Filed 6/30/15 Lira v. Nick Pacheco Law Group CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CARLOS LIRA,
Plaintiff and Respondent,

v.

NICK PACH ECO LAW GROUP, APC,
Defendant and Appellant. B257882
(Los Angeles County Super. Ct. No. BC474837)

ROCIO LIRA,
Plaintiff and Respondent,

v.
NICK PACHECO LAW GROUP, APC,
Defendant and Appellant. (Los Angeles County Super. Ct. No. BC475028)

APPEAL S from order s of the Superior Court of Los Angeles County. Robert L.
Hess , Judge. Affirmed

. Law Offices for Michael Poole and Michael Poole for Defendant and Appellant

. Fraigun Law Group and Marina Kats Fraigun for Plaintiff s and Respondent s

.

__________________2

Plaintiffs, husband and wife Carlos and Rocio Lira, separately sued their former employer, defendant Nick Pacheco Law Group, APC ( and other affiliated individuals and
entities who are not parties to thi s appeal) , alleging causes of action related to their employment and termination of employment

. Plaintiffs’ nearly identical pleadings alleged that defendant failed to pay all of their wages, unlawfully pressured them to make campaign contributions (which later became the subject of an investigation by the Los Angeles City Ethics Commission) , made racially charged statements to plaintiffs, and engaged in questionable legal practices in servicing its clients. Plaintiffs were terminated after they complaine d about this conduct, and defendant defamed them to their prospective employer.
Defendant filed special motion s to strike a majority of plaintiffs’ claims under Code of Civil Procedure section 425.16, 1 contending th at the statements to plaintiffs’

prosp ective employer were made in anticipation of litigation, and that the remainder of
the claims arose from defendant’s protected activity in representing its clients, and in connection with the Ethics Commission investigation. Defendant also adduced evidenc e that plaintiffs were terminated because they falsified Rocio’ s employment verification forms, and therefore the termination resulted from defendant’s effort to comply with
federal immigration law

. T he trial court denied defendant’ s motion s , and defend ant appealed. Finding no merit in any of defendant’s contentions, w e affirm

. FACTS
Plaintiffs alleged causes of action for: (1) breach of express contract; (2) breach of implied in fact contract; (3) fraud; (4) conspiracy; (5) intentional misrepresenta tion; (6) breach of the covenant of good faith and fair dealing; (7) national origin discrimination and harassment; (8) failure to prevent harassment and discrimination;

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.3

(9) intentional infliction of emotional distress; (10) wrongful termination in violati on of public policy (for plaintiffs’ complaints about racial discrimination) ; (11) retaliation ( for plaintiffs’ complaints about racial discrimination ) ; (12) failure to pay earned wages; (13) retaliation (in violation of Labor Code section 1102.5
, barring retaliation against employees for their refusal to participate in illegal activity ) ; (14) retaliation (in violation
of section 98.6
, barring retaliation against employees seeking unpaid wages ) ; (15) waiting time penalties; (16) defamation; (17) invasion of privacy; (18) negligent interference with prospective economic advantage; (19) intentional interference with prospective econom ic advantage; (20) violation of section 1050 (making it a misdemeanor to prevent a former employee from obtaining employment by making misrepresentations) ; and (21) violation of section 1102 (making it unlawful to coerce the political activities of employees)

. The following facts are taken from the pla intiffs’ operative complaints (Carlos’ s

sec ond amended complaint and Rocio’ s th ird amended complaint): Defendant law firm represented homeowners in foreclosure proceedings

. In March 2010, defendant offered plaintiffs employment with its law firm. Because plaintiffs were already employed
elsewhere , they required certain assurances before they would consider working for
defendant. Defendant agreed to pay plaintiffs a salary, bonuses, a portion of defendant’s profits, and agreed that plaintiffs’ employment would not be at

- will and could only be terminated for good cause. Plaintiffs began working for defendant in March 2010, providing customer service and office management services. Almost immediately,
d efendant failed to pay the agreed salary, bonuses, and profits, notwithstanding plaintiffs’ exemplary job performance.
Over the co urse of plaintiffs’ employment, defendant engaged in some disturbing practices

