Filed 7/5/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STEVE AHN,

Plaintiff and Appellant,

v.

STEWART TITLE GUARANTY

COMPANY,

Defendant and Respondent.

 D080391

 (Super. Ct. No. 37-2019-00014641-

 CU-WT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Richard S. Whitney, Judge. Affirmed.

Wingert Grebing Brubaker & Juskie, Stephen C. Grebing, and Camille 

E. Kollar for Plaintiff and Appellant.

Best Best & Krieger and Matthew L. Green for Defendant and 

Respondent.
2

Amidst a corporate merger, a sales executive is told there are 

limitations on how he can compete for the merging partner’s clients. He loses 

sales commissions and is terminated for poor sales performance. Does he 

have standing to assert a cause of action under the Cartwright Act, 

California’s antitrust statute? (Bus. & Prof. Code,1 § 16700 et seq.) On the 

particular facts alleged in this case, the answer is clearly no. 

Ahn was a sales executive for a title insurer who claims his sales 

figures were adversely affected when his employer barred him from using a 

particular sales pitch to solicit customers from a competitor who was also a 

proposed corporate merger partner. Ahn’s pitch told prospective clients that 

after the proposed merger was finalized, they would have no choice but to 

comply with his company’s higher-cost, less flexible underwriting standards. 

He attempted to use this pitch to convince these clients to abandon the 

competitor before the merger. 

But a plaintiff suing under the Cartwright Act must suffer “ ‘antitrust 

injury,’ ” which in turn requires harm that “stem[s] from the anticompetitive 

aspect of [defendants’] alleged conduct.” (Cellular Plus, Inc. v. Superior Court

(1993) 14 Cal.App.4th 1224, 1235 (Cellular Plus).) Accepting Ahn’s claim

that the two merging entities agreed not to fully compete for each other’s 

customers while their merger was pending, Ahn does not claim injury from 

the alleged anticompetitive aspects of this agreement, but rather from

conduct that emphasized their competitive differences. A complaint that he 

could not lure customers with a pitch about their restricted postmerger 

options does not constitute an antitrust injury, meaning Ahn lacks standing 

to sue under the Cartwright Act. We find an alternative ground to affirm 

1 Further undesignated statutory references are to the Business and 

Professions Code.
3

based on Ahn’s concession at oral argument that Fidelity and Stewart 

attempted to merge in good faith, and had the merger gone through, his 

Cartwright Act claim would be barred under Asahi Kasei Pharma Corp. v. 

CoTherix, Inc. (2012) 204 Cal.App.4th 1 (Asahi). The mere circumstance that 

the merger was not consummated is not enough to distinguish this case from 

Asahi.

Our conclusion that Ahn cannot demonstrate an antitrust violation 

affects his derivative economic relations tort claims, both of which require 

independently wrongful conduct. Concluding the trial court did not err in 

granting summary judgment, we therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background and Claims Against Stewart

Developers of wind, solar, and renewable energy projects must obtain 

title insurance securing the land and improvements used in a project in order 

to obtain financing for necessary infrastructure (wind turbines, solar panels, 

etc.).2 Title insurance protects lenders and purchasers from defects in the 

property’s title. Because these infrastructure projects are usually built on 

undeveloped rural land, a major aspect of obtaining title insurance involves 

getting waivers from owners of subsurface mineral rights. For many rural 

parcels, subsurface mineral rights were sold a long time ago to mining 

companies or oil and gas developers. Current landowners may be unsure if 

mineral rights were ever sold, who bought them, and who currently holds

these interests. Once the current interest holders are identified and located, 

developers must obtain waivers, which is a difficult and time-consuming 

2 We draw background facts from the operative complaint and its crossreferenced administrative complaint by the Federal Trade Commission (FTC) 

solely for context.
4

process. Thus, “title issues for these parcels can be highly complex and a title 

issue with even one parcel may impact the entire renewable energy project.” 

Four underwriters, known as the “Big 4,” dominate the title insurance 

industry across the United States. Fidelity National Financial, Inc. (Fidelity) 

and Stewart Title Guaranty Company (Stewart) are two members of the Big 

4 and horizontal competitors. In the renewable energy title insurance 

market, Stewart competed for business with Fidelity’s wholly owned 

subsidiary, Chicago Title. 

Ahn previously worked as a senior account executive at Stewart for 

fifteen years. In 2014, Chicago Title recruited him as their Vice President for 

Energy Services “for the specific purpose of competing with Stewart’s title 

business in renewable energy.” Ahn found it difficult to compete with 

Stewart given Fidelity’s “more stringent underwriting policies concerning 

surface waivers from the holders of mineral rights.” Fidelity generally 

required a developer to obtain waivers from 100 percent of the holders of 

subsurface mineral rights as a condition to providing title insurance, and 

rarely granted exceptions. Stewart, on the other hand, had looser 

underwriting standards and would provide insurance coverage so long as 

developers secured waivers from 51 percent or more of the mineral rights 

holders. These differences in underwriting standards offered “a significant 

competitive advantage to Stewart and made convincing clients to switch from 

Stewart to Fidelity very difficult.” Few of Ahn’s new clients at Chicago Title

had moved over from Stewart. 

In March 2018, Fidelity announced a tentative merger with Stewart, 

subject to shareholder and regulatory approval. Ahn would later allege that 

Fidelity and Stewart agreed during the premerger period not to compete for 

each other’s clients and to allocate their customers. He believed he was fired 
5

for attempting to actively compete with Stewart for clients during this 

premerger period. The specific sales pitch he sought to make, which compels 

our conclusion that he lacks antitrust standing, is discussed further below.

