Opinion
B322661 B326522
02-27-2024
ADVANCED ORTHOPEDIC CENTER, INC., Plaintiff and Appellant, v. REGAL MEDICAL GROUP, INC. et al., Defendants and Appellants.
Athene Law, Eric D. Chan and Avi W. Rutschman for Plaintiff and Appellant. Doll Amir &Eley, Michael M. Amir, Jason B. Baim and Lloyd Vu for Defendants and Appellants.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. 21SMCV01411,[*]Kevin C. Brazile, Judge. Appeal No. B322661 affirmed in part, reversed in part, and remanded with directions. Appeal No. B326522 dismissed.
Athene Law, Eric D. Chan and Avi W. Rutschman for Plaintiff and Appellant.
Doll Amir &Eley, Michael M. Amir, Jason B. Baim and Lloyd Vu for Defendants and Appellants.
WEINGART, J.
Regal Medical Group, Inc. and Lakeside Medical Organization (together, Regal) appeal from the denial of their anti-SLAPP motion to strike portions of Advanced Orthopedic Center, Inc.'s (AOC) second amended complaint (case No. B322661). Regal interacts with physicians on behalf of health insurers and was sued by AOC in small claims court over payment Regal allegedly owed to AOC for a patient's care. AOC later brought the lawsuit against Regal that underlies this appeal, which included claims for unfair competition in which AOC alleged that Regal's reimbursement to the patient was in fact a bribe to procure a false declaration from the patient for use in the small claims case.
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) For clarity, we also refer to a "SLAPP" or "anti-SLAPP" motion as "a special motion to strike"-the language used in the statute (Code Civ. Proc., § 425.16, subd. (b)(1)). All unspecified statutory references are to the Code of Civil Procedure.
The anti-SLAPP motion targeted these unfair competition allegations as well as similar declaratory relief allegations. Regal argued the patient's declaration and Regal's efforts to procure it were "statements and actions 'in furtherance of' a judicial proceeding," and therefore protected activities within the meaning of the anti-SLAPP statute. The trial court disagreed and denied the motion. It found the allegations about the declaration were merely evidence of AOC's alleged bribery and not the wrong complained of, and that the alleged bribery itself did not arise from protected activity.
As described below, we agree that the allegations concerning the declaration itself and its falsity did not form the basis of AOC's bribery allegations, and thus were not subject to a special motion to strike. However, Regal's efforts to obtain trial testimony constitute protected petitioning activity and supply the elements of the alleged wrongful conduct. Accordingly, with respect to a subset of allegations concerning the alleged bribery to obtain favorable testimony, we reverse and remand for the trial court to consider whether AOC satisfied the second prong of the anti-SLAPP analysis, namely whether AOC made a showing of minimal merit that it could prevail on its bribery claims.
AOC separately appeals the trial court's denial of its section 425.16, subdivision (c) motion for attorney fees against Regal (case No. B326522), which AOC filed after the denial of the special motion to strike. We dismiss that appeal because it arises from an interlocutory and non-appealable order.
BACKGROUND
A. Events Giving Rise to Regal's Motion to Strike
Regal is an independent physician association. Regal works with health care insurers to coordinate care for their insureds and assumes the financial risk of providing physician care services to those insureds. Jonathan Nissanoff, M.D., the principal and sole owner of AOC, offers orthopedic medical services. Dr. Nissanoff is not "in network" with Regal but provided medical services to some of Regal's members, including a patient that the parties refer to as Patient 5.
According to Dr. Nissanoff, during the evening of October 3, 2019, he examined Patient 5 for an issue relating to his foot. Dr. Nissanoff took a $500 deposit from Patient 5, had Patient 5 fill out some paperwork, and billed Regal $1,716 for his services. The paperwork Patient 5 signed in connection with receiving services included a statement that he believed his condition "was emergent in nature" such that he would have sought emergency room care if not treated by Dr. Nissanoff.
The full text of the statement provides: "I reasonably believe that the medical condition that caused me to seek medical treatment today at [AOC's dba] Orthopedic Urgent Care was emergent in nature. I would have otherwise gone to the local emergency room had I not been able to be seen in an expedited fashion by the Orthopedic Urgent Care Center and their providers. [¶] Furthermore, my medical condition manifests itself by acute symptoms of severe pain such that I believe the absence of immediate medical attention could reasonably be expected to result in placing my health in serious jeopardy, serious impairment to bodily function, or serious dysfunction of one of my body organs or part. [¶] I am over 18 years of age and declare under penalty of perjury that the above statements are true and correct."
Regal paid Dr. Nissanoff $150.33 for the services rendered to Patient 5, and in 2020, AOC filed a small claims action against Regal to obtain payment of the entire billed amount. AOC prevailed, and Regal filed an appeal seeking a trial de novo. That trial would eventually occur on March 7, 2022.
