategic lawsuit against public parti cipation). Attorney appealed. Holdings: The Court of Appeal, Sills, P.J., held that: (1) attorney's appeal was frivolous, and (2) dismissal of appeal was proper procedure. Appeal dismissed. West Headnotes [1] KeyCite Notes 302 Pleading 302XVI Motions 302k351 Striking Out Pleading or Defense 302k358 k. Frivolous Pleading. Most Cited Cases 379 Torts KeyCite Notes 379V Other Miscellaneous Torts 379k437 k. Resort to or Conduct of Legal Remedies. Most Cited Cases (Formerly 379k14) For purpose of anti-SLAPP statute (strategic lawsuit against public participatio n), the exercise of petition rights can include the filing of lawsuits. West's A nn.Cal.C.C.P. 425.16. [2] KeyCite Notes 30 Appeal and Error 30XIII Dismissal, Withdrawal, or Abandonment 30k779 Grounds for Dismissal 30k786 k. Proceedings Frivolous or for Delay. Most Cited Cases Attorney's appeal from denial of his SLAPP (strategic lawsuit against public par ticipation) motion, made in response to Attorney General's complaint for order t o stop attorney from filing lawsuits under unfair competition law, was frivolous ; SLAPP statute exempted actions by Attorney General, attorney's ad hominem argu ment alleging Attorney General's political motives was irrelevant, and there was ample circumstantial evidence of attorney's motivation to delay proceedings. We

st's Ann.Cal.C.C.P. 425.16. See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 640, 831 et seq.; Eisenberg e t al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2003) 11:9 7 (CACIVAPP Ch. 11-E); Cal. Jur. 3d, Appellate Review, 491. [3] KeyCite Notes 30 Appeal and Error 30XIII Dismissal, Withdrawal, or Abandonment 30k779 Grounds for Dismissal 30k786 k. Proceedings Frivolous or for Delay. Most Cited Cases California courts have the inherent power to dismiss frivolous appeals. [4] KeyCite Notes 30 Appeal and Error 30XIII Dismissal, Withdrawal, or Abandonment 30k779 Grounds for Dismissal 30k786 k. Proceedings Frivolous or for Delay. Most Cited Cases Court's power to dismiss frivolous appeals should not be used except in the abso lutely clearest cases. [5] KeyCite Notes 30 Appeal and Error 30XIII Dismissal, Withdrawal, or Abandonment 30k779 Grounds for Dismissal 30k786 k. Proceedings Frivolous or for Delay. Most Cited Cases Dismissal, rather than affirmance, was proper procedure for attorney's frivolous appeal from trial court's denial of his SLAPP (strategic lawsuit against public participation) motion, where evidence showed that appeal was motivated by attem pt to delay, especially in light of automatic stay of proceedings during appeal from a denial of a SLAPP motion. West's Ann.Cal.C.C.P. 425.16(j). **845 (Cite as: 115 Cal.App.4th 1315, 9 Cal.Rptr.3d 844, **845) *1316 (Cite as: 115 Cal.App.4th 1315, *1316, 9 Cal.Rptr.3d 844, **845) Harpreet Brar , in pro. per., for Defendant and Appellant. Bill Lockyer, Attorney General, Herschel T. Elkins, Senior Assistant Attorney Ge neral, Albert Norman Shelden and Howard Wayne, Deputies Attorney General, for Pl aintiff and Respondent. OPINION SILLS, P.J. In July 2003 the Attorney General filed a complaint against attorney Harpreet Br ar to obtain an order to make him stop filing lawsuits under California's unfair competition law (Bus. & Prof.Code, 17200). Allegedly, Brar has engaged in the s ort of abuse of California's unfair *1317 (Cite as: 115 Cal.App.4th 1315, *1317, 9 Cal.Rptr.3d 844, **845) competition l aw which made the Trevor Law Group a household name in California in 2002 and 20 03. The abuse is a kind of legal shakedown scheme: Attorneys form a front watchdo g or consumer organization. They scour public records on the Internet for what are often ridiculously minor violations of some regulation or law by a small busines s, and sue that business in the name of the front organization. Since even frivo lous lawsuits can have economic nuisance value, the attorneys then contact the b

usiness (often owned by immigrants for whom English is a second language), and p oint out that a quick settlement (usually around a few thousand dollars) would b e in the business's long-term interest. For the Trevor Law Group, the usual targ ets were auto repair shops. Brar's main targets are nail salons. California also has another law which is designed to put a quick end to lawsuits when they are based on the exercise of free speech and petition rights, general ly known as the anti-SLAPP suit statute. (Code Civ. Proc., 425.16.) SLAPP stands for strategic lawsuit against public participation. The archetype is when a devel oper sues neighborhood activists for having spoken out against the developer's p roject in