The merger ultimately did not go through. In September 2019, the 

FTC challenged it because the proposed merger would concentrate the Big 4 

into three main players.3 The FTC alleged this consolidation was “likely to 

result in anticompetitive harm.” Beyond losing one of four competitors in the 

market, the FTC was concerned that Stewart, in particular, had “earned a 

reputation among market participants for being more creative and flexible in 

providing title insurance—to the benefit of its customers—and for selling title 

insurance at lower prices than the other Big 4 underwriters.” More 

specifically, 

“Stewart has shown a greater willingness to undercut the 

other Big 4 underwriters on price, or offer more favorable 

coverage terms, in order to win business. Even within this 

four-firm ‘oligopoly,’ Fidelity has been forced to reduce its 

prices in response to Stewart. Stewart also finds creative 

ways to mitigate or assume risk in order to compete for 

business and has been willing to provide coverage where 

Fidelity and others in the Big 4 have declined to do so 

unless the customers can meet additional burdensome 

conditions. Where the current oligopoly has already 

softened competition, Stewart’s approach has prompted 

others in the Big 4 to adjust their own competitive 

strategies to the benefit of customers.” 

In the FTC’s view, neither Stewart nor Fidelity had demonstrated that the 

merger would yield efficiencies that would counteract anticipated competitive 

harm to consumers. Following the FTC’s complaint, Fidelity and Stewart 

abandoned their merger attempt. 

3 Ahn was terminated in November 2018, ten months before the FTC 

filed an administrative complaint challenging the proposed merger.
6

Ahn sued his employer Chicago Title, its parent Fidelity, Fidelity’s 

Executive Vice President Dan DuBois, and Stewart. He filed his operative 

First Amended Complaint after the FTC complaint. Only the claims against 

Stewart are relevant to this appeal. Ahn alleged that Stewart violated the 

Cartwright Act by conspiring with Fidelity and Chicago Title “to curtail and 

restrict competition between Fidelity/Chicago and Stewart in wind, solar and 

renewable energy projects.” He asserted that the companies “agreed to 

allocate customers such that Fidelity would not compete for Stewart’s 

customers” pending the merger. The purpose behind this arrangement, in 

Ahn’s view, was to maintain Stewart’s market share, earnings, and customer 

base while the merger was pending. He further accused Stewart of tortiously 

interfering with his contractual relations and interfering with his prospective 

economic advantage, with these tort causes of action resting on an alleged 

antitrust violation to show independently wrongful conduct.

In other words, Ahn’s three causes of action against Stewart rose or fell 

on his antitrust claim. That claim, in turn, was predicated on efforts by 

Fidelity and Stewart to restrain Ahn’s sales tactics as follows.

Soon after the merger was announced in 2018, Ahn was told by Joe 

Goodman, his supervisor at Chicago Title, that Stewart would likely have to 

conform postmerger to Fidelity’s tighter underwriting guidelines—i.e., 

waivers would be required from all rather than half of subsurface mineral 

rights holders. Ahn saw this as an opportunity to compete for Stewart’s 

customers. As he put it in the complaint: “If Stewart had to meet 

Chicago/Fidelity’s more stringent underwriting standards, this would end 

Stewart’s competitive advantage and open the door for Ahn to convince his 

old book of business (and other renewable developers) to choose Ahn, and 

therefore Chicago, over Stewart.” Thus, in an attempt to lure Stewart clients 
7

to Chicago, Ahn began telling them about the anticipated merger “and 

looming underwriting parity between Stewart and Chicago/Fidelity.” 

To Ahn’s surprise, his active efforts to compete for clients with this 

pitch were met with internal hostility at Chicago Title. Ahn was told not to 

send public notices about the merger to Stewart’s clients. With Goodman’s 

approval, however, Ahn continued his outreach. As several large clients 

began to express interest in moving their projects from Stewart to Chicago 

Title, senior executives at both companies grew concerned. In a May 2018 email exchange attached to the complaint, Dawn Anderson, a senior 

underwriter at Stewart, expressed concern that Ahn was telling a major wind 

farm client about impending postmerger underwriting shifts at Stewart. 

Because of Ahn’s outreach to that client, Anderson wrote that her team 

risked losing a project they had spent months on. Anderson’s e-mail made its 

way up the chain at Stewart and was passed onto Fidelity executives, who 

internally commented on “issues with Steve Ahn.” DuBois told Goodman 

that Stewart’s complaint about Ahn was “more than concerning,” noting it 

would be a “big problem” if Ahn was still discussing the merger with 

Stewart’s clients. Feeling he was in “[h]ot water” from Ahn’s conduct, 

Goodman told Ahn to “stand down” and not mention the merger or 

anticipated underwriting changes to prospective clients. 

Ahn alleged that these restrictions were designed to prevent him from 

competing with Stewart for clients, in furtherance of the companies’ alleged 

premerger conspiracy. Had he been allowed to compete in the manner he 

desired, Ahn believed he would have brought several Stewart customers over 

to Chicago Title. Stewart’s shareholders approved the merger in October 

2018. Ahn circulated the associated press releases to prospective clients with 

Goodman’s authorization. But six days later, he was abruptly terminated. 
8

B. Summary Judgment Proceedings4

Stewart moved for summary judgment. (Code Civ. Proc., § 437c.) As to 

the Cartwright Act, it argued Ahn lacked standing, citing Vinci v. Waste 

Management, Inc. (1995) 36 Cal.App.4th 1811 (Vinci) for the proposition that 

losing a job was not the type of injury the Act sought to rectify. Stewart also 

maintained that Ahn could not prove any anticompetitive agreement between 

it and Fidelity. Finally, Stewart asserted that the Cartwright Act claim 

failed on the merits because, under Asahi, supra, 204 Cal.App.4th 1, the Act 

did not cover premerger coordination. 

