Computerxpress, Inc. v. Jackson

Citation113 Cal.Rptr.2d 625,93 Cal.App.4th 993
Decision Date15 November 2001
Docket NumberNo. E027841.,E027841.
CourtCalifornia Court of Appeals
PartiesCOMPUTERXPRESS, INC., Plaintiff and Respondent, v. Lee JACKSON et al., Defendants and Appellants.

Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew, Santa Monica, for Defendants and Appellants.

Best Best & Krieger, Douglas S. Phillips, G. Henry Welles and James C. Turney, Indian Wells, for Plaintiff and Respondent.

OPINION

RICHLI, J.

Defendants appeal the denial of their motion, pursuant to Code of Civil Procedure section 425.16 (section 425.16), to strike the complaint of ComputerXpress, Inc. (ComputerXpress) as a "SLAPP" suit (strategic lawsuit against public participation). The trial court determined that none of ComputerXpress's claims was subject to section 425.16. Therefore, it did not require ComputerXpress to establish a probability of prevailing on its claims.

We agree that some of ComputerXpress's claims were not subject to section 425.16 and affirm the denial of the motion to strike those claims. However, we conclude that some of the claims were subject to section 425.16. We further conclude ComputerXpress did not show a probability of prevailing on those claims and reverse the denial of the motion to strike those claims. Finally, we conclude defendants are entitled to recover attorney fees and costs incurred in moving to strike the claims subject to section 425.16.

I PROCEDURAL BACKGROUND

The complaint, filed in March 2000, alleged: ComputerXpress is a public company selling computer related products to the public. In February 1999, when ComputerXpress was considering a merger with businesses owned by defendants, defendants falsely represented that their businesses were profitable, causing ComputerXpress to incur expenses and waste time pursuing the merger. Later, in May 1999, defendants entered into a conspiracy to damage ComputerXpress's reputation and cause it economic harm. To that end, beginning in about August 1999, defendants made numerous false and disparaging statements about ComputerXpress on the Internet and elsewhere to existing and potential customers and investors, causing monetary damage to ComputerXpress.

Based on these alleged facts, the complaint asserted nine causes of action: (1) fraud; (2) negligent misrepresentation; (3) negligence; (4) trade libel; (5) interference with contractual relations; (6) interference with prospective economic advantage; (7) abuse of process; (8) conspiracy; and (9) injunctive relief.

On defendants' motion to strike the complaint, the court initially ruled the first three causes of action were not within the scope of section 425.16, but the remaining causes of action were. Later, however, the court changed its mind and ruled that defendants had not shown the remaining causes of action were within the scope of section 425.16. Therefore, it denied defendants' motion in its entirety, without ruling on whether ComputerXpress had shown a probability of prevailing.

II DISCUSSION
A. Burden of Proof and Standard of Review

Section 425.16 applies to any cause of action arising from an "`act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" (§ 425.16, subds.(b)d), (e).) Such a claim "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." (Id., subd. (b)(1).) In order to encourage participation in matters of public significance, section 425.16 "shall be construed broadly." (Id., subd. (a).)

The defendant has the initial burden of making a prima facie showing that the plaintiffs claims are subject to section 425.16. (Brawn v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042, 61 Cal.Rptr.2d 58; Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 742, 36 Cal.Rptr.2d 687.) If the defendant makes that showing, the burden shifts to the plaintiff to establish a probability of prevailing, by making a prima facie showing of facts which would, if proved, support a judgment in the plaintiffs favor. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907, 84 Cal.Rptr.2d 303.) Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, 77 Cal.Rptr.2d 1, disapproved on another point in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10, 81 Cal.Rptr.2d 471, 969 P.2d 564; Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064, 82 Cal.Rptr.2d 10.)

B. Claims Subject to Section 25.16

As used in section 425.16, an act in furtherance of a person's right of petition or free speech 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; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or 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).) We must first determine whether defendants met their burden of showing that ComputerXpress's claims were subject to section 425.16.

1. First, second, third, and fifth causes of action

ComputerXpress's first three causes of action, for fraud, negligent misrepresentation, and negligence, were based on defendants' alleged false representations in February 1999 that they owned solvent, profitable businesses which were appropriate for merger with ComputerXpress. ComputerXpress's fifth cause of action, for interference with contractual relations, alleged that in February 2000 ComputerXpress entered into a contract to sell computers to Cal Tech Solutions and that defendants then contacted Cal Tech and disparaged ComputerXpress and its officers and directors, causing Cal Tech to cancel the contract.

There was no indication, either in the complaint or in the evidence presented on the section 425.16 motion, that the conduct alleged in these causes of action occurred in connection with an official proceeding, concerned a public issue or issue of public interest, or took place in a public forum. However, defendants argue these causes of action were still subject to section 425.16, because (1) the complaint alleged a conspiracy covering all causes of action, some of which did involve public statements, and (2) in any event, section 425.16 applies to any suit filed after the defendant's exercise of speech or petition rights, not only to claims which are directly based on such conduct.

a. Conspiracy allegations

Defendants note the complaint included causes of action, other than the first three and the fifth, which alleged conduct that did occur in an official or public context, such as defendants' filing of a complaint against ComputerXpress with the Securities and Exchange Commission (SEC) and posting messages on the Internet disparaging ComputerXpress. They argue that, in deciding whether section 425.16 applies, all of the acts alleged in all of ComputerXpress's causes of action must be considered together. They contend this is so because the eighth and ninth causes of action alleged that all of the alleged acts were performed in furtherance of a single conspiracy to interfere with ComputerXpress's business.

