Wednesday, July 17, 2019
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Court of Appeal:
Voters’ Fraud Action Against Jarvis Association Must Be Stricken
Opinion Says Plaintiffs Cannot Show Probability of Prevailing on the Merits in Action in Which They Claim They Were Tricked Into Signing Petitions for Recall of State Senator
By a MetNews Staff Writer
The Los Angeles Superior Court was directed yesterday to grant an anti-SLAPP motion filed by the Howard Jarvis Taxpayers Association in an action accusing it of fraudulently inducing voters to sign a petition for the recall of a state senator by telling them the object was to repeal the gas tax.
Court of Appeal Presiding Justice Lee Edmon of Div. Four wrote the opinion, which was not certified for publication. It reverses an order by Judge Howard L. Halm, who found that “the fact that Plaintiffs failed to read the recall petition does not preclude, as a matter of law, their ability to prove justifiable reliance.”
Edmon’s opinion declares that the motion should have been granted because the voters who claim they were duped into signing the recall petition failed to show that the alleged tricksters were agents of Jarvis.
Newman Recalled
Jarvis was sued along with the California Republican Party and National Petition Management, Inc. (“NPM”), a signature-collecting outfit. They orchestrated the effort which resulted in the June 5, 2018 recall of state Sen. Josh Newman, D-Fullerton.
The object was to end the Democratic Party’s super-majority in California—which was realized with the election of Republican Ling Chang as Newman’s successor. A super-majority enabled the Democratic Party to boost taxes without having to muster a single Republican vote.
The issue used against Newman was that he voted with fellow Democrats and one Republican to boost the tax on gas by 12 cents per gallon (20 cents per gallon for diesel fuel) and to increase vehicle fees.
Only Jarvis was a party to the appeal of Halm’s denial of an anti-SLAPP motion.
Second Prong
It was undisputed that the first prong of the anti-SLAPP statute—protected activity—was satisfied, and the issue was whether the plaintiff could show a probability of prevailing on the merits, as required under the second prong to avoid the granting of a special motion to strike. Edmon said the plaintiffs failed to make that showing.
She wrote:
“[I]n opposing the special motion to strike, there was an utter failure by Plaintiffs to make out a prima facie case against Jarvis. Plaintiffs lacked evidence as to the identity of the individuals who obtained Plaintiffs’ signatures, Plaintiffs had no evidence to support their theory that the signature gatherers were employees of NPM who were acting as agents of Jarvis, and no evidence to establish that any of the signature gatherers was anything other than an unpaid campaign volunteer. Plaintiffs simply sought to impute the statements of the individual signature gatherers to Jarvis, without showing that Jarvis was their principal.”
Summers v. Tice
The plaintiffs argued that they did not need to show that the persons who induced them to sign the petition were agents of Jarvis because the three defendants acted in concert. They cited the 1948 California Supreme Court case of Summers v. Tice.
In that case, encountered by first year law students in casebooks, two hunters fired, negligently, in the direction of the plaintiff; one hit him; it wasn’t known which fired the bullet causing his injury. The court held:
“When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers—both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can.”
The decision in Summers affirmed a Los Angeles Superior Court judgment against both defendants.
Decision Doesn’t Apply
That case, Edmon said, has no applicability to the action against Jarvis, explaining:
“Among other things, Plaintiffs did not make a prima facie showing that Jarvis was a wrongdoer that acted in concert with other wrongdoers in the action. Additionally, Plaintiffs cite no authority for the proposition that the Summers analysis applies to a cause of action for fraud. As such, the Summers rule is unavailing to Plaintiffs.”
She added:
“In sum, Plaintiffs failed to make a prima facie showing that the individuals who obtained their signatures on the alleged recall petitions were agents of Jarvis, as opposed to agents of another entity, independent contractors, or unpaid volunteers who were working on the recall campaign. Thus, Plaintiffs failed to present facts which, if credited by a trier of fact…would entitle Plaintiffs to a judgment against Jarvis on their cause of action for fraud.”
The case is Louise v. Howard Jarvis Taxpayers Assn., B289148.
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