Leiba v. Gann CA4/3

Filed 6/3/21 Leiba v. Gann CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

NED LEIBA,

Plaintiff and Respondent, G058922

v. (Super. Ct. No. 30-2019-01090586)

GREGG GANN, OPINION

Defendant and Appellant;

XAVIER BECERRA, as Attorney General, etc.,

Respondent.

Appeal from an order of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed. The Torrey Firm and Rebecca L. Torrey; Messner Reeves, Andrew S. Hollins and Alexander E. Janvelian; Freeman Mathis & Gary, Allen E. Sattler and Ryan A. Baggs for Defendant and Appellant. Law Office of Ellsworth Vines, Ellsworth Vines and Henry Vines for Plaintiff and Respondent Ned Leiba.

Xavier Becerra, Attorney General, Tania M. Ibanez, Senior Assistant Attorney General, James M. Toma and Joseph N. Zimring, Deputy Attorneys General, for Respondent Attorney General. * * * Ned Leiba brought a derivative complaint against Gregg Gann for, among other things, misusing charitable assets to enrich himself. Gann responded by filing a special motion to strike the operative complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion).1 The trial court determined the causes of action did not arise from protected activity and denied the anti-SLAPP motion. We agree and affirm the court’s order. FACTS Leiba filed the derivative lawsuit as a director of Westview Services, Inc. (Westview), a charitable public benefit corporation. The operative complaint (complaint) asserted five causes of action: breach of fiduciary duty, abuse of control, corporate waste, unjust enrichment, and breach of charitable trust. Specifically, the complaint asserted Gann, as Westview’s director and chief executive officer, engaged in self-dealing, paid himself excessive compensation, and engaged in conduct in conflict with Westview’s best interests. It repeatedly alleged Gann was not acting in the corporation’s best interests, but rather in his own self-interest. It contended Gann violated nonprofit laws, Westview’s bylaws, and charity tax rules. The complaint also alleged Gann failed to allow the board of directors to review his employment agreement, improperly took control of the board, engaged in conflicts of interest, and planned to convert charitable assets for his own personal enrichment. Finally, it stated that Gann sought an additional one million dollars from the charity to facilitate his retirement.