In the meantime, on October 30, 2020, Regal sued Dr. Nissanoff and AOC for violating the unfair competition law (UCL; Bus. &Prof. Code, § 17200 et seq.) and for fraud, unjust enrichment, and declaratory relief. (Regal Medical Group, Inc. v. Jonathan Nissanoff, case No. 20STCV41811.) Regal alleged, inter alia, that Dr. Nissanoff billed for emergency services when there was no emergency.
On August 24, 2021, AOC filed a separate lawsuit (the one that would eventually underlie this appeal) against Regal for quantum meruit and breach of implied contract. AOC alleged that as an out of network provider, it did not receive benefits, such as referrals, from Regal. Thus, it was entitled to receive payment based on its total billed charges, which represented the usual, customary, and reasonable amount charged by similar providers rendering similar treatment in the same or similar geographic areas. The superior court consolidated the two actions.
According to the declaration of Regal's vice president of legal affairs, Mary Coash, Regal had "a strict policy against . . . collecting money from the patient that is above the patient's financial responsibility." Accordingly, on January 24, 2022, she spoke with Patient 5 and, "[o]ut of concern for the Regal-enrollee relationship," told Patient 5 that Regal would reimburse him for Dr. Nissanoff's $500 charge. She declares she did not tell Patient 5 that the reimbursement was conditional on his providing testimony. A check for $500 was issued to Patient 5 on February 3, 2022.
According to the declaration from Regal's attorney, on February 9, 2022, he spoke with Patient 5 by telephone "to discuss Patient 5's experience with Dr. Nissanoff in connection with the then-upcoming [s]mall [c]laims [a]ppeal trial [de novo]." Counsel asked whether Patient 5 would testify regarding this experience, and Patient 5 agreed to do so in the form of a declaration. On February 11, 2022, Regal's counsel sent a draft declaration to Patient 5 by email. The email stated that Regal had not known that Dr. Nissanoff had charged Patient 5 $500 until they had spoken to him and that Regal was reimbursing Patient 5 for payment "because [Patient 5 was] not responsible for such a payment. However, as [Regal's counsel] said yesterday, the statements in the declaration should in no way be impacted by the reimbursement check. [Patient 5 was] entitled to the check, with or without [his] assistance." (Emphasis omitted.)
Patient 5's declaration, signed on February 23, 2022, stated that in 2017, he began experiencing pain in his left foot. In March 2019, the pain increased; in September 2019, he saw his primary care physician. Patient 5's physician did not tell him that his condition was an emergency and referred him to an orthopedic specialist for further treatment. Because Patient 5 wanted an earlier appointment than the in-network specialists could provide, he scheduled an appointment with Dr. Nissanoff's office for 5:00 p.m. on October 3, 2019. "[He] did not go to the emergency room at that time because [he] did not think it was a true 'emergency' and did not want to wait too long in a hospital emergency room." Patient 5 provided his insurance information and was advised that prior to any examination, he had to pay $500. He paid the fee. Dr. Nissanoff examined Patient 5 and told him that he needed immediate surgery, which would cost $7,200. Patient 5 did not pursue surgery with Dr. Nissanoff.
During the trial de novo, Regal's counsel disclosed the $500 payment to Patient 5 and explained the payment was reimbursement for the fee Dr. Nissanoff had taken from Patient 5. The trial court entered judgment in the amount of $1,716 in AOC's favor but also ordered AOC to refund $500 to Patient 5.
On May 9, 2022, AOC filed a second amended complaint (Complaint) in its lawsuit against Regal, adding causes of action under the UCL and for declaratory relief, which were based, in part, on Regal's alleged bribery of Patient 5 under California's bribery statute (Pen. Code, § 137) and the federal anti-gratuity statute (18 U.S.C. § 201(c)(2)).
Approximately two weeks after Regal filed its special motion to strike, AOC filed a notice of errata. AOC stated references to Penal Code section 641.3 in the Complaint were incorrect and should have been to Penal Code section 137. Further, its single reference to 18 U.S.C. section 102(b) was incorrect and should have been 18 U.S.C. section 201(c), which AOC had referred to in other parts of its Complaint. Regal objected to the errata and argued that a party could not amend a pleading in response to a special motion to strike. On appeal, Regal observes in a footnote that the trial court "accepted AOC's amended 'errata' pleading despite Regal's objection based on well-settled law that a party may not amend its pleading in response to an anti-SLAPP motion." Regal does not offer further argument on this "well-settled law," which is more nuanced than Regal suggests. (See, e.g., Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 628-629 [affirming anti-SLAPP order granting leave to amend where the defendant failed to show challenged claim arose from protected activity]; Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 865-866 [granting special motion to strike and leave to amend because the plaintiff adduced evidence establishing a probability of prevailing on her defamation claim, but had not pleaded the requisite actual malice].) Because Regal does not provide cogent argument on the issue, we deem it forfeited. (See Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) We accordingly quote the Complaint as modified by the notice of errata.
