Knowledge and Intelligence Program et
al. v. Lukin
Filed 7/2/13 Knowledge and Intelligence Program et al. v.
Lukin CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
KNOWLEDGE AND INTELLIGENCE
PROGRAM PROFESSIONALS, INC.,
Plaintiff and Appellant,
v.
ANTHONY LUKIN et al.,
Defendants and Appellants.
B234495
(Los Angeles
County
Super. Ct.
No. NC053503 )
APPEAL from
an order of the Superior Court
of
County. Joseph E.
DiLoreto, Judge. Affirmed in part and
reversed in part.
Kamala D.
Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney General,
Steven M. Gevercer, Assistant Attorney General, Joel A. Davis and Elizabeth S.
Angres, Deputy Attorneys General, for Defendants and Appellants.
Plager
Schack and Michael L. Schack for Plaintiff and Appellant.
____________________
This is an
appeal and cross-appeal from an order denying in part and granting in part a
special motion to strike under Code of Civil Procedure section 425.16, the
“anti-SLAPP statute.â€
name="_ftnref1" title="">[1] The lawsuit was filed by plaintiff Knowledge
and Intelligence Program Professionals, Inc. (KIPP) against four
defendants: two state agencies, the
Commission on Peace Officer Standards and Training (POST) and the California
Specialized Training Institute (CSTI) (the state defendants), and two
individuals, CSTI employee Anthony Lukin (Lukin) and Kenneth L. Whitman
(Whitman), a special consultant to POST (collectively defendants).
arise from protected activity. We reverse
only that part of the order granting the motion to strike in favor of the state
defendants and awarding them attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
POST was
established by the Legislature in 1959 to set minimum selection and training
standards for California law
enforcement. California Code of
Regulations, Title 11, Division 2, sections 1051 through 1058 sets forth
the extensive requirements for POST’s certification of courses. POST either certifies presenters to teach its
courses or uses approved instructors.
POST also has full authority to decertify courses. (Cal.
Code Regs., tit. 11., § 1057.) POST is
required to review certified courses annually to evaluate “[t]he continuing
need for the course, currency of curriculum, and adherence to requirements for
course certification.†(Cal.
Code Regs., tit. 11., § 1056.) CTSI
provides coordination of training and presentation of POST courses.
Allegations of the Third Amended Complaint
The operative
third amended complaint (TAC) alleges the following: Since 2001, KIPP has provided training and
consulting services in the fields of homeland security, intelligence and
strategic risk management to both the private and public sectors. Since at least 2004, KIPP has provided
approved instructors to teach POST’s Terrorism Liaison Officer (TLO) course,
which has been approved by the United States Department of Homeland Security
(DHS) for federal funding. In the fall
of 2007, Lukin, in his individual capacity and as an agent for Lukin &
Associates, orally agreed that KIPP would run full-page advertisements
featuring TLO training in Police Chief and Sheriff magazines and that any
out-of-state business generated from the advertising would go exclusively to
KIPP. Until that time, Lukin &
Associates had taught the TLO course outside California. In February 2008, Lukin, again in his
individual capacity and as an agent for Lukin & Associates, demanded that
all leads from KIPP’s advertising be forwarded to him for POST through CSTI,
and announced that POST, through Whitman, wanted the advertisements stopped and
that only POST would offer the TLO training.
Lukin took the leads to generate private consulting contracts for Lukin
& Associates to teach the TLO course out of state.
The TAC
also alleges that Lukin and Whitman issued unfounded negative reviews of KIPP’s
TLO curriculum, despite the curriculum bearing DHS approval, in order to divert
all TLO training to Lukin & Associates.
