sham exception in California

2024(People v. Cortes (2022) 75 Cal.App.5th 198 , 205.) Swogger relies on People v. Seumanu (2015) 61 Cal.4th 1293 , in which the California Supreme Court concluded: “The prosecutor thus committed misconduct in closing argument in two ways: she implied defense counsel knew his client was guilty, and that counsel ‘put forward’ a sham defense, i.e., one he knew was false.

2016(See People v. Lee (2011) 51 Cal.4th 620, 647 ; People v. Meneley (1972) 29 Cal.App.3d 41, 60 [prosecutor did not conduct misconduct by questioning consistency of testimony or possible bias of the witness]; People v Edelbacher (1989) 47 Cal.3d 983, 1030 [referring to testimony as "lies" is not misconduct so long as argument is based on evidence].) Quiroz also points to the prosecutor's concluding statement to the jury that the "phantom car is meant to distract you, but stay focused on . . . the elements." Although this single statement perhaps implies defense counsel intended to distract the j

2004(See Noerr, supra, 365 U.S. at p. 144 , 81 S.Ct. 523 ; California Transport, supra, 404 U.S. at p. 513 , 92 S.Ct. 609 ; City of Columbia v. Omni Outdoor Advertising (1991) 499 U.S. 365, 380 , [ 111 S.Ct. 1344 ]; Blank v. Kirwan, supra, 39 Cal.3d at p. 322 , 216 Cal.Rptr. 718 , 703 P.2d 58 .) The sham exception is governed by a two-part test.

2004(See Noerr, supra, 365 U.S. at p. 144 , 81 S.Ct. 523 ; California Transport, supra, 404 U.S. at p. 513 , 92 S.Ct. 609 ; City of Columbia v. Omni Outdoor Advertising (1991) 499 U.S. 365, 380 , [ 111 S.Ct. 1344 ]; Blank v. Kirwan, supra, 39 Cal.3d at p. 322 , 216 Cal.Rptr. 718 , 703 P.2d 58 .) The sham exception is governed by a two-part test.

2016(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [defendant asserting prosecutorial misconduct must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion]; accord, People v. Duff (2014) 58 Cal.4th 527, 568 .) As the Supreme Court cautioned in Seumanu, “‘[a]n attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’” (Seumanu, supra, 61 Cal.4th at p. 1338 ; see People v. Espinoza (1992) 3 Cal.4th 806, 8

2016(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [defendant asserting prosecutorial misconduct must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion]; accord, People v. Duff (2014) 58 Cal.4th 527, 568 .) As the Supreme Court cautioned in Seumanu, “‘[a]n attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’” (Seumanu, supra, 61 Cal.4th at p. 1338 ; see People v. Espinoza (1992) 3 Cal.4th 806, 8

2016(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [defendant asserting prosecutorial misconduct must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion]; accord, People v. Duff (2014) 58 Cal.4th 527, 568 .) As the Supreme Court cautioned in Seumanu, “‘[a]n attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’” (Seumanu, supra, 61 Cal.4th at p. 1338 ; see People v. Espinoza (1992) 3 Cal.4th 806, 8

2016(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [defendant asserting prosecutorial misconduct must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion]; accord, People v. Duff (2014) 58 Cal.4th 527, 568 .) As the Supreme Court cautioned in Seumanu, “‘[a]n attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’” (Seumanu, supra, 61 Cal.4th at p. 1338 ; see People v. Espinoza (1992) 3 Cal.4th 806, 8

2016(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [defendant asserting prosecutorial misconduct must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion]; accord, People v. Duff (2014) 58 Cal.4th 527, 568 .) As the Supreme Court cautioned in Seumanu, “‘[a]n attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’” (Seumanu, supra, 61 Cal.4th at p. 1338 ; see People v. Espinoza (1992) 3 Cal.4th 806, 8

2016(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [defendant asserting prosecutorial misconduct must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion]; accord, People v. Duff (2014) 58 Cal.4th 527, 568 .) As the Supreme Court cautioned in Seumanu, “‘[a]n attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’” (Seumanu, supra, 61 Cal.4th at p. 1338 ; see People v. Espinoza (1992) 3 Cal.4th 806, 8