B. Regal's Special Motion to Strike
On June 20, 2022, Regal moved to strike allegations related to the bribery charges and Patient 5's declaration from the Complaint. Regal argued events described in the Complaint's paragraphs 11, 88 to 95, 115(f)-(h), and 118 to 119, and 4(e) of the fourth cause of action for declaratory relief arose from protected activity because Patient 5's declaration and Regal's efforts to obtain it occurred in connection with and in furtherance of judicial proceedings. The challenged paragraphs state:
"11. [Regal's] unlawful and unfair competition also includes blatant efforts to bribe AOC's patients, including . . . 'Patient 5,' by paying them money directly. For instance, [Regal] directly paid Patient 5 at least $500 in gratuitous compensation despite the lack of any legitimate health care or business justification for doing so. In exchange for this illegal payment, [Regal] persuaded Patient 5 to sign a declaration, drafted entirely by [Regal] or their attorneys, containing outright misrepresentations and falsehoods about AOC's business practices. [Regal's] practice of paying members in exchange for testimony favorable to [Regal's] own interests is illegal under both state and federal law."
"88.... Regal had paid $500 in cash directly to one of its own enrollees, known as Patient 5, more than two years after Patient 5 received emergent and/or urgent services from AOC....
"89. AOC is informed and believes that [Regal] did not have any legitimate health care or business reason to pay $500 directly to the patient years after medical services were rendered by AOC. Indeed, on information and belief, Patient 5 had health insurance coverage that did not require him to personally pay for health care services....
"90. [Regal] justif[ies] this illegal payment by saying they had to reimburse the patient for a $500 deposit taken by AOC at the time of service. However, the money deposited by AOC was just that-a deposit. Like many businesses, AOC holds deposits to help cover various contingencies .... AOC has now obtained an order from th[e superior c]ourt in a separate action requiring [Regal] to pay AOC in full for the emergent medical services that AOC provided to Patient 5. AOC has either already returned the $500 deposit to the [sic] Patient 5, or will return it in the very near future. The return of the deposit-which was expected and AOC's normal business practice with respect to unused deposits-serves to further underscore the lack of justification for [Regal's] gratuitous $500 payment to Patient 5.
"91. AOC is informed and believes that [Regal] paid $500 to Patient 5 at least in part in order to influence Patient 5's testimony in AOC's lawsuit against Regal. Around the same time as their payment to Patient 5, [Regal] did, in fact obtain a written declaration, drafted wholly by [Regal's] counsel, that made multiple outright misrepresentations with respect to AOC's business practices and contained skewed and inaccurate testimony favoring [Regal].
"92. The declaration [Regal] obtained in exchange for payment falsely attests to numerous facts and circumstances that [Regal] wanted Patient 5 to testify to, but which are simply not true. For instance, the declaration gets wrong numerous basic facts about AOC's business practices and processes.... [Regal] . . . paid Patient 5 and obtained a false and inaccurate declaration.
"93. AOC is in [sic] informed and believes that [Regal] presented Patient 5 with a declaration to sign without fully verifying the underlying facts....
"94. On information and belief, the payment by [Regal] constitutes bribery under California law and is punishable as a felony. [(]. . . Pen[.] Code[,] § [137].[)] On information and belief, the payment also constitutes bribery under the federal anti[-]gratuity statute. [(]18 U.SC. § 201(c).[)]
"95. It is highly likely that [Regal's] illegal payment to Patient 5 is merely part of a larger pattern and practice of paying their own enrollees and members in order to influence their testimony against AOC-as part of [Regal's] efforts to avoid paying the reasonable and customary value of AOC's services. Further discovery will be needed to ascertain the true scope of [Regal's] unlawful scheme to make unsolicited payments to their own patients."
"115. [Regal] ha[s] repeatedly engaged in unfair and unlawful business practices within the meaning of Business [and] Professions Code [section] 17200 et seq.... including but not limited to: [¶] . . . [¶] (f) Issuing payments directly to patients, including but not limited to Patient 5, without any legitimate health care or business reason; [¶] (g) Violation of Penal Code [section 137], which prohibits the offering or solicitation of a bribe of $250 or more with corrupt intent, in exchange for the recipient using his or her position to convey a benefit on the other person; [¶] (h) Violation of the federal anti[-]gratuity statute, 18 U.S.C. [section] 201(c)(2), which prohibits the payment of anything of value to any person, for or because of that person's testimony under oath as a witness upon a trial, hearing, or other proceeding, before any court."
"118. In order to remedy these unfair and unlawful violations, AOC seeks restitution and disgorgement of the amounts wrongfully withheld by [Regal], to be determined at trial.
"119. AOC also seeks an order enjoining [Regal] from making illegal patients to their own members and insureds."
"[Cause of Action for Declaratory Relief] [¶] . . . [¶] 4. Accordingly, AOC seeks declaratory relief to clarify the parties' rights and obligations going forward, including with respect to the following: [¶] . . . [¶] (e) Whether [Regal] violate[d] Penal Code [s]ection [137] and/or 18 U.S.C. [section 201(c)(2)] by paying money directly to their own members and enrollees."