“The instigation and instruction of Whitman and Lukin was with the
specific intent to wrongfully cause the TLO course to be suspended and/or
decertified in an effort to prevent KIPP, with its superior training program,
from building and growing a successful business providing training to peace
officers throughout the United States, such that . . . Lukin
& Associates could continue to thrive, thus allowing all TLO training to be
diverted to Lukin & Associates.â€
The TAC
also alleges that to “further their plan and conspiracy to divert private
contracts for TLO courses to Lukin & Associates, on or about September 19,
2008, at the instigation of Whitman and Lukin, POST sent a letter†to KIPP
demanding that it cease presenting the TLO course and that POST was “suspending
certification†of the course. From
September 2008 to September 2009, no alternative TLO course approved by DHS was
offered. “Tony Lukin and Ken Whitman,
using the auspices of Lukin & Associates, have positioned Lukin &
Associates to teach a new [TLO] course independent of POST for compensation
paid directly to Tony Lukin and/or Lukin & Associates, and have done so in
other states to the wrongful exclusion of Plaintiff.†In October 2008, KIPP attended a meeting
during which Lukin, acting on behalf of CSTI, “invited anyone who disagreed
with the moratorium and decertification to file a lawsuit against POST.â€
The first
cause of action alleges violation of the Political Reform Act (Gov. Code, §
87100) against Lukin and Whitman.
name="_ftnref3" title="">[3] The TAC alleges that Lukin and Whitman “have
and will continue to abuse their official positions to influence a governmental
decision, e.g., the suspension and/or decertification of TLO courses and
targeting qualified trainers such as KIPP, to benefit their own financial
interests through the awarding of contracts and seminars for compensation to Defendant
Lukin & Associates.â€
The second
cause of action seeks declaratory relief against Lukin, Whitman and the state
defendants. The TAC alleges that Lukin’s
and Whitman’s actions have caused the state defendants, which are alleged to
act as managers of federal grant monies, to violate the Economy Act (31 U.S.C.
§ 1535), by influencing state agencies to refuse to reimburse public safety
agencies for TLO training, and have engaged in the improper assessment and
collection of administrative fees from federal grant monies. Lukin’s and Whitman’s actions have also
caused the state defendants to violate “California Open Meeting Acts†by
imposing a moratorium on the TLO course in the absence of a public hearing.
The third
cause of action seeks declaratory relief against only the state
defendants. The TAC alleges that on or
about June 24, 2010, POST transmitted to KIPP a letter stating that POST has a
copyright on the TLO course materials, POST has the right to condition
certification of the TLO course and restrain instructors from using the course
materials for personal or business profit, KIPP violated these conditions by
advertising on the Internet that it provides TLO training, and KIPP acted as a
“presenter†without certification. A
month later, on or about July 23, 2010,
POST sent KIPP a letter stating that it did not have permission or approval to
use the course material to provide instruction in a similar course being
presented in Nevada. Implied in the letter was a threat that
should KIPP not comply with the demand to stop using the course materials, POST
would not permit it to act as an instructor of the TLO course.
Finally,
the sixth cause of action alleges a violation of Business and Professions Code
section 17200 against Lukin and Whitman, asserting that they have engaged in
unfair business practices by violating the Political Reform Act.
The TAC
prays for numerous declarations, including declarations that Lukin and Whitman
have violated the Political Reform Act; that all defendants have violated the
Economy Act and the California Open Meeting Acts; and that the state defendants
improperly decertified or suspended KIPP’s TLO curriculum, do not have a
copyright on the TLO course materials, cannot prevent instructors on the use of
course materials, and cannot withhold or instruct other agencies to withhold
payment of federal grant monies to peace officers for reimbursement for such
training.
The Anti-SLAPP Motion
Defendants filed a combined
special motion to strike the TAC, on the grounds that the alleged conduct arose
from protected activity, and KIPP
could not show a likelihood of prevailing because, among other things,
defendants have various statutory immunities from liability. Defendants sought their attorney fees and
costs.
