By Jeff Birren, Senior Writer
Lambert Davis, Jr. is a Sacramento-area cheesecake specialist. Davis provided cheesecake to visiting and home players in exchange for tickets to the River Cats’ Sacramento games. He often gave these tickets to family members and friends. Davis “picks up the tickets at the ticket office after showing his driver’s license” (Davis v. Sacramento River Cats Baseball Club, LLC, Cal. App., Third Dist., Case No. C092384 (“Davis”), at 2 (9-30-21)).
Davis alleged that in June 2015, the River Cats’ ticket manager, John Krivacic, made a photocopy of Davis’s driver’s license. Krivacic showed the copy to the team’s manager and to baseball operations manager Daniel Emmons. He allegedly told both that Davis was a ticket scalper and instructed that the River Cats post a sign in the visiting team’s locker room to that effect. That was done with an image of Davis’ face from the driver’s license. When Davis learned this, he sued the River Cats, its president, Jeffrey Savage, Krivacic, and Emmons. Recently, the California Court of Appeal affirmed the dismissal of all claims (Id. at 6).
Facts
Davis went to high school in Sacramento and eventually opened up To Bay And Back Cheesecakes there. Davis filed his complaint in March 2017. He had causes of action for defamation, invasion of privacy on a common law theory and under California Civil Code section 1798.53 for disclosing personal information obtained from records maintained by a state agency, negligent interference with a present and future business interest and a violation of the California Unruh Civil Rights Act.
The defendants demurred in June 2017. The trial court sustained with leave to amend all causes of action against team president Savage except the Civil Code claim that was sustained without leave to amend “because plaintiff had not alleged sufficient facts to show Savage took part in the posting of the sign.” It sustained the defendants’ demurrer as to the defamation cause of action with leave to amend. The court also sustained the demurrer without leave to amend as to the Civil Code claim because the defendants were not employees of a state agency. It “overruled the demurrer to all other cause of action as it pertained to all defendants besides Savage” (Davis v. Sacramento River Cats Baseball Club, LLC et al, Cal. App., Third Dist., No. C086440 at 2 (9-19-19)). Davis filed an amended complaint.
This complaint alleged the same operative facts but asserted that Savage “ratified” or “instructed” Krivacic and Emmons to post the sign. It omitted the privacy cause of action. The defendants responded by filing an anti-SLAAP motion. To succeed, Cal. Civ. Proc. §425.16, requires defendants to show they are being sued because 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.” Davis argued that this defense was untimely. The trial court disagreed that it was untimely and found that the sign was protected speech (Id.).
Davis appealed and the Court of Appeal rendered a split decision. It reversed the dismissal under the anti-SLAPP law and remanded the case to allow the trial court to “consider whether to exercise its discretion to hear the defendants’ anti-SLAPP motion on the merits” rather than on Davis’s assertion that this defense was untimely (Id. at 5). It sustained the trial court’s ruling that the Civil Code privacy claim was properly dismissed without leave to amend (Id. at 7).
The case went back to the trial court. That court “exercised its discretion to permit the late filing of the River Cats’s special motion to strike and reaffirmed its prior ruling” (Davis at 3), so Davis appealed again.
Back In the Court of Appeal
The first question was what issues Davis had preserved and were thus properly before the court. The defendants argued that Davis was limited to just three issues: timeliness of their motion, success on the merits, and attorney fees, “because those were the grounds addressed on remand or preserved by Davis’s first appeal” (Id. at 4), and as a result, Davis could not challenge the trial court’s ruling about the nature of the speech because he failed to “challenge that finding on his first appeal.”
The Court agreed. Davis failed to challenge the earlier ruling “that his causes of action arose from protected activity” and therefore “Davis is precluded from challenging the trial court’s ruling related to the nature of the River Cats’s conduct in his second appeal.”
The first issue properly before the Court therefore was whether Davis could show that the trial court erred by finding that he had no probability of success on his defamation, invasion of privacy, and Unruh Civil Rights causes of action. The Court noted that Davis did not “challenge the trial court’s finding that he could not prevail on his business interference cause of action” (Id.).
Davis had “the burden to establish that the elements of the challenged claim(s) are ‘supported by sufficient prima facie showing of facts to sustain a favorable judgment of the evidence submitted by the [party opposing the motion] is credited’” (Id.). The trial court accepts this evidence as true and “evaluates the moving party’s evidence only if it has defeated the opposing party’s evidence as a matter of law” (Id. at 5). The court “must determine whether a plaintiff can establish a prima facie case of prevailing, or whether a defendant has defeated a plaintiff’s evidence as a matter of law.” The Court of Appeal reviews this ruling de novo.