In opposition, AOC cited Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park) for the proposition that "a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted." (Id. at p. 1060.) AOC argued the elements of the state bribery and federal anti-gratuity statutes are the tendering of payment with the intent to influence a witness's testimony and did not include the actual procurement of such testimony. Thus, it argued, its bribery allegations did not implicate protected activity.
As to a showing of minimal merit if the court found protected activity, AOC submitted the declaration of Heidi Granda, who handled patient intake, billing, and appeals for insurance reimbursement claims for AOC. She declared that in her 25 years in the health care billing industry she had never seen a health care payor send money directly to a patient when it was not a payment for care provided. Dr. Nissanoff similarly declared that he has been an expert reviewer for the Medical Board of California for almost 20 years and "ha[s] never seen a health care payor send money directly to a patient when it was not payment for [health] care provided."
C. The Trial Court's Ruling
On August 2, 2022, the trial court denied Regal's anti-SLAPP motion because bribery under Penal Code section 137 and 18 U.S.C. section 201(c)(2) did not require the procurement of false testimony, but only payment and "corresponding intent." The trial court thus concluded AOC's allegations of false testimony "merely serv[ed] as evidence of liability," not the wrong complained of, which the court found was the illegal payment. Because Regal failed to meet the first prong of the anti-SLAPP analysis, the trial court did not consider the second prong.
Regal filed a timely notice of appeal.
D. Motion for Attorney Fees
On August 29, 2022, AOC moved for an order granting it attorney fees in the amount of $42,128.20 pursuant to sections 128.5 and 425.16. On September 26, 2022, the trial court denied AOC's motion because it could not find the anti-SLAPP motion was frivolous or solely intended to cause delay; rather, the motion advanced a legitimate argument.
AOC filed a timely notice of cross-appeal.
DISCUSSION
A. General Legal Principles and Standard of Review
The Legislature enacted section 425.16 to "combat lawsuits designed to chill the exercise of free speech and petition rights." (Park, supra, 2 Cal.5th at p. 1060.) To that end, the anti-SLAPP statute provides that "cause[s] of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
When considering whether to strike a claim, courts undertake a two-prong analysis. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) A "plaintiff's second-step burden is a limited one. The plaintiff need not prove her case to the court [citation]; the bar sits lower, at a demonstration of 'minimal merit' [citation]. At this stage,' "[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law."' [Citations.]" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.) We review de novo the trial court's grant or denial of a special motion to strike under the anti-SLAPP statute. (Park, supra, 2 Cal.5th at p. 1067.)
B. Regal Demonstrated that a Portion of the Challenged Allegations Arose from Protected Activity
Regal's special motion to strike challenged AOC's allegations relating to three purported unfair and unlawful business practices. Those alleged practices are (1) Regal's issuance of payments directly to AOC's patients without any legitimate reason; (2) Regal violating Penal Code section 137, which prohibits bribing a witness with the intent to influence testimony; and (3) Regal violating 18 U.S.C. section 201(c)(2), which prohibits giving or offering something of value to a person for or because of testimony.
Regal also challenged AOC's claim for declaratory relief, which sought a determination of whether Regal violated Penal Code section 137 and 18 U.S.C. section 201(c)(2). For purposes of our analysis, AOC's declaratory relief claim is the same as the alleged second and third unfair and unlawful business practices referred to above, and we therefore do not separately discuss the declaratory relief claim.
1. Payment of Money Without a Legitimate Reason Standing Alone Is Not Protected Activity
As to the first alleged unfair business practice, simply giving money to someone without any reason, standing alone, does not implicate protected activity. (See, e.g., Greco v. Greco (2016) 2 Cal.App.5th 810, 821 [finding claims based on wrongful transfer of trust and estate funds did not arise from protected activity].) Nor does Regal explain how it could be protected activity under section 425.16, subdivision (e). Thus, the trial court did not err in denying the motion to strike this allegation, stated in paragraph 115(f) of the Complaint.
2. Elements to Prove Violations of Penal Code Section 137 and 18 U.S.C. Section 201(c)(2)
The main thrust of AOC's allegations is that Regal engaged in unfair and unlawful business practices by bribing Patient 5 within the meaning of Penal Code section 137 and 18 U.S.C. section 201(c)(2). Thus, we first discuss the elements necessary to prove violations of these statutes.