As Stewart explained, Ahn’s remaining economic tort causes of action 

required some type of independently wrongful act. (Ixchel Pharma, LLC v. 

Biogen, Inc. (2020) 9 Cal.5th 1130, 1142, 1148 (Ixchel).) Because Ahn could 

not state an antitrust claim, Stewart contended these derivative tort claims 

likewise failed. Moreover, Stewart claimed, those causes of action failed for 

lack of causation because Chicago Title terminated Ahn for legitimate 

performance-based reasons. 

Opposing the motion, Ahn distinguished Vinci as a case where the 

plaintiff had not been terminated to further an anticompetitive scheme. In 

Ahn’s view, factual issues precluded summary judgment as to whether 

communications between Stewart and Fidelity executives suggested a 

premerger conspiracy to restrain competition. Likewise, Ahn claimed factual 

issues existed as to whether Stewart tortiously interfered with his 

employment relationship. 

The parties appeared before Judge Richard Whitney in March 2022. 

Arguing against the tentative ruling in favor of Stewart, Ahn’s counsel 

4 Because this case ultimately turns on questions of law raised on 

summary judgment, we need not dwell on the parties’ factual submissions.
9

claimed Vinci, supra, 36 Cal.App.4th 1811 applied the incorrect federal 

antitrust standard to reject standing whereas the Cartwright Act expressly 

allowed indirect market participants to sue.5 As for the tort claims, Ahn 

contended that Ixchel required an independent wrong to prove tortious 

interference with contract in order to protect business competition. He 

claimed the requirement did not apply given Stewart’s anticompetitive 

actions here. 

The trial court rejected these arguments. Citing Vinci, supra, 36 

Cal.App.4th 1811 determined that Ahn lacked standing because he had less 

incentive than Stewart’s market competitors to vindicate the public’s interest 

in antitrust enforcement. Even otherwise, the court concluded on the merits 

that the Cartwright Act applied to neither mergers nor premerger 

5 In Illinois Brick Co. v. Illinois (1977) 431 U.S. 720, the United States 

Supreme Court barred indirect purchasers from bringing federal antitrust 

damages claims. In response, the California Legislature amended section 

16750, subdivision (a) to allow indirect purchaser claims under the 

Cartwright Act. (See Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 

15, 20−22.) Since Illinois Brick, federal courts have developed a multifactor 

test for evaluating antitrust standing under the Sherman Act. (See 

Associated General Contractors v. Cal. State Council of Carpenters (1983) 459 

U.S. 519, 537−544 (AGC).) These so-called “AGC factors” consider among 

other things whether there are more direct victims who can challenge the 

alleged antitrust violation. Despite the Cartwright Act’s express extension to 

indirect purchasers, one intermediate appellate court applied the AGC factors 

to dismiss a case brought by a terminated plaintiff for lack of standing. 

(Vinci, supra, 36 Cal.App.4th at pp. 1814−1817.) After Vinci was decided, the 

California Supreme Court confirmed in Aryeh v. Canon Business Solutions 

(2013) 55 Cal. 4th 1185, 1195 (Aryeh) that federal antitrust standards “are at 

most instructive, not conclusive, when construing the Cartwright Act” given 

their distinct origins. Ahn argued below and on appeal that Aryeh and this 

court’s standing analysis in Cellular Plus, supra, 14 Cal.App.4th 1224 

undermine Vinci’s reasoning. For reasons we explain, we need not reach this 

question to resolve this appeal. 
10

coordination, unless the merger was a sham to facilitate cartel behavior. 

Because Ahn had not provided evidence suggesting the proposed merger was 

a sham, the court concluded he lacked standing under Asahi, supra, 204 

Cal.App.4th at page 16. Turning to the tort claims, the court noted that they 

rested on a Cartwright Act violation for the requisite independently wrongful 

conduct. Because Ahn could not assert a violation under the Cartwright Act, 

it reasoned he could likewise not raise a question of fact as to whether

Stewart did anything independently wrongful. Accordingly, it granted the

motion for summary judgment and entered judgment for Stewart. 

DISCUSSION

In evaluating Ahn’s appeal on summary judgment, we focus largely on 

the issue of antitrust standing. The trial court found that Ahn lacked 

standing because there were more direct claimants who could sue. On de 

novo review (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860

(Aguilar)), although we agree that Ahn lacks standing to sue under the 

Cartwright Act, we do so based on the separate antitrust injury requirement. 

(See Securitas Security Services USA, Inc. v. Superior Court (2011) 197 

Cal.App.4th 115, 120 [“We will affirm an order granting summary judgment 

or summary adjudication if it is correct on any ground that the parties had an 

adequate opportunity to address in the trial court, regardless of the trial 

court’s stated reasons.”].) 

Ahn claims he was injured because he himself could not hinder 

competition with a sales pitch to lure Stewart customers to Chicago Title. 

Because this is not the type of injury the Cartwright Act seeks to protect, he 

lacks antitrust standing. We further conclude Ahn’s Cartwright Act cause of 

action fails on the merits given his concession at oral argument that his claim

would be barred under Asahi had the merger between Fidelity and Stewart 
11

gone through. Our conclusion that Ahn cannot state an antitrust claim 

prevents him from demonstrating a triable issue as to either of his derivative 

business tort claims, which require proof of an independently wrongful act. 

As a result, summary judgment was properly granted. 