Defendants
relied primarily on Whitman’s declaration, which stated: “Suspensions of courses are a customary
practice of POST when course curriculums are revisedâ€; the revisions commenced
in September 2008 and were completed in January 2009; in April 2009 KIPP and
others were invited to become certified presenters of the newly revised TLO
course but KIPP did not apply; KIPP has been employed as an instructor of the
new TLO course by two of the currently certified presenters; and “[a]t no time
since its inception has the TLO Course been decertified, and, similarly, at no
time has the course certification been suspended.â€
Opposition Papers
KIPP opposed the special
TAC did not arise from protected activity, KIPP claims were exempt from the
anti-SLAPP statute, KIPP could establish a prima facie case on the merits, and
none of the privileges asserted by defendants applied.
KIPP relied
on the declaration of its founder and principal, Harold Kempfer, who clarified
that KIPP had never acted as a “presenter†of any TLO course, but had only
provided approved instructors. Kempfer
reiterated the TAC’s allegations about referring advertising leads to Lukin. He also attached numerous e-mails on which he
was copied, including one from Lukin to the City of Chicago, in which Lukin
stated he was using his “personal computer as this is ‘private,’ not California
State business,†and provided information about the TLO course. Kempfer also attached a copy of the September
15, 2008, letter addressed to him from the assistant executive director of
POST, Michael C. Dimiceli (Dimiceli), which stated that POST was “suspending
certification and use of the current standardized course curriculum effective
immediately,†and that DHS had been notified that POST was “suspending
presentations of the current course until the modifications to the curriculumâ€
were completed and that no federal grants could be used to present the prior
version of the course. KIPP also
submitted its attorney’s declaration, which asserted that the various documents
attached to his declaration were obtained pursuant to his public records
request to POST.
title="">[4] KIPP also filed evidentiary objections.
Reply and
Supplemental Papers
Along with their
evidentiary objections to KIPP’s evidence.
They also submitted a declaration from Lukin, who stated that he was not
involved in the decision to suspend the TLO course, and a declaration from
Dimiceli which stated that he had made the decision to suspend the TLO course
without any consultation with or input from Lukin. Whitman filed another declaration stating
that he used Lukin’s personal e-mail when working on government business. The parties also filed supplemental briefs,
declarations, and evidentiary objections.
Trial Court Ruling
After
overruling the majority of evidentiary objections, the trial court denied the
anti-SLAPP motion in its entirety as to Lukin and granted it as to
Whitman. As to the state defendants, the
trial court ruled: “The Special Motion
to Strike of Defendant State is granted as to the first cause of action and
denied as to the second cause of action.†There is no ruling on the third cause of
action against the state defendants. The
court denied Lukin’s request for attorney fees, and granted attorney fees to
the state defendants in the amount of $1,680 and to Whitman in the amount of
$2,360.
Defendants
filed a notice of appeal and KIPP filed a notice of cross-appeal.
DISCUSSION
I. The Anti-SLAPP Statute and the Standard of
Review
The anti-SLAPP statute provides
that “A cause 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.â€
(§ 425.16, subd. (b)(1).) An act
“in furtherance of†the right of petition or free speech includes “any written
or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by lawâ€; “any written
or oral statement or writing made in connection with an issue under
consideration or review by . . . any other
“any written or oral statement or writing made in a place open to the public or
a public forum in connection with an issue of public interestâ€; or “any other
conduct in furtherance of the exercise of the constitutional right of petition
or . . . of free speech in connection with a public issue or an
issue of public interest.†(§ 425.16,
subd. (e).)
There are two components to a
motion to strike brought under section 425.16.
Initially, the defendant has the threshold burden to show that the cause
of action arises from an act in furtherance of the right of petition or free
speech. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
67.) Once that burden is met, the burden
shifts to the plaintiff to demonstrate a probability of prevailing on the
claim. (Zamos v. Stroud, supra, at p. 965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) To satisfy this prong, the plaintiff “‘must
demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.’†(Wilson
v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821;
Court (2000) 78 Cal.App.4th 562, 568 [to establish a probability of
prevailing, a plaintiff must substantiate each element of the alleged cause of
action through competent, admissible evidence].) “Only a cause of action that satisfies
statute—i.e., that arises from protected speech or petitioning
subject to being stricken under the statute.â€
(Navellier v. Sletten (2002)