. Defendant formed partnerships with non lawyers in violation of the California
Rules of Professional Conduct. Also, on August 20, 2010, defendant ’s employee,
defendant Juan Jar amillo, demanded that plaintiffs contribute $500 to Rudy Martinez’ s City Council campaign, promising to reimburse the contributions. Plaintiffs were only partially reimbursed, were later pressed for additional contributions, and were threatened4

with termi nation if they did not contribute. Defendant was investigated by the Ethics Commission and the Los Angeles District Attorney in connection with campaign contributions made by its employees. Defendant’s nonlawyer sales staff improperly gave legal advice to clients and falsely promised that their homes could be saved from foreclosure

. D efendant ’s lawyers
often failed to appear at court hearings for their clients.
Defendant also failed to pay plaintiffs and other staff members overtime wages.
Additiona lly, d efendant ’ s employees made derogatory remarks about plaintiffs’
national origin , and threatened to report Rocio to immigration

. When plaintiffs complained about defendant’ s conduct, Carlos received a negative performance review, and both plaintiffs were ultimately terminated on December 8, 2010

. After plaintiffs were terminated, Nick Pacheco wrote to attorney Robert Kayvon, plaintiffs’ prospective employer, falsely accusing plaintiffs of hacking defendant’s computers, stealing defendant’s trade sec rets, slandering defendant
, and falsely claiming that plaintiffs had a history of “going after” past employers. Pacheco also told Kayvon
and others that R ocio was terminated for providing false work eligibility documents.
Defendant’s statements caused Ka yvon not to hire plaintiffs.
Defendant moved to strike the first, second, sixth through eleventh, thirteenth and fourteenth, and sixteenth through twenty

- first causes of action in the operative complaints. Defendant argued that the contract, retaliatio n, and Labor Code
section s 1101 and 1102 claims all arose from protected activity because they were connected to “an issue under consideration or review by official proceeding authorized by
law: [the] Los Angeles City Ethics Commission investigation ” beca use plaintiffs were purportedly terminated in connection with their complaints to the Ethics Commission.
Defendant also contend ed that plaintiffs were terminated for falsifying employment eligibility documents, and that “[ plaintiffs] placed [defendant ] in the position of submitting a false I

- 9 Form and filing inaccurate returns with the Internal Revenue Service and the Social Security Administration all of which are protected activity

. . . . ”5

Defendant also argued that to the extent plaintiffs’ claims concerned defendant’s legal representation of its clients, defendant’s representation of its clients constituted protected petitioning activity. Lastly, defendant contend ed these claims involve d a matter of public interest, e.g.
, political campaign contr ibutions for a candidate for public office.
Defendant also contend ed that the claims for defamation, invasion of privacy, negligent and intentional interference with prospective economic relations , and the Labor
Code section 1050 claim all arose from Pac heco’s letter to attorney Robert Kayvon, and
therefore arose from protected activity as the letter was sent in anticipation of litigation. 2
In su pport of the motions, defendant submitted a declaration by Nick Pacheco averring that plaintiffs were ter minated for falsifying Rocio’s employment verification
documents. The declaration also stated that plaintiffs were at

- will employees. Pacheco
denied that he pressured plaintiffs to make any campaign contributions , and authenticated a stipulation of Juan Jaramillo and the Los Angeles Ethics Commission for entry of an
order

. The stipulation provided that an investigation by the Ethics Commission revealed that Jaramillo partially reimbursed 11 of defendant’s employees (including plaintiffs) for campaign con tributions to Rudy Martinez. Jaramillo was ordered to pay a fine, as this conduct violated campaign finance laws. Pacheco averred that Jaramillo was not a firm employee, but was an “ independent contractor responsible for the marketing efforts to generate clients

. . . . ”

2 Carlos’s original complaint alleged that defendants also made false reports to the California Employment Development Department (EDD) to prevent Carlos from receiving unemployment benefits; however, these allegations were omitted from the operative complaint. Nevertheless, defendant’s motion argued that to the extent that Carlos ’s defamation claim may be based on statements made to the EDD, the claim arises from protected activity, as it concerns statements made in connection with an official proceeding.6

Pacheco also authenticated the letter he sent to Robert Kayvon. The letter stated “I am writing this letter to you as a professionall [ sic ] courtesy and to make you aware of some very disturbing information. [¶] It has come to my att ention that some of my former employees appear to be using your name to dr um up business for themselves.