2008Co. v. NLRB (2002) 536 U.S. 516, 526 [ 153 L.Ed.2d 499 , 122 S.Ct. 2390 ] (BE&K), quoting Professional Real Estate *966 Investors, supra, 508 U.S. at pp. 60-61; see also Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 54-55 [ 61 Cal.Rptr.2d 694 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, supra, at p. 526; see also Wolfgram, supra, at pp. 54-55 .) Here, the State contends Pacific Lumber’s petitioning activities fall within the sham exception, and thus enjoy no Noerr-Pennington immunity.

2008(Professional Real Estate Investors, supra, 508 U.S. at p. 61, fn. 6 .) Moreover, the United States Supreme Court has recently confirmed that conduct falls within the sham exception only if it is, unlike here, objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits and subjectively motivated by an unlawful purpose. 9 (BE&K, supra, 536 U.S. at p. 526 .) In doing so, the court noted that “while false statements may be unprotected for their own sake, ‘[t]he First Amendment requires that we protect some falsehood in order to protect speech tha

2009This purposefully overbroad protection “is necessary ‘to assure to the freedoms of speech and press that “breathing space” essential to their fruitful exercise.’ [Citation.]” (Id. at p. 933, quoting Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 342 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ].) Similarly, in the right-to-petition context, the sham exception requires proof that a petition (or court pleading) is objectively baseless and motivated by an improper anticompetitive purpose.

2009This purposefully overbroad protection “is necessary ‘to assure to the freedoms of speech and press that “breathing space” essential to their fruitful exercise.’ [Citation.]” (Id. at p. 933, quoting Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 342 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ].) Similarly, in the right-to-petition context, the sham exception requires proof that a petition (or court pleading) is objectively baseless and motivated by an improper anticompetitive purpose.

2004However, as the dissent acknowledges, an exception to Noerr-Pennington immunity exists where one uses the governmental process (rather than its outcome) as a sham to cover anticompetitive conduct; a "classic example" of conduct to which immunity does not apply is where one brings "administrative and judicial actions ... solely to impose expense and delay, with no expectation of success." ( Columbia v. Omni Outdoor Advertising, Inc. (1991) 499 U.S. 365, 380 , 111 S.Ct. 1344 , 113 L.Ed.2d 382 .) As with the sham exception to the Noerr-Pennington doctrine, malicious prosecution permits recovery o

2004However, as the dissent acknowledges, an exception to Noerr-Pennington immunity exists where one uses the governmental process (rather than its outcome) as a sham to cover anticompetitive conduct; a "classic example" of conduct to which immunity does not apply is where one brings "administrative and judicial actions ... solely to impose expense and delay, with no expectation of success." ( Columbia v. Omni Outdoor Advertising, Inc. (1991) 499 U.S. 365, 380 , 111 S.Ct. 1344 , 113 L.Ed.2d 382 .) As with the sham exception to the Noerr-Pennington doctrine, malicious prosecution permits recovery o

2008(Blank, supra, 39 Cal.3d at p. 325 [“[f]or the purposes of the Noerr-Pennington doctrine, . . . impropriety and genuineness are not related . . .”].) Apparently conceding Pacific Lumber’s conduct fails to meet the two-part test for the sham exception put forth by the United States Supreme Court, the State and amicus curiae rely primarily on federal cases to suggest the exception nonetheless applies because allegations are raised of fraudulent conduct in the context of an adjudicatory proceeding.

2004(See Noerr, supra, 365 U.S. at p. 144 , 81 S.Ct. 523 ; California Transport, supra, 404 U.S. at p. 513 , 92 S.Ct. 609 ; City of Columbia v. Omni Outdoor Advertising (1991) 499 U.S. 365, 380 , [ 111 S.Ct. 1344 ]; Blank v. Kirwan, supra, 39 Cal.3d at p. 322 , 216 Cal.Rptr. 718 , 703 P.2d 58 .) The sham exception is governed by a two-part test.