29 Cal.4th 82, 89.)
We independently review the record
to determine whether the asserted causes of action arise from the defendant’s
free speech or petitioning activity, and, if so, whether the plaintiff has
shown a probability of prevailing. (
1301, 1306; Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,
212.) In making these determinations, we
consider “the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.†(§ 425.16, subd. (b)(2); see
326; Equilon Enterprises v. Consumer
Cause, Inc., supra, 29 Cal.4th at p. 67.) In determining whether the plaintiff has met
its burden, we do not reweigh the evidence, but accept as true all evidence
favorable to the plaintiff and evaluate the defendant’s evidence only to
determine if it has defeated the evidence submitted by the plaintiff as a
matter of law. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90,
105–106.)
II. Section 425.17
As an initial matter, we reject
KIPP’s contention that its causes of action are exempt from the anti-SLAPP
statute pursuant to section 425.17, subsection (b). This section provides that section 425.16
does not apply to “any action brought solely in the public interest or on
behalf of the general public if all of the following conditions exist: [¶]
(1) The plaintiff does not seek any relief greater than or different
from the relief sought for the general public or a class of which the plaintiff
is a member. A claim for attorney’s
fees, costs, or penalties does not constitute greater or different relief for
purposes of this subdivision. [¶] (2) The action, if successful, would enforce
an important right affecting the public interest, and would confer a
significant benefit, whether pecuniary or nonpecuniary, on the general public
or a large class of persons. [¶] (3) Private enforcement is necessary and
places a disproportionate financial burden on the plaintiff in relation to the
plaintiff's stake in the matter.†(§
425.17, subd. (b).)
KIPP cannot meet the first
condition because the TAC seeks relief specific to KIPP. The TAC seeks monetary damages of $500,000
for the first cause of action, as well as general and compensatory damages,
punitive damages, interest, and “other and further relief.†KIPP asserts that following the trial court’s
ruling on the demurrers, there are no longer any claims for damages, except
civil penalties. But this fact is
irrelevant because KIPP originally sought to benefit itself financially. Moreover, the TAC alleges that Lukin and
Whitman “wrongfully cause[d] the TLO course to be suspended and/or decertified
in an effort to prevent KIPP, with its superior training program, from building
and growing a successful business.†The
TAC also seeks declarations that “POST and CSTI improperly decertified or
suspended KIPP’s DHS certified TLO
curriculum,†and POST does not have the authority to “prevent or preclude
Plaintiff, in this instance, from engaging in legitimate interstate and
intrastate commerce.†(Italics
added.) And the TAC seeks an injunction
requiring “the immediate certification of KIPP and its instructors to provide
such training.†Thus, the relief KIPP
seeks is not “solely†in the public interest or on behalf of the general
public.
III. Protected Activity
Parties’ Positions
Defendants contend that KIPP’s causes of action are
protected acts because they arise from statements or writings made in
connection with an issue under consideration or review in an official
proceeding authorized by law. (§ 425.16,
subd. (e)(2).) Defendants assert that “the
predominate foundation of KIPP’s case and each cause of action that survived
demurrer are alleged statements or writings made in the process of reviewing
and suspending presentation of the TLO Course during the brief period revisions
were made to the course—official proceedings authorized by law,†and that
“[a]lleged statements made by POST representatives and CSTI representatives
(including Lukin) in the course of administrative proceedings authorized by law
serve as the foundation for each of KIPP’s causes of action.†In addition to specific allegations,
defendants point to the letters identified in the TAC.
KIPP
contends that the speech and letters are not at issue; rather, it is the
“decision-making and policies of the respective state agencies that is at
issue.†KIPP argues that the manner in
which defendants conducted themselves was “problematic,†including suspending
the TLO course when there is no provision in the regulations for suspension,
failing to have a public hearing before suspending the course, precluding the
use of federal homeland security funds for a training course approved by the
DHS, and permitting state employees to engage in acts incompatible with their
official positions. According to KIPP,
the “issue is NOT what has been said or written by any individuals to accomplish
a result. KIPP claims the laws have not
been followed and that without a court order stating the conduct is improper,
the conduct will be repeated.â€
B.