. . . Mrs. Rodolfo Jimenez was contacted by a woman named Rocio to recommend you as an attorney that could help her with her mortgage loan problems.” According to the letter, Mrs. Jimenez was not a client of Pacheco’s office, as his client intake staff had deemed her unsuitable because she had a pending trustee’s sale

. Rocio falsely told Mrs. Jimenez that Pacheco was under investigation by the Attorne y General’s office, that former clients were suing Pacheco, and that Pacheco “was a fraud.” Mrs. Jimenez’s contact information “was confidentially maintained in [defendant’ s] phone database. At this moment I am working with the appropriate information te chnology personnel to determine how my business database was hacked. I am also looking into the illegalities involved with corporate theft of trade secrets (i.e., client lists and/or contact information).” Pacheco’s
letter stated his view that Carlos had unlawfully accessed defendant’ s databases. The letter went on to include a lengthy discussion (with appended exhibits) about Carlos Lira’s past, asserting Carlos had lost his real estate license in Utah for “fraudulent
loan transaction s ” ; that Carlos “h as a history of going after prior employers”; that Carlos had slandered Pacheco to an employee at another law office by falsely stating that “ [he]

was more concerned about playing golf than [his] clients.” Pacheco also represented that Carlos “is being su ed for fraud in Los Angeles County and I am trying to track that case down.”
Pacheco ’ s letter also reported that plaintiffs “ are going around trying to incite a lawsuit against me from former clients. ” The letter continued, “On a separate note, since

yo u have your own business you should also know that Rocio Lira was unable to provide employment eligibility documents for the Department of Homeland Security Form I

- 9.
I share this with you so that you take the necessary steps to protect yourself from any unintended consequences.”7

The letter concluded, “Once again , I share all this with you as a professional courtesy to make sure that you know your name is being used to drum up business. Also, you should know that I am exploring all my legal options to p rotect my clients’ interests from my former employees.” Plaintiffs’ oppositions 3 argued that defendant had not made the required prima
facie showing , and that in any event, there was a reasonable probability they would prevail on the merits of their clai ms. Specifically, plaintiffs argued that the gravamen of
their claims was defendant ’s wrongful and retaliatory employment practices, and not any protected activity. Both plaintiffs provided d eclarations detailing defendant’ s conduct, and the damages they had suffered as a consequence. Plaintiffs also argued they were entitled to recover their attorney fees in defending the motions, reasoning they were
frivolous. Their oppositions included declarations from their attorney detailing the legal
fees which h ad been incurred. No reply papers were filed. The trial court denied the motions, finding that defendant had not made the required prima facie showing

. The trial court also concluded that the motions were frivolous, reasoning that under no circumstance s was “firing the plaintiffs” protected activity, and that any protected activity in the complaints, such as plaintiffs’ reports of wrongdoing to the Ethics Commission, was protected activity attributable to plaintiffs and
not to defendants. The trial cou rt indicated that it would decide the amount of fees recoverable by separate motion, and plaintiffs’ appellate briefs indicate that that motion has been heard, and taken under submission. These timely appeals followe d, which we have consolidated for purpo ses of oral argument and decision.

3 The appellate record filed by defendants did not include plaintiffs’ opposition papers. Plaintiffs filed them with their motions to augment the record on appeal, which we hereby grant.8 DISCUSS I ON
1. Standard of R eview 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 Stat es Constitution or California Constitution in connection with a p ublic issue.” (§ 425.16, subd. (b)(1).) The trial court rules on a SLAPP 4 motion using a two

step process. First, it looks to see whether the defendant has made a prima facie showing
that the challenged causes of action arise from protected activity. (§ 425.16 , subd. (b)(1).) Next , if the defendant makes this threshold showing , the burden shifts to the plaintiff to demonstrate a probability o f prevailing on the claims. ( Ibid. ; s ee Taus v

. Loftus (2007) 40 Cal.4th 683, 712.) In making both of 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).) In assessing the
second prong , the court looks to admissible evidence. ( Brill Media Co.
, LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329, disapproved on other grounds by Simpson Strong