A. Standing under the Cartwright Act requires an antitrust injury.

The Cartwright Act (§§ 16700−16770) is California’s principal antitrust 

statute. It “ ‘generally outlaws any combinations or agreements which 

restrain trade or competition or which fix or control prices.’ ” (Pacific Gas & 

Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1147.) The Act 

serves “overarching goals of maximizing effective deterrence of antitrust 

violations, enforcing the state’s antitrust laws against those violations that 

do occur, and ensuring disgorgement of any ill-gotten proceeds.” (Clayworth 

v. Pfizer (2010) 49 Cal.4th 758, 763−764.) Broadly speaking, the Cartwright 

Act is premised on the notion that competition yields efficient resource 

allocation, lower prices, higher quality, and greater social welfare. (In re 

Cipro Cases I & II (2015) 61 Cal.4th 116, 136 (Cipro).) “At its heart is a 

prohibition against agreements that prevent the growth of healthy, 

competitive markets for goods and services and the establishment of prices 

through market forces.” (Ibid.)6

6 The Sherman Act is the Cartwright Act’s federal counterpart. 

“Sections 1 and 2 of the Sherman Act, 15 U.S.C. . . . are broadly worded 

statutes designed to counter restraints of trade and monopolistic practices; 

but are actionable by private individuals only through Sections 4 and 16 of 

the Clayton Act, 15 U.S.C. §§ 15 & 26. Section 4 of the Clayton Act allows 

private enforcement of the antitrust laws through a treble damages action by 

‘any person who shall be injured in his business or property by reason of 

anything forbidden in the antitrust laws[.]’ 15 U.S.C. § 15.” (Re/Max Int’l v. 

Realty One, Inc. (N.D.Ohio 1995) 900 F.Supp. 132, 145.)
12

The primary substantive provision of the Cartwright Act is found in 

section 16720, which prohibits a “trust,” defined as “a combination of capital, 

skill, or acts by two or more persons” for such purposes as price-fixing, 

exclusive dealing, or restraints on trade or commerce or competition. As it 

relates to Ahn’s claims, “businesses may not engage in a horizontal allocation 

of markets, with would-be competitors dividing up territories or customers.” 

(Cipro, supra, 61 Cal.4th at p. 148.) Except as otherwise provided by statute, 

“every trust is unlawful, against public policy and void.” (§ 16726.) 

Although framed in absolute language, “deciding antitrust illegality is 

not as simple as identifying whether a challenged agreement involves a 

restraint of trade.” (Cipro, supra, 61 Cal.4th at pp. 145−146.) Only 

unreasonable restraints of trade are prohibited, so the “rule of reason”

generally asks whether the challenged conduct on balance promotes or 

suppresses competition. (Id. at p. 146.) Certain categories of agreements or 

practices are deemed per se illegal (ibid.), eliminating the need for elaborate 

market analysis to evaluate any anticompetitive effects. (Marsh v. 

Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 494 

(Marsh).) Ahn alleges a horizontal combination between Fidelity/Chicago 

Title and Stewart to allocate or avoid competing for clients, an arrangement 

that would be per se illegal. (Id. at p. 493.) 

The Cartwright Act has a distinct origin from the Sherman Act (Aryeh, 

supra, 55 Cal.4th at p. 1195), and there are notable differences between the 

two schemes. Indirect purchasers lack standing under federal law, whereas 

the Cartwright Act expressly allows indirect purchasers to sue. (See note 5, 

ante.) Mergers are covered under federal antitrust law but not under the 

Cartwright Act. (State of California ex rel. Van de Kamp v. Texaco, Inc.

(1988) 46 Cal.3d 1147, 1163 (Texaco).) In addition, because the Cartwright 

Act contains no analogue to the antimonopoly provision found in section 2 of 

the Sherman Act, “single firm monopolization is not cognizable under the 

Cartwright Act.” (Asahi, supra, 204 Cal.App.4th at p. 8.)
13

The essential elements of an antitrust claim under the Cartwright Act 

are an unlawful agreement, wrongful acts committed pursuant to it, and 

damages. (Marsh, supra, 200 Cal.App.4th at p. 493.) A proper plaintiff may 

sue to recover treble damages and injunctive relief. (§ 16750, subd. (a).) 

Section 16750, subdivision (a) confers standing on “any person who is injured 

in his or her business or property by reason of anything forbidden or declared 

unlawful by this chapter, regardless of whether such injured person dealt 

directly or indirectly with the defendant.” A key component of analyzing 

antitrust standing is determining whether a plaintiff suffered an “antitrust 

injury.”

The antitrust injury requirement derives from the United States

Supreme Court decision in Brunswick Corp. v. Pueblo Bowl–O–Mat, Inc. 

(1977) 429 U.S. 477 (Brunswick). (See Flagship Theatres of Palm Desert, 

LLC v. Century Theatres, Inc. (2011) 198 Cal.App.4th 1366, 1378 (Flagship).) 

The plaintiffs in Brunswick sued a defendant under the Sherman Act, 

alleging that it had acquired failing bowling alleys, thereby preserving 

competition in the market and depriving plaintiffs of the profits they 

otherwise stood to make had competition been reduced. (Brunswick, at 

p. 488.) The Supreme Court held that the plaintiffs lacked standing because 

they had not suffered an injury “of the type the antitrust laws were intended 

to prevent and that flows from that which makes defendant’s acts unlawful.” 