2008Insofar as the administrative or judicial processes are involved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of ‘political expression.’ ” (California Transport, supra, 404 U.S. at p. 513 .) While a split of authority exists, several federal courts have relied on this language to extend the sham exception to cover certain fraudulent acts, at least when done in the adjudicatory context.

2004(See Noerr, supra, 365 U.S. at p. 144 , 81 S.Ct. 523 ; California Transport, supra, 404 U.S. at p. 513 , 92 S.Ct. 609 ; City of Columbia v. Omni Outdoor Advertising (1991) 499 U.S. 365, 380 , [ 111 S.Ct. 1344 ]; Blank v. Kirwan, supra, 39 Cal.3d at p. 322 , 216 Cal.Rptr. 718 , 703 P.2d 58 .) The sham exception is governed by a two-part test.

2018Suffice to say, the issue in this case is not only whether plaintiffs' complaint states a cause of action under the sham exception to the Noerr-Pennington doctrine (it does not), but also whether plaintiffs carried their burden of showing that their claims were "factually substantiated." ( Baral v. Schnitt , supra , 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475 , 376 P.3d 604 .) Plaintiffs do not identify any evidence in this record supportive of their theory that defendants undertook their petitioning activity as an anti-competitive weapon.

2018Suffice to say, the issue in this case is not only whether plaintiffs' complaint states a cause of action under the sham exception to the Noerr-Pennington doctrine (it does not), but also whether plaintiffs carried their burden of showing that their claims were "factually substantiated." ( Baral v. Schnitt , supra , 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475 , 376 P.3d 604 .) Plaintiffs do not identify any evidence in this record supportive of their theory that defendants undertook their petitioning activity as an anti-competitive weapon.

2009Joseph Co. (4th Cir. 2001) 237 F.3d 394 , 397-399.) The court also opined that the sham exception provided adequate protection against baseless and harassing prelitigation conduct.

2008Joseph Co. (4th Cir. 2001) 237 F.3d 394, 402, 404 (Baltimore Scrap) [declining to reach the question of “whether a fraud exception to Noerr-Pennington still exists after [Professional Real Estate Investors]” where “[plaintiff] cannot show that the state court judgment was procured by fraud or deceit,” and noting that “[a] broad fraud exception would allow federal collateral litigation over conduct in state courts that never affected the core of a state judgment . . .”].) The Kottle court went on to conclude that *968 administrative bodies are equivalent to judicial ones for purposes of the sha

2008In Kottle v. Northwest Kidney Centers (9th Cir. 1998) 146 F.3d 1056, 1060 , for example, the court recognized that “in the context of a judicial proceeding, if the alleged anticompetitive behavior consists of making intentional misrepresentations to the court, litigation can be deemed a sham if ‘a party’s knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy.’ (Liberty Lake Inv., Inc. v. Magnuson, 12 F.3d 155 , 158 (9th Cir. 1993); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1260 (9th Cir. 1982).” (See

1994As noted in Clipper Exxpress v. Rocky Mountain Motor Tariff (9th Cir. 1982) 690 F.2d 1240 , “[t]he sham exception . . . reflects a judicial recognition that not all activity that appears as an effort to influence government is actually an exercise of the first amendment right to petition.

2016(See People v. Lee (2011) 51 Cal.4th 620, 647 ; People v. Meneley (1972) 29 Cal.App.3d 41, 60 [prosecutor did not conduct misconduct by questioning consistency of testimony or possible bias of the witness]; People v Edelbacher (1989) 47 Cal.3d 983, 1030 [referring to testimony as "lies" is not misconduct so long as argument is based on evidence].) Quiroz also points to the prosecutor's concluding statement to the jury that the "phantom car is meant to distract you, but stay focused on . . . the elements." Although this single statement perhaps implies defense counsel intended to distract the j

2016(See People v. Lee (2011) 51 Cal.4th 620, 647 ; People v. Meneley (1972) 29 Cal.App.3d 41, 60 [prosecutor did not conduct misconduct by questioning consistency of testimony or possible bias of the witness]; People v Edelbacher (1989) 47 Cal.3d 983, 1030 [referring to testimony as "lies" is not misconduct so long as argument is based on evidence].) Quiroz also points to the prosecutor's concluding statement to the jury that the "phantom car is meant to distract you, but stay focused on . . . the elements." Although this single statement perhaps implies defense counsel intended to distract the j