- Tie Co. , Inc. v. Gore (2010) 49 Cal.4th 12, 25 , fn. 3.) Our revie w on appeal is de

novo. ( Soukup v. Law Offices of Herbert Hafif ( 2006) 39 Cal.4th 260, 269, fn. 3.)
2. Adequacy of the Appellate Record As an initial matter, we note that defendant failed to provide an adequate record on appeal. Omitted from the record de signated by defendant are plain tiffs’ oppositions to
defendant’ s motions. “[I]f the record is inadequate for meaningful review, the appellant
defaults and the decision of the trial court should be affirmed.” ( Mountain Lion Coalition
v. Fish & Game Com mis sion (1989) 214 Cal.App.3d 1043, 1051.) Nevertheless, because plaintiffs have furnished their oppositions, and sought to augment the record to include them, we turn to the merits of defendant’ s claims on appeal.

4 SLAPP is an acronym for “strategic lawsuit against public participation.” ( Equilon Enterprises v. Consumer Cause, Inc . ( 2002) 29 Cal. 4th 53; 57, fn. 1 ( Equilon Enterprises ). )9

3. Protected A ctivity The defendant is requ ired to make a prima facie showing that one or more causes of action arise from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. ( Equilon Enterprises
, supra , 29 Cal.4th at p. 67.) The defendant meets this burden by demonstrating that the plaintiff’s claims arise from “(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 p lace 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).) The defendant need not prove that the challenged conduct is protected by the Fir st Amendment as a matter of law

. ( City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 80 ( City of Cotati )

. ) And
, a rguments about the merits of the claims are irrelevant to the court’s analysis in the first step. ( Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [it is irrelevant that defendant might prevail on the
merits of the claims where defendant cannot meet th e first prong of the anti

- SLAPP analysis] .)
Section 425.16 , subdivisio n s (e)(1) and (e) (2) “encompass [] any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.” ( Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.) Courts have broadly construed the definition of litigation

- related activity under section 425.16. (See Kashian
v. Harriman (2002) 98 Cal.App.4th 892, 908.) C ommunications preparatory to or in anticipation of litigation or other official proceeding s are within the scope of protected activity. ( Briggs , supra , p. 1115.) “ [ A]lthough litigation may not have commenced, if a statement ‘concern[s] the s ubject of the dispute’ and is made ‘in anticipation of litigation10

“contemplated in good faith and under serious consideration” ’ [citation ] then the statement may be petitioning activity protected by section 425.16.” ( Neville v. Chudacoff (2008) 160 Cal.A pp.4th 1255, 1268.)
I n deciding whether a complaint arises from defendant’s protected activity, courts
do not look to “the form of the plaintiff’ s cause of action but, rather, the defendant ’ s activity that gives rise to his or her asserted liability.” ( Nave llier v. Sletten (2002)
29 Cal.4th 82, 92 ( Navellier ) .) “[T] he mere fact that an action was filed after protected activity took place does not mean it arose from that activity.” ( Equilon Enterprises , supra , 29 Cal.4th at p. 66.) Nor does the fact “[ t]hat a cause of action arguably may have been triggered by protected activity” necessarily mean tha t it arises from such activity. ( City of Cotati , supra , 29 Cal.4th at p. 78.) In the anti

- SLAPP context, the crucial determinant is “whether the cause of action is based on the defendant’s free speech or petitioning activity.” ( Nav e llier
, at p. 89 .) “[T] he defendant’ s act underlying the plaintiff’ s cause of action must itself have been an act in furtherance of the rig ht of petition or free speech.” ( City of Cotati , at p. 78.) Where the protected activity will only be used as evidence in the case, and no claim is based on it, the protected activity is only
incidental to the claims. ( Wang v. Wal

- Mart Real Estate Business Trust (2007)
153 Cal.App.4th 790, 809

- 810.) Courts focus on the substance or gravamen of the plaintiff’s lawsuit to make this determination. ( Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658 , 669

- 670.)
Defendant contend s that plaintiffs’ claim s arise from protected activity under subdivisions (e)(1), (e)(2), and (e)(4) of section 425.16 , reasoning that these claims “are entirely depend e nt on activity which was made in connection with an issue under consideration or review by official proceeding authorized by law: in this case Los Angeles City Ethics Commission investigation and Defendants efforts to comply with the Immigration Reform and Control Act of 1986 (ICRA) which requires employers refrain from knowingly hiring or continuing to employ un authorized aliens is protected conduct and speech