some public forum. The developer will often sue the activists for the torts of defamation or intentional interference with economic advantage. The ant i-**846 (Cite as: 115 Cal.App.4th 1315, *1317, 9 Cal.Rptr.3d 844, **846) SLAPP law all ows the activists to obtain quick relief by filing an anti-SLAPP suit motion under the statute. If it is determined that the suit really is one based on the exerc ise of free speech or petition rights, then the plaintiff, say our hypothetical developer, bears the burden of coming forward with some evidence showing it has a viable case. If not, the suit is quickly kicked out of court. [1] Ironically, Brar, the sue-er, decided to use the anti-SLAPP suit law to his own advantage to try to dismiss the Attorney's General lawsuit against him. It i s established that the exercise of petition rights can include the filing of law suits. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77-78, 124 Cal.Rptr. 2d 519, 52 P.3d 695.) So he filed an anti-SLAPP suit motion. It was, of course, denied. As we discuss below, a provision of the anti-SLAPP statute specifically exempts actions by the Attorney General from anti-SLAPP motions. But the anti-SLAPP suit law has an interesting feature-the right to appeal even the denial of the motion. (Code Civ. Proc., 425.16, subd. (j).) Typically, if yo u lose a motion in the trial court, you have to wait until the suit is over and there is a final judgment before you have the right to appeal. The right to appeal has a certain logic to it. After all, what use is a mechanis m to allow you to get out of a case early if it is undercut by an erroneous deci sion of the trial judge? The point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constituti onal rights. The right to appeal a denial of an *1318 (Cite as: 115 Cal.App.4th 1315, *1318, 9 Cal.Rptr.3d 844, **846) anti-SLAPP mo tion is important because it protects the interest validated by the anti-SLAPP s tatute. But the right to appeal has its own consequences. As we write, at least one appe llate court has drawn the correlative conclusion that an appeal from the denial of anti-SLAPP motion also stays proceedings in the trial court. (See Mattel, Inc . v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1190, 121 Cal .Rptr.2d 794.) You don't just get the right to go to the appellate court, you al so get a free time-out in the trial court. FN1 FN1. There is, as we write, one nonfinal decision which disagrees with Mattel on the point, Varian Medical Systems, Inc. v. Delfino (2003) 113 Cal.App.4th 273, 309-311 footnote 16, 6 Cal.Rptr.3d 325, petition for review filed December 23, 2 003 (S121400).* Depending on what the Supreme Court does, that case may, or may not, disappear from the Official Reports any day now. In any event, however, Mat tel will remain at least competing authority for the short term. * Reporter's Note: Review granted March 4, 2004. [2] [3] [4] That brings us to the reason for this opinion, which is the Attorney General's motion to dismiss the appeal, as frivolous, now pending before us. Ca lifornia courts have the inherent power to dismiss frivolous appeals. (See Fergu son v. Keays (1971) 4 Cal.3d 649, 658, 94 Cal.Rptr. 398, 484 P.2d 70 [we emphasiz

e that the appellate courts possess the further inherent power to summarily dism iss any action or appeal which has as its object to delay, vex, or harass the op posing party or the court, or is based upon wholly sham or frivolous grounds]; Zi mmerman v. Drexel Burnham (1988) 205 Cal.App.3d 153, 161, 252 Cal.Rptr. 115 [Appe llate courts have an inherent power to summarily dismiss any appeal which is des igned for delay or which is based on sham or frivolous grounds.].) Of course, it is a power that should not be used except in the absolutely clearest cases. ( In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179, quoting **847 (Cite as: 115 Cal.App.4th 1315, *1318, 9 Cal.Rptr.3d 844, **847) People v. Sum ner (1968) 262 Cal.App.2d 409, 415, 69 Cal.Rptr. 15.) The motion must be granted. This is about as patently frivolous an appeal taken for purposes of delay as is imaginable. The anti-SLAPP statute specifically exempts actions brought by public prosecutor s, including the Attorney General: This section shall not apply to any enforcemen t action brought in the name of the People of the State of California by the Att orney General, district attorney, or city attorney, acting as a public prosecuto r. (Code Civ.Proc., 425.16, subd. (d).) Against this plain statutory language, Brar posits only an ad hominem argument. (For a discussion of ad hominem arguments in legal and other rhetorical contexts , see Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417 , 1430, 115 Cal.Rptr.2d 439 [e.g., Jane, you ignorant etcetera....].) It goes like this: Brar is doing nothing more than the unfair competition law allows, but th e unfair competition law, as written, has *1319 (Cite as: 115 Cal.App.4th 1315, *1319, 9 Cal.Rptr.3d 844, **847) become an emb arrassment to what might be called in general terms the plaintiff's bar. (Who are often referred to as trial lawyers when discussed on newspaper op.