Penal Code section 137, subdivision (a) states: "Every person who gives or offers, or promises to give, to any witness, person about to be called as a witness, or person about to give material information pertaining to a crime to a law enforcement official, any bribe, upon any understanding or agreement that the testimony of such witness or information given by such person shall be thereby influenced is guilty of a felony." In interpreting the language "upon any understanding or agreement" (ibid.), our Supreme Court has held "a bilateral agreement is not a necessary element of the crime of offering a bribe." (People v. Pic'l (1982) 31 Cal.3d 731, 739.) "Rather, the language means that bribery must be proposed by the person offering to give or to receive the bribe, as the case may be, with the criminal intent that a corrupt act will be committed by the one accepting the bribe; if the offender has that intent, the fact that the other party does not subjectively intend to perform is irrelevant. [¶] . . . [T]he intent of the Legislature in specifying a bribe sought 'upon any understanding' [citation] was to punish bribery in which one party proposes a corrupt act by the other." (Id. at p. 738.) "It is sufficient if the defendant offers the bribe with the intent of persuading the witness ...." (Id. at p. 739.)
Thus, the elements of a Penal Code section 137 violation include giving or offering a bribe with the intent to influence testimony. As to the first element, Pic'l did not interpret the statute to require only the offering or giving of something of value but required that "bribery must be proposed." (People v. Pic'l, supra, 31 Cal.3d at p. 738.) In other words, the briber must indicate to the putative receiver that the thing of value is being offered to persuade the receiver to unlawfully influence the receiver's testimony. Indeed, the pattern jury instruction for this offense requires such a showing. (See CALCRIM No. 2610 ["Offering a bribe [under Pen. Code, § 137, subd. (a)] does not require specific words or behavior, as long as the language used and the circumstances clearly show an intent to bribe"].)
AOC further alleges Regal's conduct was unfair and/or unlawful under 18 U.S.C. section 201(c)(2). As relevant here, that section states, "Whoever . . . [¶] . . . [¶] directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . [¶] . . . [¶] shall be" guilty of a felony offense. (18 U.S.C. § 201(c)(2), italics added.)
Neither the Complaint nor the errata to it cite any other subdivision of 18 U.S.C. section 201. Accordingly, we limit our anti-SLAPP analysis to 18 U.S.C. section 201(c)(2).
Regal perfunctorily argues that 18 U.S.C. section 201(c)(2) is "of questionable relevance" because it pertains to bribery of "public officials and witnesses." (Bold and italics omitted.) We fail to follow this argument, as Regal's statement concedes that the plain language of subdivision (c)(2) of 18 U.S.C. section 201 applies to witnesses like Patient 5 who are not public officials. (See, e.g., Rajaratnam v. Motley Rice, LLC (E.D.N.Y. 2020) 449 F.Supp.3d 45, 77 [evaluating law firm's payments to witness in civil suit under 18 U.S.C. § 201(c)(2)]; Shuttlesworth v. Housing Opportunities Made Equal (S.D.Ohio 1994) 873 F.Supp. 1069, 1078 [noting that 18 U.S.C. § 201(c)(2) "proscribes bribery of public officials and witnesses," and finding sufficient allegations that the defendants offered rent and other incentives to induce tenants to make false allegations against their landlord].)
In United States v. Sun-Diamond Growers of California (1999) 526 U.S. 398 (Sun-Diamond Growers), the United States Supreme Court considered whether a parallel provision of the illegal gratuity statute-18 U.S.C. section 201(c)(1)(A), which prohibits giving anything of value to a public official "for or because of any official act performed or to be performed"- required any showing beyond the fact that the gratuity was given because of the recipient's official position. (Sun-Diamond Growers, supra, at p. 400.) The court first explained that subsections (b) and (c) of 18 U.S.C. section 201 set forth two separate crimes "with two different sets of elements." (SunDiamond Growers, supra, at p. 404.) The set of crimes described under subsection (b) of 18 U.S.C. section 201 concern bribery. (Sun-Diamond Growers, supra, at p. 404.) The second set of crimes described under subsection (c) of 18 U.S.C. section 201 concern "illegal gratuity." (Sun-Diamond Growers, supra, at p. 404.) "The distinguishing feature of each crime is its intent element. Bribery requires intent 'to influence' an official act or 'to be influenced' in an official act, while illegal gratuity requires only that the gratuity be given or accepted 'for or because of' an official act. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken." (Id. at pp. 404405.) It is not enough, however, that something of value was given to someone in an official position. The court held that "in order to establish a violation of 18 U.S.C. [section] 201(c)(1)(A), the [g]overnment must prove a link between a thing of value conferred upon a public official and a specific 'official act' for or because of which it was given." (Id. at p. 414.) Notably, although there must be "a 'connection between [the defendant's] intent and a specific official act'" (U.S. v. Project on Government Oversight (D.C. Cir. 2010) 616 F.3d 544, 550, quoting Sun-Diamond Growers, supra, at p. 405), the court did not require proof that the hoped for official act came to fruition. (See generally SunDiamond Growers, supra, 526 U.S. 398.) Thus, the" 'for or because of'" element can be met "even where the compensation has had no influence." (Valdes v. U.S. (D.C. Cir. 2007) 475 F.3d 1319, 1322, 1327.)
