Baughn v. Department of Forestry: Court of Appeal Affirms Denial of Anti-SLAPP Motion

There has been an up-tick over the last year in employment cases raising anti-SLAPP issues. See Park v. Board of Trustees of the California State University (2015) 239 Cal.App.4th 1258 (discussed here), Barker v. Fox & Associates (2015) 240 Cal.App.4th 333 (discussed here), Decambre v. Rady Children's Hospital (2015) 235 Cal.App.4th 1 (discussed here).

Baughn v. Department of Forestry and Fire Protection (Cal.App. 3/11/16, pub. 4/6/16) is another of these cases. The Department of Forestry and Fire Protection (Cal Fire) terminated Corey Baughn after another employee accused him of sexual harassment. Baughn appealed his termination to the State Personnel Board (SPB), and the parties settled the matter. Baughn later obtained temporary employment with the Ukiah Valley Fire District (Ukiah Valley). Concerned that Baughn's employment with Ukiah Valley would result in him being present at Cal Fire facilities with the person who had accused him of harassment, Cal Fire hand delivered a letter to Ukiah Valley demanding that Baughn not be present at Cal Fire's facilities. This led Ukiah Valley to terminate Baughn. 

Baughn and his union sued Cal Fire for breach of the written settlement stipulation that ended the SPB case, breach of the implied covenant of good faith and fair dealing, and intentional and negligent interference with prospective economic advantage. Cal Fire filed an anti-SLAPP motion against the union, arguing that the action arose from protected speech and that the union was not likely to succeed on the merits. The trial court denied the motion, Cal Fire appealed, and the Court of Appeal affirmed, holding as follows: 

To prevail on an anti-SLAPP motion, the defendant must show: (1) that the cause of action arises from an act of defendant in furtherance of its right of petition or free speech in connection with a public issue; and (2) the plaintiff has not made a prima facie showing that he or she will succeed on the merits. Protected conduct includes "any other [1] conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech [2] in connection with a public issue or an issue of public interest." Cal. Code Civ. Proc. 425.16(e)(4). 

Cal Fire failed to meet the first requirement because the decision to write and send the letter were not made “in connection with a public issue or an issue of public interest.” 

The issue raised in the letter did not concern a substantial number of people. It concerned the writer, the recipient, Baughn, and his earlier victim. At the very most, it concerned the defined set of Cal Fire firefighters who would use the same facility that Baughn would use in his employment with Ukiah Valley. This was a relatively small audience. 

The issue raised in the letter also did not concern a "written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law" under section 425.16(e)(2). Even if the letter concerned the SPB proceedings, those proceedings were no longer "under consideration" by the SPB or any other governmental entity. 

The trial court erred in awarding attorney fees to the union. A court may award attorney fees to a prevailing plaintiff only where it finds that the motion is frivolous or brought solely to cause delay. The trial court may no such finding here. The Court remanded for reconsideration of this issue. 

The opinion is available here.

Park v. Board of Trustees: Cal. Supreme Court Grants Review of Discrimination Case Raising Anti-SLAPP Issues

In Park v. Board of Trustees of the California State University (Cal.App. 8/27/15) (discussed here), the plaintiff alleged that the Board of Trustees of the California State University (CSU) discriminated against him based on his national origin when it denied his application for a tenured faculty position and consequently terminated him. The trial court denied CSU's motion to strike the complaint under CCP 425.16, the anti-SLAPP statute. The Court of Appeal reversed, holding that the plaintiff's allegations arose from the reviews and evaluations given to him in CSU's retention, tenure, or promotion (RTP) proceedings, and that those communications were protected.

The California Supreme Court granted review on December 16. The issue as stated on the Court's web site is as follows:

Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an "official proceeding authorized by law" (subd. (e) ) but does not seek relief against any participant in that proceeding based on his or her protected communications?

Park is case number S229728, and the Court's web page for it is here. As always, you can request electronic updates on the Court's web site.

Decambre v. Rady Children's Hospital: Court Affirms in Part and Reverses in Part Order Granting Anti-SLAPP Motion in Doctor's Action for Discrimination, Harassment, Retaliation, and Defamation

Over the last month, we have seen two cases dealing with anti-SLAPP motions in the employment law context. In Park v. Board of Trustees (8/27/15) --- Cal.App.4th --- (discussed here), a discrimination action, the Court held that a University's decision to deny tenure arose from protected communicative activity. The Court then remanded to the trial court for a determination of the plaintiff's likelihood of success on the merits. In Barker v. Fox & Associates (9/10/15) --- Cal.App.4th --- (discussed here), a defamation action, the court reversed an order denying the defendant's anti-SLAPP motion, finding that the plaintiff had waived his argument that the alleged statements were not privileged, and that the plaintiff had failed to show a reasonable probability of success on the merits.

