Wednesday, January 30, 2019
By a MetNews Staff Writer
Div. Two of the First District Court of Appeal yesterday indicated its impatience with meritless appeals from the denial of anti-SLAPP motions, affirming such a denial in the case of a medical marijuana collective that lost its permit through the alleged anti-competitive conduct of rival outfits in the City of Richmond, near San Francisco.
Justice James Richman began his opinion, which was not certified for publication, by quoting from his 2014 opinion in Moriarty v. Laramar Management Corp., which begins:
“Another appeal in an anti-SLAPP ease. Another appeal by a defendant whose anti-SLAPP motion failed below. Another appeal that, assuming it has no merit, will result in an inordinate delay of the plaintiffs case and cause him to incur more unnecessary attorney fees….And no merit it has.”
Richman noted in yesterday’s opinion that “Moriarty has been cited and quoted many times since 2014, in both published and unpublished opinions.”
‘Another Such Appeal’
He commented, with respect to the appeal at hand:
“Here is yet another such appeal. And we again affirm.”
The plaintiff in the pending Contra Costa Superior Court action is Richmond Compassionate Care Collective (“RCCC”), stripped of its permit to operate in the city following an alleged concerted action by competitors, including 7 Stars Holistic Foundation, Inc., to put it out of business. Under an ordinance, a dispensary’s permit would expire if it did not open within six months and, according to the third amended complaint (“TAC”), RCCC was prevented from doing so through actions to prevent the sale or lease of space to it.
Judge Barry Goode denied an anti-SLAPP motion by two defendants on the ground that the first prong of the statute, Code of Civil Procedure § 425.16—requiring protected activity—was not met.
‘Right Is Right’
“[O]n several occasions, in no uncertain terms, Judge Goode accused 7 Stars’ attorney of mischaracterizing the TAC, of not reading it ‘fair[ly].’ Against that background, 7 Stars comes before this court with a 55-page brief, citing 60 cases and 16 statutes, that is frankly nothing but more of the same—making arguments based on a reading of the complaint that was utterly rejected by Judge Goode. Sure it’s de novo review. But right is right. And it’s not right to continue to misrepresent ‘the gravamen,’ the thrust, of RCCC’s cause of action.”
He went on to say:
“The essence of RCCC’s TAC was (he private actions the group took to restrain trade and monopolize the medical marijuana market in Richmond. That was the gravamen, the thrust, of the cause of action. Whatever the protected activity, it was at the most incidental.”
The case is Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, Inc., A153305.
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