Applying that holding to the parallel language in 18 U.S.C. section 201(c)(2) and the allegations here, the elements of a violation of 18 U.S.C. section 201(c)(2) are the giving of a specific thing of value to Patient 5 for testimony in the small claims proceeding or because of testimony given in that proceeding. (See 9th Cir. Model Crim. Jury Instr. § 10.8 (2019).) Further, AOC must demonstrate not just payment to Patient 5, but a linkage between the $500 given to Patient 5 and the specific testimony for which that $500 was given. (Sun-Diamond Growers, supra, 526 U.S. at p. 414.)
3. Allegations Regarding Patient 5's Declaration Are Not Subject to a Motion to Strike
As actual procurement of testimony is not a necessary element to state a violation of either Penal Code section 137 or 18 U.S.C. section 201(c)(2), we agree with the trial court that allegations relating to Patient 5's declaration itself and its falsity are merely evidence of Regal's alleged violation of these statutes and not the wrong itself. (Park, supra, 2 Cal.5th at p. 1060 ["a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted"]; Baral v. Schnitt, supra, 1 Cal.5th at p. 394 ["Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute"].)
The challenged portions of the Complaint that describe the declaration, its falsity, or otherwise merely provide similar context or evidence of AOC's bribery allegations (i.e., that do not describe protected conduct) are as follows: paragraph 11 at line 9 ("despite the lack of any legitimate health care or business justification for doing so"), paragraph 11 at lines 10-12 ("drafted entirely by Defendants or their attorneys, containing outright misrepresentations and falsehoods about AOC's business practices"), paragraph 89 in its entirety, paragraph 90 in its entirety, the second sentence of paragraph 91 ("Around the same time as their payment to Patient 5, Defendants did, in fact obtain a written declaration, drafted wholly by Defendants' counsel, that made multiple outright misrepresentations with respect to AOC's business practices and contained skewed and inaccurate testimony favoring Defendants"), paragraph 92 in its entirety, paragraph 93 in its entirety, and the entirety of subparagraph (f) in paragraph 115. None of these portions of the Complaint was subject to a special motion to strike. (Park, supra, 2 Cal.5th at p. 1060.)
4. Regal's Efforts to Procure Patient 5's Testimony Constitute Protected Litigation Activity
Regal also argues that its efforts to procure Patient 5's testimony, i.e., its alleged bribery of Patient 5, are protected activity. We agree.
Section 425.16, subdivision (e), subsections (1) and (2), define protected conduct to include statements made before a judicial proceeding or in connection with an issue under consideration by a judicial body. "The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation. [Citation.]" (Kolar v. Donahue, McIntosh &Hammerton (2006) 145 Cal.App.4th 1532, 1537.) Section 425.16, subdivision (a) provides the anti-SLAPP statute "shall be construed broadly," and in keeping with that mandate, "courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.'" (Kolar v. Donahue, McIntosh &Hammerton, supra, at p. 1537.)
Acts undertaken to obtain or shape witness testimony are protected activity. For example, in Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, the plaintiff sued a criminal defense attorney and investigators he hired for abuse of process and intentional and negligent infliction of emotional distress based on an allegedly false proof of service and declaration used to obtain a bench warrant to compel her appearance and testimony in a criminal trial. (Id. at p. 1016.) The appellate court concluded the attorney's and investigators' conduct was not unlawful as a matter of law and that "[the plaintiff's] causes of action arose from [the defendants'] exercise of constitutionally protected conduct in a judicial proceeding." (Id. at p. 1018.)
Conduct which is criminal as a matter of law is not protected under the anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299.) For a claim of illegality to defeat an anti-SLAPP motion, however, the defendant must either concede the illegality or the evidence must conclusively demonstrate illegality as a matter of law. (Id. at p. 320.) AOC does not argue that Regal's conduct falls within this exception, and therefore we do not address it further.
In Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, a medical clinic sued a real estate partnership in which it was a limited partner for an accounting. During the lawsuit, the clinic's founder purportedly conspired with the partnership's administrator to give false deposition testimony. (Id. at pp. 1543, 1548.) The clinic later sued its founder for breach of fiduciary duty based, in part, on this alleged collusion. (Id. at p. 1545.) The court held the anti-SLAPP statute applied because the alleged conspiratorial statements "about how to testify in upcoming depositions in a pending lawsuit" were "made in connection with an issue under consideration by a judicial body." (Id. at p. 1548.)
Notably, Haight Ashbury Free Clinics, Inc. explained "section 425.16, subdivision (a) does not limit the SLAPP scheme to activity that itself constitutes a 'valid exercise' of the constitutional right of free speech or petition. Section 425.16, subdivision (a) reads in pertinent part: 'The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' . . . In order to curb such lawsuits and their chilling effect, the Legislature has required early scrutiny of causes of action arising from activity identified in section 425.16, subdivision (e)." (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, supra, 184 Cal.App.4th at p. 1549; see also Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 762 [" '[C]onduct that would otherwise be protected by the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful. [Citation.] If that were the test, the anti-SLAPP statute would be meaningless.' [Citation.]"].)