The first
cause of action alleges that Lukin has violated the Political Reform Act. Government Code section 87100 provides: “No public official at any level of state or
local government shall make, participate in making or in any way attempt to use
his official position to influence a governmental decision in which he knows or
has reason to know he has a financial interest.â€
KIPP asserts that the “essence of
the First Cause of Action is a conflict of interest in which Lukin and Whitman
abused their official jobs for private gain.â€
KIPP further asserts: The “First
Cause of Action merely alleges that the Individual Defendants violated [the
Political Reform Act] by virtue of their relationship with [Lukin &
Associates]. There is no free speech
right nor right to petition implicated from the operation of a private business
enterprise for profit in violation of [the law]. Therefore, as to the First Cause of Action,
the ‘arising out of protected activity’ prong is not met and Lukin’s Motion as
to that cause of action was properly denied.â€
We agree. The TAC makes clear that KIPP is complaining
that Lukin should not be allowed to operate a private business in direct
conflict with his official position. As
KIPP asserts in its reply brief, “It is Lukin’s operation of the private
business that underpins the First Cause of Action against Lukin and the State
Defendants. Put another way, but for
Lukin’s operation of his private business, there could be no cause of action
for Violation of the Political Reform Act—regardless of what Lukin may have
said or written.â€
Moreover, the TAC does not allege
that an official proceeding authorized by law took place. Rather, the TAC alleges that the suspension
of the TLO course was improper in large part precisely because there was no
official proceeding authorized by law, namely, a public hearing on the
matter. Even if it could be said that
Lukin participated in the decision to suspend the TLO course, this would not
subject the first cause of action to the anti-SLAPP statute. (See Graffiti
Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th
1207, 1224 [“That City officials may have deliberated in deciding whether to
invite bids in selecting GPC’s successor does not mean the City exercised its
right of petition or free speechâ€].)
Furthermore, “if the allegations of
protected activity are only incidental to a cause of action based essentially
on nonprotected activity, the mere mention of the protected activity does not
subject the cause of action to an anti-SLAPP motion.†(Scott
v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414–415;
(2003) 113 Cal.App.4th 181, 188 [“[I]t is the principal thrust or gravamen
of the plaintiff’s cause of action that determines whether the anti-SLAPP
statute applies [citation], and when the allegations referring to arguably
protected activity are only incidental to a cause of action based essentially
on nonprotected activity, collateral allusions to protected activity should not
subject the cause of action to the anti-SLAPP statute.†The gravamen of the first cause of action is
that Lukin abused his official position to benefit his own private company in
violation of the law. This is not
protected activity.
Second Cause of Action
The second cause of action seeks an
order from the court declaring, essentially, that the state defendants have not
been acting in compliance with the law.
The TAC alleges that such violations will continue in the absence of a
court order stopping the abuses. The
acts alleged to give rise to the need for declaratory
relief are the failure to conduct an open meeting before suspending the TLO
course in violation of the Bagley-Keene Open Meeting Act (Gov. Code, §§
11120-11132);
title="">[6] the failure to comply with the Economy Act (31
U.S.C. § 1535), which requires that federal funds be used in the most
economical way; the failure to comply with the Code of Regulations in
certifying and decertifying courses; and allowing employees to engage in
activities incompatible with their official duties. None of these remedies are based on the
exercise of a free speech or petitioning right by the state defendants. Instead, these remedies arise out of the
state defendants’ failure to comply with the law.
In Graffiti Protective Coatings, Inc. v. City of Pico Rivera, supra,
181 Cal.App.4th 1207, the appellate court held that the city’s anti-SLAPP
motion should be denied in an action seeking declaratory relief to invalidate a
city contract as not complying with municipal laws requiring competitive
bidding. The court said, “We conclude
that, even if plaintiff’s claims involve a public issue, they are not based on
any statement, writing, or conduct by the city in furtherance of its right of
free speech or its right to petition the government for the redress of
grievances. Rather, plaintiff’s claims
are based on state and municipal laws requiring the city to award certain
contracts through competitive bidding.â€
(Id. at p. 1211.) Thus, the plaintiff’s suit to enforce the
competitive bidding laws fell outside the ambit of the anti-SLAPP statute. (Id.
at p. 1225.)