. ” Defendant contends that to the extent plaintiffs’ claims arise from defendant’s legal representation of its clients, this constitutes protected petitioning11

activity. Defendant also argues that plaintiff s’ claims concern matters of public interest, because the “claims arise from political campaign contributions for a candidate to a public office

. . . which is clearly a matter of public interest.” We are not persuaded. The conduct underlying the se clai ms is defendant’s
termination of plaintiffs in retaliation for plaintiffs’ complaints about defendant ’ s wrongdoing

. ( Navellier
, supra , 29 Cal.4th at p. 89; City of Cotati , supra , 29 Cal.4th at

p. 78.) Although the ethics investigation , the competency of defendant’s legal representation of its clients
, and Rocio’s employment eligibility may be evidence in plaintiffs ’ case, or provide a defense to plaintiffs’ claims that their termination was
unlawful , under no circumstances are plaintiffs’ claims based on any of this conduct. ( Wang v. Wal

- Mart Real Estate Business Trust
, supra , 153 Cal.App.4th at pp. 809

- 810.) This case involves garden

- variety wrongful termination , retaliation and discrimination claims; defendant’s termination of plaintiffs is not somehow catapulted into protected activity because it occurred contemporaneously with an investigation by the Ethics
Commission ; or because it occurred in retaliation for plaintiffs’ whistleblowing activity ; or because plaintiffs allegedly caused defendant to mak e false filings to the IRS or Social Security Administration

. N one of plaintiffs ’ claims are based on this conduct. As to the claims arising from Pacheco’s letter to Kayvon, def e ndant failed to make the required prima facie showing that the letter was wr itten in anticipation of litigation
, contemplated in good faith

. 5 ( Neville v. Chudacof f , supra , 160 Cal.App.4th at p. 1268.) Although the letter represented that “ I am exploring all my legal options to protect my clients’ int erests from my former employe es, ” t his is not enough. The declaration which

5 Defendant argues on appeal that the trial court did not consider Pacheco’s declaration and exh ibits when ruling on defendant ’ s motions . D efendant does not cite to any portion of the record where this is evident , and we can find no such ruling. We are not required to make an independent search of the record and may disregard any claims when no appropriate reference is furnished. ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)12

authenticated the letter was silent about any anticipated litigation. Moreover, there was no evidence that litigation was ever commenced from which we could reasonably infer that litigation was anticipated a t the time the letter was drafted

. Defendant’s cited authorities do not persuade us otherwise. (See Neville v. Chudacoff

, supra , 160 Cal.App.4th at pp. 1258

- 1259 [the letter that formed the basis of
the challenged claim clearly stated that litigation was contemplated, and a lawsuit was
commenced a matter of months after the communication was sent that related to the matters addressed by the letter]; Contemporary Services Corporation v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1054

- 1055 [ claim based on communications made during
the pendency of litigation that clearly related to the litigation ]; Taheri Law Group v.
Evans (2008) 160 Cal.App.4th 482, 489 [same]; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777 , 780 [ claim s based on letter by a law firm soliciting celebrities to support an effort to file a complaint against the defendant, a pub lishing firm, for the defendant’ s alleged failure to pay royalties on audio recor dings by celebrities to charities designated by tho se celebrities ]

. ) In all of these cases, litigation had already commenced, or there was a very real threat of litigation, which was evidenced by the parties’ declarations in support of their motions, or from the
communications themselves

. ( Contemporary S ervices Corporation , at pp. 1054

- 1055.)
Such is not the case here. Lastly, concerning def

e ndant’ s argument that any statements made to the EDD
constitute d protected activity, we note that the operative pleadings make no allegations about the EDD, and th erefore, any statements to the EDD are not implicated here, and are

not the proper subject of defendant’ s motion s

. (See, e.g. , JKC3H8 v. Colton (2013)
221 Cal.App.4th 468, 479.)
DISPOSITION
The orders are affirmed

. Respondents are to recover their cos ts on appeal.

GRIMES, J. WE CONCUR : BIGELOW, P. J. FLIER , J.