(Id. at p. 489.) California courts have since extended this requirement to the 

Cartwright Act, notwithstanding other differences between the two schemes. 
14

(See Kolling v. Dow Jones & Co. (1982) 137 Cal.App.3d 709, 723 (Kolling); 

Cellular Plus, supra, 14 Cal.App.4th at p. 1234.7)

The purpose of requiring antitrust injury is to “ensure[ ] that the harm 

claimed by the plaintiff corresponds to the rationale for finding a violation of 

the antitrust laws in the first place, and it prevents losses that stem from 

competition from supporting suits by private plaintiffs for either damages or 

equitable relief.” (Atlantic Richfield, supra, 495 U.S. at p. 342.) Accordingly,

“a plaintiff can recover only if the loss stems from a competition-reducing 

aspect or effect of the defendant’s behavior.” (Id. at p. 344, italics added; 

accord Flagship, supra, 198 Cal.App.4th at pp. 1379−1380 [“an antitrust 

plaintiff must show that it was injured by the anticompetitive aspects or 

effects of the defendant’s conduct, as opposed to being injured by the 

conduct’s neutral or even procompetitive aspects (as in Brunswick)”].) “If the 

injury flows from aspects of a defendant’s conduct that are beneficial or 

neutral to competition, there is no antitrust injury, even if the defendant’s 

7 Standing involves two separate inquiries in antitrust cases—first, 

whether a plaintiff suffered an antitrust injury, and second, whether that

plaintiff is the proper enforcer to sue for antitrust violations. (Todorov v. 

DCH Healthcare Authority (11th Cir. 1991) 921 F.2d 1438, 1449 (Todorov).) 

Cellular Plus seems to have merged the two concepts together in suggesting 

that antitrust injury is broader under state law than federal law. (Cellular 

Plus, supra, 14 Cal.App.4th at p. 1234.) While the Cartwright Act indeed 

allows broader standing in a sense by letting indirect victims sue (see note 5, 

ante), the antitrust injury requirement remains the same across state and 

federal law. (See Kolling, supra, 137 Cal.App.3d at p. 723 [relying on

Brunswick to define antitrust injury]; Cellular Plus, at p. 1234 [same, also 

relying on subsequent clarifying language in Atlantic Richfield Co. v. USA 

Petroleum Co. (1990) 495 U.S. 328, 340−341 (Atlantic Richfield)].) Although 

Ahn addressed antitrust injury in his briefs and cited relevant case authority, 

we issued a focus letter before oral argument directing the parties to 

comment on how Ahn’s specific allegations comport with this standing 

requirement.
15

conduct is illegal.” (Theme Promotions, Inc. v. News Am. Mktg. FSI (9th Cir. 

2008) 546 F.3d 991, 1003.)

This court previously evaluated antitrust injury in Cellular Plus, 

supra, 14 Cal.App.4th 1224. In that case, two groups of plaintiffs sued 

licensed cell phone service providers (U.S. West and PacTel) over injuries 

caused by defendants’ alleged price fixing scheme. Consumer-plaintiffs

alleged that they paid too much for cellular service as a result of price fixing, 

whereas corporate sales agents alleged that price fixing resulted in 

artificially high prices, costing them sales. We concluded that both groups of 

plaintiffs had standing under the Cartwright Act. (Id. at pp. 1234−1235.) As 

to the sales agents, their alleged injuries were both “within the type section 

16750 seeks to prevent and directly stem[med] from the ‘anticompetitive 

aspect’ of U.S. West’s and PacTel’s alleged conduct.” (Cellular Plus, at 

p. 1235.) 

Applying that standard, the question is whether Ahn’s claimed injuries 

were (1) of a type the antitrust laws were designed to prevent, and (2) flowed 

from the anticompetitive nature of Stewart’s conduct. 

B. Ahn cannot show he suffered an antitrust injury.

Examining the allegations in the operative complaint, we reach a 

different conclusion than in Cellular Plus. Here, the undisputed facts show 

Ahn did not suffer the requisite antitrust injury for Cartwright Act standing. 

For reasons we explain, he cannot show that his lost sales or termination 

stemmed from a competition-reducing aspect of Stewart’s behavior. Instead,

it was Ahn who attempted to profit from the competition-reducing market 

consolidation aspects of the proposed merger. Stewart may have prevented 

him from doing so, allegedly costing him sales and his job, but this harm did 

not amount to an antitrust injury.
16

“The purpose of the law of summary judgment is to provide courts with 

a mechanism to cut through the parties’ pleadings in order to determine 

whether, despite their allegations, trial is in fact necessary to resolve their 

dispute.” (Aguilar, supra, 25 Cal.4th at p. 843.) It necessarily follows that 

the pleadings frame the issues on a motion for summary judgment. (Conroy 

v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 (Conroy).) 

“[T]he burden of a defendant moving for summary judgment only requires 

that he or she negate plaintiff's theories of liability as alleged in the 

complaint; that is, a moving party need not refute liability on some 

theoretical possibility not included in the pleadings.” (Hutton v. Fidelity 

National Title Co. (2013) 213 Cal.App.4th 486, 493.) Thus, in seeking 

summary judgment on standing grounds, Stewart needed only to show that 

Ahn lacked an antitrust injury based on the theory of liability alleged in his 

complaint. In so doing, it could rely on the factual allegations in Ahn’s 

complaint. (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324 [collecting 

cases].) Evaluating that question of law on de novo review, we conclude Ahn 

lacked standing to sue.

Ahn alleges that Fidelity and Stewart entered into a horizontal market 

allocation agreement not to actively compete for each other’s clients. On its 

own, this suggests a market division, a per se violation of the Cartwright Act. 