2016(People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 [ 192 Cal.Rptr.3d 195 , 355 P.3d 384 ] [improper for prosecutor to assert defense “counsel presented a ‘sham’ defense”]; see People v. Hill (1998) 17 Cal.4th 800, 824-835 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ] [finding prosecutorial misconduct when prosecutor misstated or mischar-acterized evidence and attacked defense counsel’s integrity]; People v. Bain (1971) 5 Cal.3d 839, 847 [ 97 Cal.Rptr. 684 , 489 P.2d 564 ] [prosecutor’s unsupported implication that defense counsel fabricated defense is misconduct].) However, defendant’s failure to ra

2016(People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 [ 192 Cal.Rptr.3d 195 , 355 P.3d 384 ] [improper for prosecutor to assert defense “counsel presented a ‘sham’ defense”]; see People v. Hill (1998) 17 Cal.4th 800, 824-835 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ] [finding prosecutorial misconduct when prosecutor misstated or mischar-acterized evidence and attacked defense counsel’s integrity]; People v. Bain (1971) 5 Cal.3d 839, 847 [ 97 Cal.Rptr. 684 , 489 P.2d 564 ] [prosecutor’s unsupported implication that defense counsel fabricated defense is misconduct].) However, defendant’s failure to ra

2016(People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 [ 192 Cal.Rptr.3d 195 , 355 P.3d 384 ] [improper for prosecutor to assert defense “counsel presented a ‘sham’ defense”]; see People v. Hill (1998) 17 Cal.4th 800, 824-835 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ] [finding prosecutorial misconduct when prosecutor misstated or mischar-acterized evidence and attacked defense counsel’s integrity]; People v. Bain (1971) 5 Cal.3d 839, 847 [ 97 Cal.Rptr. 684 , 489 P.2d 564 ] [prosecutor’s unsupported implication that defense counsel fabricated defense is misconduct].) However, defendant’s failure to ra

2016(People v. Seumanu (2015) 61 Cal.4th 1293, 1337-1338 [ 192 Cal.Rptr.3d 195 , 355 P.3d 384 ] [improper for prosecutor to assert defense “counsel presented a ‘sham’ defense”]; see People v. Hill (1998) 17 Cal.4th 800, 824-835 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ] [finding prosecutorial misconduct when prosecutor misstated or mischar-acterized evidence and attacked defense counsel’s integrity]; People v. Bain (1971) 5 Cal.3d 839, 847 [ 97 Cal.Rptr. 684 , 489 P.2d 564 ] [prosecutor’s unsupported implication that defense counsel fabricated defense is misconduct].) However, defendant’s failure to ra

2011Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 965 [ 70 Cal.Rptr.3d 501 ] [describing the expansive scope of the doctrine].) There is no Noerr-Pennington immunity, however, if the person’s petitioning activity is a “sham.” (Ibid.) The sham exception to the Noerr-Pennington doctrine has two prongs.

2011Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 965 [ 70 Cal.Rptr.3d 501 ] [describing the expansive scope of the doctrine].) There is no Noerr-Pennington immunity, however, if the person’s petitioning activity is a “sham.” (Ibid.) The sham exception to the Noerr-Pennington doctrine has two prongs.

2008(Professional Real Estate Investors, supra, 508 U.S. at p. 61, fn. 6 .) Moreover, the United States Supreme Court has recently confirmed that conduct falls within the sham exception only if it is, unlike here, objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits and subjectively motivated by an unlawful purpose. 9 (BE&K, supra, 536 U.S. at p. 526 .) In doing so, the court noted that “while false statements may be unprotected for their own sake, ‘[t]he First Amendment requires that we protect some falsehood in order to protect speech tha