-ed. pages; one can log onto to many Internet discussions of California's unfair competition la w and see that whether the law should be reformed is currently a hot topic indee d in the legal and business communities.) The Attorney General, according to Bra r, is merely trying to curry the favor of the plaintiff's bar by taking this act ion against him, so as to defuse public (and particularly business) pressure to reform the unfair competition law. Brar thus argues that he is being made scapeg oat for the Attorney General's ulterior political motives. It is, like all ad hominem arguments, quite irrelevant. Neither the statute nor anything in the Constitution contains an implied exception for times when the pu blic prosecutor acts with a political motive. Surely it is safe to say that publ ic prosecutors sometimes act with political motives, and if the Legislature had wanted to insert a political motive exception to the public prosecutor exemption i n the anti-SLAPP statute it most certainly could have done so. We may therefore readily conclude that Brar's one substantive argument is a loser, at a mere glanc e. (Cf. In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650, fn. 6, 183 Cal.Rp tr. 508, 646 P.2d 179.) One of the reasons that the power to dismiss an appeal must be used with extreme rarity is that determination of whether an appeal is frivolous entails at least a peek at the merits-if not, as is usually the case, a thorough review of the r ecord-and, having taken that look, the appellate court is in a position to affir m whatever was appealed rather than dismiss the appeal. As our Supreme Court sai d in People v. Wende (1979) 25 Cal.3d 436, 443, 158 Cal.Rptr. 839, 600 P.2d 1071 , [W]e deem it appropriate to affirm the judgment rather than to dismiss the appe al as frivolous. Once the record has been reviewed thoroughly, little appears to be gained by dismissing the appeal rather than deciding it on its merits. [5] In the case before us, though, much appears to be gained by dismissal rather than affirmance-specifically, prevention of the abuse of the anti-SLAPP statute

to buy time from the day of reckoning in the trial court. Here, Brar's appeal p ractically has the words brought for reasons of delay virtually tattooed on its fo rehead. Consider that under a rule of automatic stay, as envisioned by the Matte l case, the incentive to appeal even the denial of a patently frivolous anti-SLA PP motion is overwhelming. As we have noted, the defendant gets a very cheap hia tus in the proceedings, and that hiatus becomes doubly important in a situation where, as here, **848 (Cite as: 115 Cal.App.4th 1315, *1319, 9 Cal.Rptr.3d 844, **848) a public pros ecutor is seeking an injunction to prevent the defendant from continuing the ong oing abuse of the legal system. Review on the merits, after briefing (as distinc t from review, as here, of the papers on a motion to dismiss) only rewards a fri volous appeal. *1320 (Cite as: 115 Cal.App.4th 1315, *1320, 9 Cal.Rptr.3d 844, **848) As we said, i f this appeal is not frivolous at a glance, no appeal is. A statute directly on point, an ad hominem argument to try to avoid that statute's clear application, and ample circumstantial evidence of a motivation to delay proceedings in the tr ial court all demand immediate dismissal. One more point: This court has the power to shorten the finality of this decisio n to prevent frustration of the relief granted. (Cal. Rules of Court, rule 24(b)(3 ).) Accordingly, to prevent further delay occasioned by Brar's appeal, this deci sion shall be final five days after its filing date. Our opinion is also without prejudice to the Attorney General to seek sanctions in the trial court against Brar for taking a frivolous appeal. It is to there that the case should now retu rn. WE CONCUR: RYLAARSDAM and IKOLA, JJ. Cal.App. 4 Dist.,2004. People ex rel. Lockyer v. Brar 115 Cal.App.4th 1315, 9 Cal.Rptr.3d 844, 04 Cal. Daily Op. Serv. 1624, 2004 Dail y Journal D.A.R. 2424 Briefs and Other Related Documents (Back to top) G033116 (Docket) (Nov. 5, 2003) END OF DOCUMENT (C) 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Bottom of Form