(Marsh, supra, 200 Cal.App.4th at p. 493.) As the FTC complaint indicated, 

the title insurance market already reflected significant consolidation, with 

Stewart offering creative, flexible underwriting competition to Fidelity, 

benefiting customers with lower prices. Had Ahn sued because he was 

prevented from contacting Stewart customers altogether, this restraint would 

stem from the anticompetitive nature of the alleged market division. But this 

is not what Ahn alleged or what the evidence showed.
17

Instead, Ahn sued under a theory that he was precluded from luring 

Stewart customers with the pitch that the proposed merger with Fidelity 

would reduce existing choice in the market. He tried to convince Stewart’s 

customers that postmerger, they would have to conform to Fidelity’s more 

stringent underwriting requirements. In effect, Ahn was telling Stewart 

customers that the market was about to have only one underwriting choice—

the more stringent standards and more expensive option of Fidelity—which 

would require waivers from all holders of subsurface mineral rights to 

underwrite the policy. Rather than risk a chance of not meeting those more 

stringent standards later, Ahn urged customers to preemptively switch to 

Chicago Title by anticipating the eventual loss of competitive choice. In so 

doing, Ahn pleaded his way out of being able to show the requisite antitrust 

injury.

“This is not the first time a plaintiff has tried to use the antitrust laws 

as a means to gain benefits based on anticompetitive conduct.” (Todorov, 

supra, 921 F.2d at p. 1454.) Several federal cases support our conclusion that 

Ahn did not suffer an antitrust injury. The “ ‘central evil’ ” addressed by the 

antitrust laws is the elimination of competition that would otherwise exist. 

(Am. Needle, Inc. v. National Football League (2010) 560 U.S. 183, 195, 

quoting 7 P. Areeda & H. Hovenkamp, Antitrust Law (2d ed. 2003) P1462b, 

193–194.) “[T]he Cartwright Act, like all antitrust laws, is about the 

protection of competition, not competitors.” (Asahi, supra, 204 Cal.App.4th at 

p. 20, internal quotation marks omitted.) Where, as here, a plaintiff seeks to 

join rather than disrupt anticompetitive behavior, there is no antitrust 

injury. 

For example, in Top Agent Network, Inc. v. Nat’l Ass’n. of Realtors 

(N.D.Cal. 2021) 554 F.Supp.3d 1024, a real estate agent network challenged a 
18

trade association policy preventing it from marketing exclusive homes 

privately off the multiple listing service (MLS). (Id. at pp. 1026−1027, 1029.) 

While the complaint plausibly alleged that the association’s policy had 

anticompetitive effects in limiting competition for off-MLS sales, the network 

had “failed to state an antitrust injury because its alleged harm—the loss of 

agent members—does not flow from effects of the Policy that are harmful to 

competition.” (Id. at p. 1032.) Instead, the network itself sought to profit off 

an anticompetitive business model that decreased competition for exclusive 

listings. (Id. at pp. 1032−1033.) As the court explained, “one of the virtues of 

the antitrust standing analysis is that it prevents such a plaintiff from 

deploying antitrust law as a shield for its own anticompetitive injuries.” 

(Id. at pp. 1034−1035.)

A similar result was reached in Local Beauty Supply, Inc. v. Lamaur, 

Inc. (7th Cir. 1986) 787 F.2d 1197. Local, a distributor of beauty supply 

products, was terminated by a manufacturer named Lamaur after other 

distributors complained about Local’s sales practices. Accepting Local’s 

premise that alleged price-fixing between Lamaur and other distributors 

violated antitrust laws, the court held that Local could nevertheless not 

demonstrate antitrust injury. (Id. at pp. 1200−1202.) Citing Brunswick, 

supra, at page 488, it reasoned that Local did not suffer antitrust injury 

because its damages did not “ ‘flow from that which makes the defendants’

acts unlawful.’ ” Instead, Local was damaged by its “inability to continue to 

profit from the anticompetitive nature of the violation”—Local’s interests 

were in fact “disserved by enhanced competition.” (Local, at pp. 1202−1203.) 

As the court concluded, “lost profits from the inability to continue to take 

advantage of inflated prices due to antitrust conduct are not representative of 

antitrust injuries . . . .” (Id. at p. 1203; see also Jack Walters & Sons Corp. v. 
19

Morton Bldg., Inc. (7th Cir. 1984) 737 F.2d 698, 708 [“[a plaintiff] will not be 

heard to complain about having to meet lawful price competition, which 

antitrust law seeks to encourage, merely because the competition may have 

been enabled by an antitrust violation”].)8

Drawing from these authorities, we conclude that Ahn cannot show he 

suffered an antitrust injury as required to sue under the Cartwright Act. 

While he points to the FTC complaint to suggest the proposed merger 

between Fidelity and Stewart was anticompetitive, that is not the source of 

his injury. He does not claim that he was barred from contacting Stewart 

customers altogether as a result of a horizontal market allocation agreement 

between Stewart and Fidelity. Instead, he claims Stewart blocked him from 

using a particular sales pitch. Ahn tried to convince Stewart clients to switch 

to Fidelity by claiming that they would no longer have a choice postmerger to 

pick Stewart’s more flexible underwriting standards and lower costs. Ahn 

may well have lost sales and been fired as a result, but this claimed injury 

8 Other cases are similar. In Daniel v. Am. Bd. of Emergency Med. (2d 

Cir. 2005) 428 F.3d 408, doctors challenged a certifying board’s control over 

emergency room doctors. Even if the plaintiffs plausibly alleged supply 

constraints, they could not show antitrust injury where the harm alleged was 

denial of the opportunity to command the same super-competitive pay earned 

by their certified colleagues. (Id. at pp. 438−439.) As the court reasoned, 

“plaintiffs cannot themselves state an antitrust injury when their purpose is 

to join the cartel rather than disband it.” (Id. at p. 440; see also Sanjuan v. 