Davis argued that the trial court erred “because it discounted his request to consider the evidence submitted by the River Cats as supporting his causes of action.” However, that is not what the court did. Rather, it “took issue” with his “failure to demonstrate which evidence supported his prima facie showing for relief on each element of his causes of action.” In his opposition Davis only asserted that the River Cats’s affirmative defenses failed, but “made no argument and cited no evidence affirmatively demonstrating the elements of his causes of action were supported by facts sufficient to sustain a favorable judgment” (Id.). This is required by California law, and Davis failed to do it.
He “tried to remedy this error by filing a motion of reconsideration, but the court denied that motion and it has gone unchallenged on appeal.” Davis also attempted to make that showing on appeal, but the Court of Appeal does “not consider arguments never made to the trial court.” Davis “failed to carry his burden in the trial court” and he “cannot make up for that deficit on appeal. Thus, Davis has failed to establish error.” The Court added a footnote that described several more arguments that Davis raised for the first time on appeal, but the Court “will not consider arguments raised for the first time on appeal” (Id., FN 4).
The Trial Court’s Attorney Fee Award
Davis not only argued that the attorney fee award made against him should be reversed, but the Court of Appeal should make such an award to him. This required Davis to show that the motion below was without merit or was intended to cause unnecessary delay. He claimed that the River Cats’ delay prejudiced him by interrupting discovery. Unfortunately for Davis, he failed to challenge the trial court’s timeliness determination “which it made on remand following his last appeal. Rulings not challenged are presumed correct” (Id. at 6). Moreover, he failed to show that the River Cats “brought the motion for the purpose of delaying an inevitable judgment against it. Thus, Davis has not established the delay was unnecessary.”
Davis also argued that the motion was without merit and “the trial court would have found it so if it had considered the evidence submitted by the River Cats for the purposes of proving Davis’s causes of action.” However, the trial court “did not disregard the evidence cited by Davis” but rather “found that Davis failed to meet his burden of citing” to evidence “supporting the elements of his causes of action.” The record therefore did “not support” his “assertion the trial court ignored evidence favorable to him.” Consequently, the “judgment of dismissal and award of attorney fees are affirmed” and Davis “shall pay the River Cats’s costs on appeal” (Id.).
The Party’s Not Over
While this was going on, Krivacic moved from the River Cats to the Sacramento Kings. Once again, Davis and Krivacic had an interaction at a game, this time in March 2018, and Davis sued Krivacic and the Kings. He filed an amended complaint less than a month later. Krivacic and the Kings filed an anti-SLAPP motion that was granted as to all but one cause of action (Davis v. Krivacic et al, Cal. App., Third Dist., No. C089084, at 2(8-26-20)). While that was pending, Davis filed a second amended complaint. Krivacic and the Kings demurred to the remaining cause of action that the defendants denied him access or otherwise subjected him to unequal treatment due to race. The trial court agreed and dismissed the case (Id.).
Davis appealed only the Unruh Civil Rights Act cause of action. He asserted that he had been treated unequally because of his prior lawsuit against Krivacic and the River Cats. The Court agreed with Davis that he had properly alleged a claim that Krivacic “embarrassed and defamed him” and his “unequal treatment was arbitrary because it was based on his race” (Id. at 3). It reversed the judgment, awarded Davis costs on appeal, and sent the remaining claim back to the trial court (Id. at 4). Davis filed a third amended complaint on 2-22-21 and Krivacic answered on 3-23-21. That case continues: stay tuned. Note: the Court did not publish any of its three opinions.
Conclusion The month following his secondinteraction with Davis, Krivacic became the Director of Ticketing for the Professional Bull Riders, in Las Vegas, Nevada. Davis continues to make cheesecake, and he “is a regular” at Sacramento City Council meetings (capradio.org, Sarah Mizes-Tan, “Cheesecake, Persistence, And How A Black Small Business Owner Took To Sacramento City Council Meetings For Help” (3-11-21)). It is now probably a waste of time to suggest that Davis and Krivacic sit down together, break bread (or cheesecake?), and try to amicably resolve their differences, so Davis and Krivacic remain “don’t invite ‘ems.”