2008(Professional Real Estate Investors, supra, 508 U.S. at p. 61, fn. 6 .) Moreover, the United States Supreme Court has recently confirmed that conduct falls within the sham exception only if it is, unlike here, objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits and subjectively motivated by an unlawful purpose. 9 (BE&K, supra, 536 U.S. at p. 526 .) In doing so, the court noted that “while false statements may be unprotected for their own sake, ‘[t]he First Amendment requires that we protect some falsehood in order to protect speech tha

2008Co. v. NLRB (2002) 536 U.S. 516, 526 [ 153 L.Ed.2d 499 , 122 S.Ct. 2390 ] (BE&K), quoting Professional Real Estate *966 Investors, supra, 508 U.S. at pp. 60-61; see also Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 54-55 [ 61 Cal.Rptr.2d 694 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, supra, at p. 526; see also Wolfgram, supra, at pp. 54-55 .) Here, the State contends Pacific Lumber’s petitioning activities fall within the sham exception, and thus enjoy no Noerr-Pennington immunity.

2008Co. v. NLRB (2002) 536 U.S. 516, 526 [ 153 L.Ed.2d 499 , 122 S.Ct. 2390 ] (BE&K), quoting Professional Real Estate *966 Investors, supra, 508 U.S. at pp. 60-61; see also Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 54-55 [ 61 Cal.Rptr.2d 694 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, supra, at p. 526; see also Wolfgram, supra, at pp. 54-55 .) Here, the State contends Pacific Lumber’s petitioning activities fall within the sham exception, and thus enjoy no Noerr-Pennington immunity.

2008Co. v. NLRB (2002) 536 U.S. 516, 526 [ 153 L.Ed.2d 499 , 122 S.Ct. 2390 ] (BE&K), quoting Professional Real Estate *966 Investors, supra, 508 U.S. at pp. 60-61; see also Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 54-55 [ 61 Cal.Rptr.2d 694 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, supra, at p. 526; see also Wolfgram, supra, at pp. 54-55 .) Here, the State contends Pacific Lumber’s petitioning activities fall within the sham exception, and thus enjoy no Noerr-Pennington immunity.

2008Co. v. NLRB (2002) 536 U.S. 516, 526 [ 153 L.Ed.2d 499 , 122 S.Ct. 2390 ] (BE&K), quoting Professional Real Estate *966 Investors, supra, 508 U.S. at pp. 60-61; see also Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 54-55 [ 61 Cal.Rptr.2d 694 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, supra, at p. 526; see also Wolfgram, supra, at pp. 54-55 .) Here, the State contends Pacific Lumber’s petitioning activities fall within the sham exception, and thus enjoy no Noerr-Pennington immunity.

2007Police deception “does not necessarily invalidate an incriminating statement.” (People v. Maury (2003) 30 Cal.4th 342, 411 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ].) Courts have repeatedly found proper interrogation tactics far more intimidating and deceptive than those employed in this case.

2007Police deception “does not necessarily invalidate an incriminating statement.” (People v. Maury (2003) 30 Cal.4th 342, 411 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ].) Courts have repeatedly found proper interrogation tactics far more intimidating and deceptive than those employed in this case.

1994(Ibid.) While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liability (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 533 [ 183 Cal.Rptr. 86 , 645 P.2d 137 , A.L.R.4th 2851]; Gorman Towers, Inc. v. Bogoslovsky (8th Cir. 1980) 626 F.2d 607, 614-615 ; see Westfield Partners, Ltd. v. Hogan (N.D.Ill. 1990) 740 F.Supp. 523, 526 ; Pennwalt Corp. v. Zenith Laboratories, Inc. (E.D.Mich. 1979) 472 F.Supp. 413, 424 ), including liability for interference with contractual relations or prospective

1994(Ibid.) While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liability (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 533 [ 183 Cal.Rptr. 86 , 645 P.2d 137 , A.L.R.4th 2851]; Gorman Towers, Inc. v. Bogoslovsky (8th Cir. 1980) 626 F.2d 607, 614-615 ; see Westfield Partners, Ltd. v. Hogan (N.D.Ill. 1990) 740 F.Supp. 523, 526 ; Pennwalt Corp. v. Zenith Laboratories, Inc. (E.D.Mich. 1979) 472 F.Supp. 413, 424 ), including liability for interference with contractual relations or prospective