American Bd. of Psychiatry and Neurology (7th Cir. 1994) 40 F.3d 247, 251.)
20

flows from Ahn’s attempt to profit from the anticompetitive effects of the 

proposed merger, and not from conduct the Cartwright Act seeks to protect.9

Ahn likens this case to Kolling, supra, 137 Cal.App.3d at page 724, 

where the loss of a newspaper distributorship due to a publisher’s price-fixing 

scheme was the type of injury the Cartwright Act meant to prevent. He also

draws comparisons to Cellular Plus, supra, 14 Cal.App.4th at page 1235, 

where lost sales by sales agents affected by an alleged price-fixing scheme by 

two cellular service companies sufficed to show antitrust injury. In his view, 

losing his book of business was also the type of injury the antitrust laws 

cover. The problem for Ahn is that these comparisons run only skin-deep. 

On closer examination, neither the newspaper distributor in Kolling nor the 

cell phone sales agents in Cellular Plus were trying to profit from 

anticompetitive effects of the defendant’s conduct. These cases are 

distinguishable and do not change our conclusion that Ahn’s theory of the 

case is inconsistent with his having suffered an antitrust injury.10

9 Pressed at oral argument to explain how consumers were harmed when 

Ahn was barred from making his pitch, counsel suggested that Stewart 

customers might face project disruptions with midstream postmerger 

underwriting changes. But project disruption is not the same thing as 

antitrust injury. Ahn admits he sought to convert Stewart clients to a more 

expensive, less flexible underwriting option by suggesting the market would 

soon offer less consumer choice. This is not the type of harm the antitrust 

laws protect against.

10 Much of the parties’ arguments before the trial court and on appeal 

centered on the merits of Vinci, supra, 36 Cal.App.4th 1811, and whether a

loss of employment could support a claim under the Cartwright Act. In 

concluding Ahn lacks standing because he cannot show an antitrust injury, 

we express no view on these matters.
21

C. Ahn’s Cartwright Act claim fails on the merits.

The trial court concluded that the Cartwright Act did not apply to the 

premerger activity challenged in this case. In its landmark Texaco decision, 

the California Supreme Court concluded that unlike the Sherman Act, the 

Cartwright Act applies only to entities that combine and perdure—i.e., 

“continue as separate, independent competing entities during and after the 

collusive action.” (Texaco, supra, 46 Cal.3d at p. 1163.) It thus does not 

“regulate the bona fide purchase and sale of one firm by another.” (Ibid.) 

This rationale was extended to specified premerger activities in Asahi, supra, 

204 Cal.App.4th 1.

Japanese pharmaceutical company Asahi sued California-based 

CoTherix for halting marketing or development of Asahi’s licensed

hypertension drug upon CoTherix’s acquisition by competing pharmaceutical 

company Actelion. Asahi challenged the company’s premerger activity under 

the Cartwright Act. The court rejected that claim by extending the reasoning 

of Texaco. Although Asahi disclaimed any challenge to the merger itself, the 

court found it “difficult to see how our antitrust policies are furthered by 

saying that parties may not, in the process of merging, reach agreement to do 

that which the combined entity may freely do.” (Asahi, supra, 204 

Cal.App.4th at p. 18.) Even before a merger formally closes, “independent 

economic decisionmaking is compromised, even if not eliminated, once 

companies have formally agreed to merge.” (Id. at p. 17.) Consequently, it 

was difficult to see how premerger conduct incident to an otherwise valid 

merger agreement could violate the Cartwright Act. (Id. at pp. 17−18.)

Asahi stands for the proposition that because the Cartwright Act does 

not cover merger activity, it also does not extend to premerger activity that is 

incidental to an otherwise valid merger agreement. Ostensibly, this holding
22

leaves open the possibility of a Cartwright Act claim based on premerger 

conduct that is not incidental to a good faith agreement to merge. Finding no 

evidence of this scenario, the trial court rejected Ahn’s Cartwright Act claim 

on the merits. While Texaco and Asahi “do not address the exact 

circumstances in this case, where a merger was not actually completed,” Ahn 

had provided no evidence “of sham merger negotiations or cartel behavior.” 

In the absence of this scenario, the court concluded “the Cartwright Act does 

not apply to pre-merger activity where a merger agreement was in place.” 

As the court explained, “the Cartwright Act is not furthered where the 

entities fully intended to merge and they could have behaved as they did if 

the merger had been completed.”11

Challenging this result, Ahn sought to distinguish Asahi on factual 

grounds in his briefs. Because Fidelity and Stewart never merged, they 

remained separate independent entities before and after the alleged collusive 

behavior. Ahn noted that the proposed merger in Asahi had not been 

challenged as unlawful.12 Whereas Asahi presumed that the companies 

were acting in the economic interest of the postmerger entity, Ahn claimed 

that Stewart’s actions “were motivated by the need to preserve the individual 

interests of the company, not to further the merger.” In Ahn’s view, Stewart 

11 Reaching the same conclusion on the summary judgment motion filed 

by Fidelity and Chicago Title, the court observed that the merger agreement 

“contemplated restricting Stewart’s freedom to make independent business 

decisions” and “essentially deprived the marketplace of an independent 

decisionmaker.” In the court’s view, “the only real difference between this 

case and Asahi is the fact that the merger was not completed.” 