Likewise, in San Ramon Valley Fire Protection Dist. v. Contra Costa County
Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 355, the appellate
court affirmed the denial of an anti-SLAPP motion in an action challenging a
public agency’s determination of retirement benefits. The court stated, “there is nothing about
[the agency’s] decision, qua governmental action, that implicates the exercise
of free speech or petition.†(
based on the content of speech it has promulgated or supported, nor on its
exercise of a right to petition. The
action challenged consists of charging the District more for certain pension
contributions than the District believes is appropriate. This is not governmental action which is
speech-related.†(Id. at p. 357.)
Similarly here, the declaratory
relief sought in the second cause of action is not based on any statement,
writing, or conduct in furtherance of the state defendants’ right of petition
or free speech. Indeed, “Actions to
enforce, interpret or invalidate governmental laws generally are not subject to
being stricken under the anti-SLAPP statute.
If they were, efforts to challenge governmental action would be burdened
significantly.†(USA Waste of California, Inc. v. City of Irwindale (2010) 184
Cal.App.4th 53, 65.)
Third Cause of Action
The TAC also seeks declaratory
relief against the state defendants in the third cause of action. However, the trial court’s order on the
anti-SLAPP motion makes no mention of this cause of action. The parties offer their own interpretations
of how the trial court intended to rule.
But neither the written order nor the hearing on the anti-SLAPP motion
provide any guidance, and we are not willing to speculate as to how the trial
court intended to rule. As the parties
moving to strike the TAC, defendants were obligated to obtain a complete ruling
on their motion. There is no indication
in the record on appeal that defendants sought reconsideration of the order on
the ground that the trial court did not rule on the third cause of action. Because there was no ruling by the trial
court on this cause of action, there is nothing for us to review. (See, e.g., People v. Wilson (2008) 44 Cal.4th 758, 798–799;
827–828.) Accordingly, we treat this
cause of action as still viable.
Sixth Cause of Action
The sixth cause of action alleges
that Lukin violated Business and Professions Code section 17200 by using his government
position to benefit his private company.
Like the first cause of action against Lukin, the thrust of the sixth
cause of action is Lukin’s conflict of interest to the benefit of his own
company, and not any protected rights to petition or free speech.
IV. Attorney Fees
Because we reverse the order
granting the anti-SLAPP motion as to the state defendants on the first cause of
action, having found such ruling void, we reverse the award of attorney fees to
the state defendants, since this was the only cause of action on which the
ruling on the anti-SLAPP motion was in the state defendants’ favor.
We deny KIPP’s request for an award
of attorney fees under section 425.16, subdivision (c) on the ground that the
anti-SLAPP motion was frivolous. KIPP did
not request attorney fees in the trial court, and therefore has forfeited the
right to do so now.
DISPOSITION
The portion of the order on the
anti-SLAPP motion granting the motion as to the state defendants on the first
cause of action and awarding the state defendants attorney fees is
reversed. In all other respects, the
order on the anti-SLAPP motion is affirmed.
The parties to bear their own costs on appeal.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________,
Acting P. J.
ASHMANN-GERST
We concur:
______________________________,
J.
CHAVEZ
____________________________, J.
FERNS
are to the Code of Civil Procedure unless otherwise indicated.
SLAPP is an
acronym for strategic lawsuits against public participation. An order granting or denying a special motion
to strike under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd.
(a)(13).)
action was also brought against Lukin’s private company, Lukin &
Associates, Inc., which has filed an answer and is not a party to these
appeals. While the appeals were pending,
Whitman passed away on October 12, 2012.
The parties have reached a settlement agreement regarding Whitman.