In Kemps and Haight Ashbury Free Clinics, Inc., the alleged falsified affidavits and the conspiratorial statements concerning how to testify, respectively, fulfilled the communicative conduct element, i.e., "any written or oral statement or writing" required in section 425.16, subdivision (e)(1) and (e)(2). Here, the Complaint alleges communication between Regal to Patient 5, but omits the specifics of such communication, instead generally alleging that, "In exchange for th[e] illegal payment, [Regal] persuaded Patient 5 to sign a declaration." However, a plaintiff may not avoid the protections of the anti-SLAPP statute through artful pleading that omits the speech or petitioning element. (See Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164.) Regal cannot have "persuaded" Patient 5 without communicative conduct. (C.f., Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 20 ["[The plaintiff] contends strenuously that [the defendant's] activities in recruiting and encouraging his agents are 'noncommunicative.' We are at a loss to imagine how [the defendant] accomplished the recruiting and encouragement without communication"].)
Further, as discussed ante, the elements of the alleged criminal violations require communicative conduct. Penal Code section 137, subdivision (a) requires AOC to demonstrate Regal proposed bribery with the intent to influence testimony-that is, Regal must have communicated in some form or another that it was attempting to influence Patient 5's testimony. Although similar communicative conduct regarding the intent to influence is not necessary to state a violation of 18 U.S.C. section 201(c)(2), AOC must still demonstrate linkage between the payment given to Patient 5 and the specific testimony for or because of which that payment was given. (See Sun-Diamond Growers, supra, 526 U.S. at p. 414.) AOC alleges that Regal "persuaded" Patient 5 to testify through the payment, and courts have held such payments in connection with prosecuting an action to be protected conduct. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [" 'Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action"]; Takhar v. People ex rel. Feather River Air Quality Management Dist. (2018) 27 Cal.App.5th 15, 28 ["the expenditure of funds to initiate and prosecute [an] action amount to protected petitioning activity"].)
AOC observes that Regal waited until its reply brief to argue that its payment to Patient 5 constitutes communicative conduct. A party ordinarily forfeits arguments made for the first time on reply. (See Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1064, fn. 2.) However, here, AOC provided a sur-reply that addressed Regal's argument and therefore has not been deprived of an opportunity to respond. (See Jameson v. Desta (2009) 179 Cal.App.4th 672, 674, fn.1 [exercising discretion to consider issue raised in reply brief where the respondent fully briefed the issue].) AOC asserts only payments made for activities that are" 'normally and reasonably part of effective litigation'" can be communicative conduct for anti-SLAPP purposes. This argument relies on authorities discussing pre-litigation activity, which is subject to a distinct test. For example, in Takhar v. People ex rel. Feather River Air Quality Management Dist., supra, 27 Cal.App.5th 15, the appellate court did not apply any such limitation to the expenditure of funds once litigation commenced. (Id. at p. 28.) It analyzed whether an activity was "normally and reasonably part of effective litigation" only as part of its analysis of pre-litigation activities (id. at pp. 28-29) because such activities must reasonably relate to a claim that could ripen into legitimate litigation to be protected under the right of petition. (Ibid., citing Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1068.)
AOC argues its Complaint "targets Regal's improper payment, not its procurement of testimony." This artificial distinction fails to acknowledge the reality of what AOC alleges occurred and what the criminal statutes at issue require. The challenged allegations and theory of liability do not involve payment standing alone; they instead target Regal's communication with Patient 5 by which Regal persuaded him to provide his testimony. The allegations at issue state, and require as elements to establish liability, payment with the intent of procuring favorable testimony coupled with Regal having indicated to Patient 5 that payment was offered to influence his testimony. Because efforts to obtain and shape testimony are protected activities, even if they are alleged to have been conducted wrongfully (see Haight Ashbury Free Clinics, Inc. v. Happening House Ventures, supra, 184 Cal.App.4th at p. 1548; Kemps v. Beshwate, supra, 180 Cal.App.4th at p. 1018), protected activity forms the basis for the bribery and anti-gratuity claims. AOC cannot omit that protected activity and still state a claim under either Penal Code section 137 or 18 U.S.C. section 201(c)(2). The subject allegations are therefore subject to a special motion to strike. (Park, supra, 2 Cal.5th at pp. 10621063.)
Accordingly, the following allegations of the Complaint arise from activity protected by section 425.16: paragraph 11 at lines 6 to 8 ("Defendants' unlawful and unfair competition also includes blatant efforts to bribe AOC's patients, including one who will be referred to as 'Patient 5,' by paying them money directly. For instance, Defendant directly paid Patient 5 at least $500 in gratuitous compensation"), paragraph 11 at lines 9 to 10 ("In exchange for this illegal payment, Defendants persuaded Patient 5 to sign a declaration"), paragraph 11 at lines 12 to 13 ("Defendants' practice of paying members in exchange for testimony favorable to Defendants' own interests is illegal under both state and federal law"), paragraph 88, the first sentence of paragraph 91, paragraphs 94 and 95, subparagraphs 115(g) and (h), paragraphs 118 and 119, and subparagraph 4(e) of AOC's declaratory relief cause of action.