The eighth cause of action did allege a conspiracy to "interfere with Plaintiffs business and cause it substantial harm and damage." Nowhere, however, did it allege the conspiracy included the misrepresentations alleged in the first three causes of action. The eighth cause of action did not incorporate the allegations of the first three causes of action. Moreover, the eighth cause of action alleged the conspiracy occurred on or about May 2, 1999, months after the February 1999 misrepresentations alleged in the first three causes of action.

The ninth cause of action alleged a conspiracy to "damage the business reputation of Plaintiff and to cause Plaintiff as much economic harm as possible...." However, it alleged the conspiracy was to be implemented "through the dissemination of false and misleading information on the [I]nternet as set forth in the above counts incorporated herein." The allegations of the first three causes of action were not incorporated into the ninth cause of action, nor was there any allegation that the acts undertaken pursuant to the conspiracy included the misrepresentations during the merger negotiations. And again, the conspiracy was alleged to have begun on or about May 2, 1999, well after the merger negotiations.

The fifth cause of action differs from the first three in that the allegations contained in that cause of action were incorporated into the ninth cause of action, and the conduct alleged in the fifth cause of action occurred after the inception of the conspiracy alleged in the eighth and ninth causes of action. However, we are not persuaded that this degree of arguable connection between the fifth cause of action and the rest of the complaint means the fifth cause of action is a claim "arising from" the public speech and petition activity alleged elsewhere in the complaint.

The phrase "arising from" in section 425.16, subdivision (b)(1) has been interpreted to mean that "the act underlying the plaintiffs cause" or "the act which forms the basis for the plaintiffs cause of action" must have been an act in furtherance of the right of...

To continue reading

Request your trial
644 cases
  • 569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc., D068538
    • United States
    • California Court of Appeals
    • December 5, 2016
    ...... to produce records sufficient to provide ‘ "a proper basis for determining how much time was spent on particular claims." ’ " ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020, 113 Cal.Rptr.2d 625.) Importantly, when considering a fee award, the trial court is not required ......
  • ZL Techs., Inc. v. Doe
    • United States
    • California Court of Appeals
    • July 19, 2017
    ......[Citations.]" ( Id. at p. 427, 160 Cal.Rptr.3d 423.) Use of "hyperbolic, informal" ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1013, 113 Cal.Rptr.2d 625 ( ComputerXpress )), " 'crude, [or] ungrammatical' language, satirical ......
  • Laker v. Bd. of Trs. of the Cal. State Univ.
    • United States
    • California Court of Appeals
    • February 28, 2019
    ...to fees and costs incurred in moving to strike the claim on which it did not prevail. ( ComputerXpress , Inc . v. Jackson (2001) 93 Cal.App.4th 993, 1020, 113 Cal.Rptr.2d 625 ( ComputerXpress ).) On remand, the trial court should determine the appropriate amount of attorney’s fees and costs......
  • Meridian Fin. Servs., Inc. v. Phan
    • United States
    • California Court of Appeals
    • August 10, 2021
    ...arguments that are not developed or supported by adequate citations to the record as waived. ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011, 113 Cal.Rptr.2d 625.) " ‘ " ‘In other words, review is limited to issues which have been adequately raised and briefed.’ " ’ " ( Di......
  • Request a trial to view additional results
1 firm's commentaries
5 books & journal articles
  • Defamation and privacy
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • March 31, 2022
    ...property, which the publisher should recognize is likely to cause pecuniary loss to the owner.” ComputerXpress, Inc. v. Jackson 93 Cal. App.4th 993, 1010 (2001). §3:23 Publication Publication, which may be written or oral, is defined as a communication to some third person who understands b......
  • Table of cases
    • United States
    • ABA Antitrust Library Advertising Claim Substantiation Handbook
    • January 1, 2017
    ...Press, 2002 WL 1033560 (S.D.N.Y. 2002) ........................................... 32, 106 ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625 (Ct. App. 2001) ................................................ 53 226 Advertising Claim Substantiation Handbook Conte Bros. Auto., Inc. v. Quak......
  • Types of Claims
    • United States
    • ABA Antitrust Library Advertising Claim Substantiation Handbook
    • January 1, 2017
    ...35. Id. at 2. 36. Id. at 7 (footnotes omitted) (internal quotation marks omitted). 37. See, e.g. , ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625, 641-42 (Ct. App. 2001). 38. Id. at 641 (internal quotation marks omitted). 54 Advertising Claim Substantiation Handbook actionable, the ......
  • A Cure for a "public Concern": Washington's New Anti-slapp Law
    • United States
    • University of Washington School of Law University of Washington Law Review No. 86-3, March 2017
    • Invalid date
    ...See Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205, 212 (Cal. Ct. App. 2000). 126. Computer Xpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625, 638 (Cal. Ct. App. 127. See Kronemyer v. Internet Movie Database, Inc., 59 Cal. Rptr. 3d 48, 55 (Cal. Ct. App. 2007). This includes forms ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT