Barker v. Fox & Associates: In Defamation Action, Court Reverses Order Denying Defendants' Anti-SLAPP Motion, Holding that Plaintiff Failed to Show Reasonable Probability of Success on the Merits

In Barker v. Fox & Associates (9/10/15) --- Cal.App.4th ---, the plaintiff worked as a caregiver for an elderly woman, first as a volunteer, and then as a paid employee. His employer stated in an email to a number of people that he had failed to follow instructions and placed him on probation. The plaintiff quit and filed suit for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The defendants filed an anti-SLAPP motion (Cal. Code Civ. Proc. section 425.16), which the trial court denied. The defendants appealed, and the Court of Appeal reversed, holding as follows:

To prevail on an anti-SLAPP motion, the moving party first must show that the cause of action arises from protected activity, i.e., "an act in furtherance of the right of free speech or petition." If the moving party makes this prima facie showing, the opposing party must show that it has a reasonable probability of success on the merits.

The defendants argued on appeal that the communications at issue were protected, and the plaintiff did not contest the point. The Court considered the matter resolved in favor of the defendants.

Turning its attention to the second prong of the test, the Court held that the plaintiff failed to show a reasonable probability of success on the merits. The allegedly defamatory statements did not constitute libel or slander per se. They were not defamatory on their face -- without the necessity of explanatory matter -- because they did not "suggest a lack of honesty, incompetence, or any reprehensible trait" on the plaintiff's part.

Because the alleged statements were not defamatory on their face, the plaintiff would have to prove actual damages in order to prevail. He failed to do so.

In addition, the allegedly defamatory statements were subject to the "common interest" privilege. The privilege extends to statements made:

without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. 

The plaintiff failed to show malice in that he failed to show that the statements were motivated by hatred or ill will toward him or that the defendant lacked grounds to believe that the statements were true.

The plaintiff's intentional infliction of emotional distress claim failed because he failed to show that the conduct at issue was "so extreme as to exceed all bounds of that usually tolerated in a civilized community" or "beyond mere insults, indignities, threats, hurt feelings or bad manners that a reasonable person is expected to endure." Further, the plaintiff failed to show that the conduct was "intended to inflict injury or engaged in with the realization that injury will result" or that he suffered severe emotional distress.

The plaintiff's negligent infliction of emotional distress claim failed because negligent infliction of emotional distress does not exist separate from the tort of negligence.

The opinion is available here.