C. Probability of Prevailing on the Merits
When we find a trial court has erred in denying an anti-SLAPP motion on the first prong, "we may remand the matter to the trial court to conduct the second-prong analysis. [Citation.] On the other hand, we have discretion to decide the issue ourselves, since it is subject to independent review. [Citation.]" (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1195, disapproved on other grounds in Baral v. Schnitt, supra, 1 Cal.5th at p. 396, fn. 11.) Absent some sort of exigency, "[t]he majority of appellate courts" have not addressed the second prong in the first instance "either because contested evidentiary issues existed or simply because it was appropriate for the trial court to decide the issue first." (Collier v. Harris (2015) 240 Cal.App.4th 41, 58 [collecting cases].)
We likewise think it appropriate here to remand the matter for further proceedings in the trial court especially given numerous and not yet addressed evidentiary objections raised below.
D. We Lack Jurisdiction to Hear AOC's Appeal from the Order Denying Its Attorney Fees Request
After the trial court denied the special motion to strike, AOC filed a motion for attorney fees pursuant to section 425.16, subdivision (c)(1). The trial court denied the motion, and AOC appealed. We dismiss that appeal because it arises from an interlocutory and non-appealable order.
" 'Appellate courts have jurisdiction over a direct appeal . . . only where there is an appealable order or judgment.' (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1342 ....) Whether an order or judgment is appealable 'is wholly statutory.' (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 ....) Unless an order is expressly made appealable by a statute, this court has no jurisdiction to consider it. (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1226 ....)" (Levinson Arshonsky &Kurtz LLP v. Kim (2019) 35 Cal.App.5th 896, 903.) "The general list of appealable civil judgments and orders is codified in section 904.1." (Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th 1016, 1021, fn. omitted.) Section 904.1, subdivision (a)(13) permits an appeal "[f]rom an order granting or denying a special motion to strike under [s]ection[ ] 425.16 ...." Section 425.16, subdivision (i) similarly provides that "An order granting or denying a special motion to strike shall be appealable under [s]ection 904.1."
When, as was the case here, the attorney fees issue is decided separately from the special motion to strike, we lack jurisdiction to hear an interlocutory appeal of that attorney fees order. (E.g., Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 632 ["even if a party files a separate notice of appeal from a court's order denying [§ 425.16, subd. (c)] attorney fees, the reviewing court would not have jurisdiction to consider the matter until and unless the party filed a notice of appeal from a final appealable judgment"]; Doe v. Luster (2006) 145 Cal.App.4th 139, 150 ["If the motion for fees under [§] 425.16, [subd.] (c), is filed after the trial court rules on the special motion to strike . . . the order awarding or denying those fees is not an 'order granting or denying a special motion to strike'; and no plausible argument can be made that such an order is immediately appealable under [§] 425.16, [subd.] (i)"].) We recognize our conclusion that AOC's complaint alleged protected activity may render AOC's motion for attorney fees moot. In any case, AOC must await a final, appealable judgment to seek appellate review of the court's attorney fees ruling on the anti-SLAPP motion.
DISPOSITION
With regard to appeal No. B322661, the trial court's order denying Regal's motion to strike pursuant to section 425.16 is affirmed as to the portions of the Complaint at paragraph 11 that state, "despite the lack of any legitimate health care or business justification for doing so" and "drafted entirely by Defendants or their attorneys, containing outright misrepresentations and falsehoods about AOC's business practices"; paragraph 89 in its entirety; paragraph 90 in its entirety; the second sentence of paragraph 91, which states, "Around the same time as their payment to Patient 5, Defendants did, in fact obtain a written declaration, drafted wholly by Defendants' counsel, that made multiple outright misrepresentations with respect to AOC's business practices and contained skewed and inaccurate testimony favoring Defendants"; paragraph 92 in its entirety; paragraph 93 in its entirety; and subparagraph 115(f) in that subparagraph's entirety.
As to the remainder of paragraph 11, paragraph 88, the first sentence of paragraph 91, paragraphs 94, 95, 115(g) and (h), 118, 119, and subparagraph 4(e) of AOC's declaratory relief cause of action, the order denying Regal's motion to strike is reversed and the matter is remanded to the trial court with directions to determine whether AOC met its burden of demonstrating a reasonable probability of prevailing on the merits of its claims at trial. Each party is to bear its own costs on appeal.
Appeal No. B326522 is dismissed, and with regard to that matter only Regal is awarded its costs on appeal.
We concur: CHANEY, J., BENDIX, Acting P.J.
[*] In the trial court, Los Angeles County Superior Court No. 21SMCV01411 was consolidated with No. 20STCV41811 (Regal Medical Group, Inc., v. Jonathan Nissanoff), but there was no appeal of the No. 20STCV41811 matter.