12 CoTherix submitted evidence that neither the United States

Department of Justice nor the FTC “challenged the acquisition as 

anticompetitive,” and Asahi disclaimed any challenge to the merger’s 

validity. (Asahi, supra, 204 Cal.App.4th at p. 17, fn. 18.)
23

“was making business decisions to maintain a future independent 

corporation.” Finally, Ahn suggested that because the merger was not 

approved by shareholders for several months after it was announced, fact

questions remained as to whether the challenged conduct even occurred 

during the “pre-merger” phase. In its respondent’s brief, Stewart claimed

Ahn’s efforts to distinguish Asahi were “unavailing” where Stewart and 

Fidelity intended in good faith to merge and worked together after the 

merger agreement was signed to advance the interests of the postmerger 

entity. 

At oral argument, Ahn substantially clarified his position. Agreeing

that the proposed merger between Stewart and Fidelity was contemplated in 

good faith, counsel conceded that he was not claiming the proposed merger 

was a sham. Counsel further agreed that had the merger been 

consummated, Ahn’s specific claim regarding collusive premerger activity 

between Stewart and Fidelity would be barred under Asahi. He confirmed 

that the sole basis on which he distinguished Asahi was on the ground that 

the merger here did not ultimately go through. In response, Stewart’s 

counsel stated that the framework proposed by Ahn would inject too much 

uncertainty into corporate affairs. It would chill routine premerger activity 

with companies left unsure whether actions taken in good faith would 

ultimately be deemed legal or illegal under the Cartwright Act. 

Accepting his counsel’s concession, we must reject Ahn’s Cartwright Act 

claim on the merits. Under Asahi, where two companies plan to merge in 

good faith, premerger activity incidental to that agreement to merge is not 

actionable under the Cartwright Act. We find no principled way to cabin 

Asahi to a scenario where a good faith merger is ultimately consummated. 

A merger might fall through for any number of reasons, and we agree with 
24

Stewart that a rule that looks to whether a merger ultimately closed injects 

uncertainty that is unmoored from the logic underlying Asahi. Accordingly, 

separate and apart from Ahn’s lack of standing, his Cartwright Act claim 

fails on the merits.

D. Ahn’s derivative tort claims fail for lack of an independent wrong.

Turning to the tort claims, the trial court relied on Ixchel, supra, 

9 Cal.5th 1130 to conclude that Ahn’s causes of action against Stewart for 

tortious interference with contract and tortious interference with prospective 

economic advantage required an independently wrongful act. Because it 

found Ahn lacked standing to sue Stewart under the Cartwright Act, the 

court concluded he could not establish this essential requirement for tort 

liability. Ahn contests this finding. He distinguishes Ixchel as a case 

concerned with protecting legitimate competition and argues a different 

standard should apply here where competition was hindered by collusive 

behavior. We are not persuaded.

Tortious interference with prospective economic advantage has long 

required proof of an independently wrongful act apart from the interference 

itself. (Ixchel, supra, 9 Cal.5th at p. 1142.) Tortious interference with 

contract, on the other hand, typically does not have that requirement. (Id. at 

p. 1141, citing Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 

26, 55.) Because interference with an at-will employment agreement is akin 

to interference with a prospective economic relationship, the Supreme Court 

recently held that both torts require proof of an independently wrongful act. 

(Ixchel, at pp. 1147−1148.) Accordingly, where a plaintiff alleges tortious 

interference with an at-will employment contract by a third party, as Ahn 

does here, he must prove that the defendant’s conduct was independently 

wrongful. (Id. at p. 1148.)
25

Because the pleadings frame the issues on summary judgment (Conroy, 

supra, 45 Cal.4th at p. 1250), we revisit the First Amended Complaint. Both 

tort claims challenge Stewart’s actions in contacting Fidelity management to 

halt Ahn’s sales practices, which in turn allegedly caused Ahn to lose sales 

and be fired. Ahn asserted that Stewart’s interference was “illegal and 

wrongful” under the Cartwright Act.13 As framed in the complaint, these 

tort claims therefore rest on an antitrust violation to show independently 

wrongful conduct. With Ahn unable to show an antitrust injury, the trial 

court correctly ruled that he likewise could not demonstrate a triable issue on 

either economic tort claim.

As Ahn suggests, Ixchel’s result is driven in part by concerns about 

chilling legitimate competition. (Ixchel, supra, 9 Cal.5th at p. 1148 

[“Allowing disappointed competitors to state claims for interference with atwill contracts without alleging independently wrongful conduct may expose 

routine and legitimate business competition to litigation.”].) But this does 

not help him. Ahn seems to suggest that Stewart’s actions served “no 

legitimate business purpose” other than to punish him. Yet he acknowledges 

Stewart’s procompetitive fear that it would lose customers due to Ahn’s sales 

tactics. Under Ahn’s reading of Ixchel, a market player could never confront 

a competitor about questionable sales tactics by the competitor’s agents 

without facing exposure to costly litigation for tortious interference with

contractual relations. (See Coast Hematology-Oncology Associates Medical 

Group, Inc. v. Long Beach Memorial Medical Center (2020) 58 Cal.App.5th 

748, 767 [courts are wary of imposing tort liability on economic rivals “based 

13 This allegation was made solely as to the tortious interference with 

prospective economic relations claim, as tortious interference with an at-will 

employment contract did not at the time require independently wrongful 

conduct. Ixchel was decided after the First Amended Complaint was filed.
26

on conduct regarded by the commercial world as both commonplace and 

appropriate”].) These are precisely the chilling effects to normal business 

operations that Ixchel sought to avoid by requiring independently wrongful 

conduct in the at-will employment context. While Ahn may prefer a different 

result, we reject his contention that the facts of this case place it “outside the 

Ixchel court’s reasoning.” 

DISPOSITION

The judgment is affirmed. Stewart is entitled to its costs on appeal.

DATO, Acting P. J.

WE CONCUR:

DO, J.

BUCHANAN, J.