Decambre v. Rady Children's Hospital (3/11/15, mod. 4/2/15) --- Cal.App.4th ---, is a third such case, which I missed when it came down earlier this year. The plaintiff was a doctor who sued several defendants, including the hospital where she worked, alleging discrimination, harassment, retaliation, wrongful termination, defamation, intentional infliction of emotional distress (IIED), and other causes of action. The trial court granted the defendants' anti-SLAPP motion to strike, finding that the defendants' decision not to renew the plaintiff's contract arose from the hospital's peer review process, which was protected as an official proceeding. The Court of Appeal affirmed in part and reversed in part, holding as follows:

Under the anti-SLAPP statute, Code of Civil Procedure section 425.16, and Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, hospital peer review proceedings constitute protected "official proceeding[s] authorized by law," and the defendants' decision not to renew the plaintiff's contract was the result of that process. The Court rejected the plaintiff's contention that there was no peer review because the defendants did not report their non-renewal to the Medical Board of California. The behavior that led to the decision not to renew did not involve a "medical disciplinary cause or reason," and no such report was required.

The defendants failed to meet their burden to show that the plaintiff's harassment, IIED, and defamation claims arose from protected activity. "The 'principal thrust or gravamen' of the plaintiff's claim determines whether section 425.16 applies," and the court must examine the alleged wrongful conduct, rather than the alleged damages, to determine that issue. Here, the trial court erred in looking to the plaintiff's alleged damages, rather than the defendants' conduct. Some of the conduct underlying the harassment and IIED claims occurred before the peer review process even began, and none of that conduct "occurred within the context of, or in furtherance of, the peer review proceedings." Similarly, the conduct underlying her defamation claim arose after the non-renewal decision and was not part of the peer review proceedings.

In contrast, the defendants did show that the plaintiff's discrimination, failure to prevent discrimination, retaliation, and wrongful termination claims all arose from the peer review process. The wrongful termination claim cannot succeed absent a termination -- the Court did not distinguish between a termination and a non-renewal -- and the FEHA claims cannot succeed absent an adverse employment action. The only adverse employment action alleged here was the non-renewal decision. The defendants' motive, even if discriminatory, did not change the fact that the alleged conduct arose from protected activity.

The defendant having shown that the conduct at issue arose from protected activity, the burden shifted to the plaintiff to show probable success on the merits. The plaintiff failed show that defendants' asserted reasons for the non-renewal were pretextual. She did not refute the defendants' reasons for non-renewal. Instead, she asserted that she "could establish sufficient facts" to prove her claims, and this was not sufficient to meet her burden. 

The plaintiff also asserted claims for violation of the Unfair Competition Law and the Cartwright Act, but I will not address those claims here. I also will not address the Court's holding on the trial court's order sustaining the defendants' demurrer to certain causes of action.

The opinion is available here. 

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.

Park v. Board of Trustees: On Anti-SLAPP Motion in Discrimination Action, University's Decision to Deny Tenure Arose from Protected Communicative Activity; Court Remands for Determination of Plaintiff's Probability of Success on the Merits

Park v. Board of Trustees of the California State University (8/27/15) --- Cal.App.4th ---, is one of those all-too-rare examples of a clearly written appellate opinion. It begins: 

Plaintiff Sungho Park sued his former employer, defendant Board of Trustees of the California State University (CSU), alleging that CSU discriminated against him based on his national origin when it denied his application for a tenured faculty position and consequently terminated him. Park’s complaint sought damages and an injunction awarding him a tenured position. CSU moved to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court denied the motion, concluding that Park’s claims did not arise from CSU’s communicative conduct related to the tenure review process, but rather from its allegedly discriminatory denial of tenure. Under the circumstances presented here, we conclude the gravamen of the complaint arises from protected activity and therefore reverse and remand with directions to the trial court to determine whether Park demonstrated a reasonable probability of prevailing on the merits of his claims.

The Court explained:

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.

CSU made a prima facie showing that its retention, tenure or promotion (RTP) policies qualified as protected activity in that they were "official proceeding authorized by law," and "the reviews and evaluations given to Park during the RTP process are therefore covered as statements or writings 'made in connection with an issue under consideration or review' in the RTP proceedings."

CSU also showed that Park's complaint arose from CSU's protected activity. The Court rejected Park's contention that his causes of action were based on “CSU’s conduct in denying Dr. Park’s tenure based on national origin,” rather then any communicative conduct by CSU. The gravamen of Park's complaint was CSU's refusal to grant him tenure, and was "entirely based on the evaluations of his performance and competency during the RTP proceedings."

Because the trial court found that CSU did not make the required prima facie showing, it did not determine whether Park had shown a reasonable probability of success on the merits. The Court remanded the case to the trial court to determine this issue.

The opinion is available here. 

Stenehjem v. Sareen: Court Finds that Pre-Litigation Demand Constitutes Extortion as a Matter of Law

In Stenehjem v. Sareen (6/13/14) --- Cal.App.4th ---, the plaintiff, Stenehjem, sued his former employer and its president and CEO, Sareen. Sareen cross-complained against Stenehjem for civil extortion. Sareen alleged that Stenehjem sent a prelitigation demand in which Stenehjem threatened to file false reports with federal authorities unless Sareen paid to settle Stenehjem's case. 

The trial court granted Stenehjem's special motion to strike under the anti-SLAPP statute, Sareen appealed, and the Court of Appeal reversed.

Following Flatley v. Mauro (2006) 39 Cal.4th 299, 305, the Court of Appeal found that Stenehjem's prelitigation demand constituted extortion as a matter of law that was not protected under the anti-SLAPP statute. Slip op. at 15-26. Among the factors that the Court found important were the fact that Stenehjem threatened to report Sareen to federal authorities for violation of the False Claims Act, and the alleged criminal activity that Stenehjem threatened to expose was "entirely unrelated to any alleged injury suffered by" Stenehjem. Slip op. at 20. The Court found it irrelevant that the extortionate demand did not make a specific monetary demand because the demand had to be viewed in the context of other communications between the parties, which did include a demand to pay money. Slip op. at 23.

The opinion is available here.

Mendoza v. Hamzeh: Attorney's Extortionate Demand Letter Not Protected Under Anti-SLAPP Statute

From time to time I have reported on employment cases in which attorneys have acted too zealously in representing their clients.  Mendoza v. Hamzeh (4/22/13) --- Cal.App.4th ---, is such a case.  

In 2009, an attorney (Hamzeh) sent a demand letter to an employer (Mendoza) threatening to file suit for unpaid wages and to report the employer to authorities for alleged fraud. In 2011, Mendoza filed suit against Hamzeh for civil extortion, intentional infliction of emotional distress, and violation of the Unfair Competition Law. The trial court denied Hamzeh's anti-SLAPP motion to strike and awarded attorney fees to Mendoza, holding that the demand letter was not a protected communication. The Court of Appeal affirmed, confirming that the demand letter was not protected, and the trial court did not abuse its discretion in awarding attorney fees to Mendoza. 

The anti-SLAPP statute does not apply to the threats at issue in Hamzeh's demand letter. Hamzeh threatened to report Mendoza “to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, [and] the Better Business Bureau,” and to disclose the alleged wrongdoing to Mendoza's customers and vendors if Mendoza did not pay “damages exceeding $75,000.” Regardless of whether Mendoza committed any crime or wrongdoing or owed Chow money, Hamzeh's threat to report criminal conduct to enforcement agencies and to Mendoza's customers and vendors, coupled with a demand for money, constitutes “criminal extortion as a matter of law,” as articulated in Flatley [v. Mauro (2006) 39 Cal.4th 299, 330]. 

Slip op. at 7.

The opinion is available here. 

Aber v. Comstock: Supervisor's Defamation Suit Against Employee Who Alleged Harassment Is Subject to Anti-SLAPP Motion to Strike

Just a quick note on this case, Aber v. Comstock (12/18/12, pub. 1/11/13) --- Cal.App.4th ---. Plaintiff Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees. One of the employee defendants, Michael Comstock, cross-complained against Aber, alleging claims for defamation and intentional infliction of emotional distress. Aber filed a special motion to strike the under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion and dismissed the cross-complaint, and the Court of Appeal affirmed, holding: 

1. The cross-complaint fell within the SLAPP statute because the assault allegations made to the police, the employer's HR department, and other third parties were "statements made in, or in connection with matters under review by, an official proceeding or body." Slip op. at 9-16. 
2. Comstock failed to demonstrate a likelihood of success on the merits.  Slip op. at 16-25. 

The opinion is available here.