Stein v. Tri-City Healthcare District et al, No. 3:2012cv02524 - Document 110 (S.D. Cal. 2014)
Court Description: ORDER Denying Defendants' 58 64 Special Motions to Strike. Signed by Judge Barry Ted Moskowitz on 2/14/2014. (rlu)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STEVEN D. STEIN, 13 Plaintiff, 14 15 16 v. Case No. 3:12 CV 2524 BTM BGS ORDER DENYING DEFENDANTS’ SPECIAL MOTIONS TO STRIKE TRI-CITY HEALTHCARE DISTRICT, et al. 17 18 Defendants. 19 20 21 On November 6, 2013, Defendants Tri-City Healthcare District (“Tri-City”) 22 and Larry B. Anderson (“Anderson”) moved to strike Plaintiff’s thirteenth and 23 fourteenth causes of action for false light and blacklisting under California’s Anti- 24 25 26 SLAPP statute, Cal. Code Civ. Pro. § 425.16(a). (Docs. 58, 64). For the reasons discussed below, the motions are DENIED. 27 28 1 1 2 BACKGROUND Plaintiff Steven D. Stein has sued his former employer, Defendant Tri-City 3 4 Healthcare District, and its CEO, Defendant Larry B. Anderson, for wrongful 5 termination. (First Amended Complaint (“FAC”) ¶ 11, 12, 23). 6 In August 2009, Plaintiff was hired by Tri-City to serve as Senior Vice 7 8 President of Legal Affairs and Chief Compliance Officer. (FAC ¶ 9). Plaintiff was 9 diagnosed with Irritable Bowel Syndrome (“IBS”) in late 2010, sought and received 10 11 treatment, but continued to suffer from IBS through 2011, requiring him to work 12 from home and take approved time off. (FAC ¶¶ 13-15). Plaintiff alleges that in early 13 2012 Defendant Anderson began to make derogatory comments regarding Plaintiff, 14 15 reduced his role at Tri-City by refusing to meet with Plaintiff or heed his legal 16 advice, undermined Plaintiff’s authority, instructed him to withhold information 17 from the Board of Directors, and eventually terminated him. (FAC ¶¶ 16-17, 21-25). 18 19 Stein filed a complaint on October 17, 2012. (Doc. 1). On June 3, 2013, the 20 Court denied Defendants’ motion to dismiss. (Doc. 19). Three days later, San Diego 21 Union Tribune reporter Aaron Burgin e-mailed Tri-City Senior Vice President and 22 23 Chief Marketing Officer David Bennett, seeking comment on the denial of 24 Defendants’ motion to dismiss. (Decl. of David M. Bennett, Ex. A). Bennett replied: 25 In the referenced decision by the Court, the court simply holds that Mr. Stein has pled a case and NOT that he HAS 26 27 28 2 a case at this time. In point of fact, Mr. Stein’s case has NO merit. In fact, to this point, on May 8, 2013, Judge Irving of the California Unemployment Insurance Appeals Board found that Mr. Stein abandoned or materially breached material duties, and as a result, his employment was terminated for misconduct. Further, Mr. Stein is a disgruntled former employee who has a long history of being a disgruntled employee. 1 2 3 4 5 6 7 (Decl. of David M. Bennett, Ex. A) (emphasis added). Plaintiff notes that the 8 Insurance Appeal Board later reversed its decision and found Stein had not been 9 10 terminated for misconduct and that he was eligible for unemployment benefits. 11 12 13 On June 7, 2013, the Union Tribune published an article discussing the law suit and included Tri-City’s statement that characterized Stein as “a disgruntled 14 former employee who has a long history of being a disgruntled employee.” (Decl. of 15 David M. Bennett, Ex. B). As a result, Stein amended his complaint to include 16 17 actions for false light and blacklisting. (Doc. 50; FAC ¶¶ 124-44).1 In response, 18 Defendants Tri-City and Anderson moved to strike Plaintiff’s false light and 19 blacklisting claims under California’s Anti-SLAPP law, Cal. Code Civ. Pro. § 20 21 425.16. (Docs. 58, 64). 22 23 24 1 Plaintiff’s claims for false light and blacklisting are limited to one sentence in the email: “Further, Mr. Stein is a disgruntled former employee who has a long history of 26 being a disgruntled employee.” Plaintiff is not pursuing a claim for any other part of 27 the e-mail. (Doc. 50; FAC ¶¶ 124-44) 25 28 3 1 LEGAL FRAMEWORK 2 I. California’s Anti-SLAPP Law 3 California enacted its Anti-SLAPP2 law in response to the “disturbing increase 4 5 in lawsuits brought primarily to chill the valid exercise of the constitutional rights of 6 freedom of speech and petition for the redress of grievances.” Cal. Code Civ. Pro. § 7 8 425.16(a). § 425.16 provides in relevant part: 9 (b)(1) 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. 10 11 12 13 14 15 (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. 16 17 18 .... 19 (e) As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any 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 20 21 22 23 24 25 26 27 2 SLAPP stands for “Strategic Lawsuits Against Public Participation.” 28 4 1 2 3 4 5 by law, (3) 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 interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. 6 Courts apply a two part test to determine whether an action is subject to an 7 8 Anti-SLAPP special motion to strike. Navellier v. Sletten, 29 Cal.4th 82, 85, 88 9 (2002). First, the defendant must establish that “the challenged cause of action is one 10 11 arising from protected activity.” Id. at 88. Activity is protected if it falls within the 12 categories outlined in § 425.16(e). Id. Notably, subsection (e)(2) protects statements 13 “made in connection with an issue under consideration or review by a . . . judicial 14 15 body.” While the statement may be made outside of court and published, see, e.g., 16 Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal.App.4th 855, 862-64 17 (1995), Braun v. Chronicle Publishing Co., 52 Cal.App.4th 1036, 1046-47 (1997), it 18 19 must nonetheless be “relate[d] to the substantive issues in the litigation and [be] 20 directed to persons having some interest in the litigation,” City of Costa Mesa v. 21 D’Alessio Investments, LLC, 214 Cal.App.4th 358, 373 (2013) (citing Neville v. 22 23 24 25 Chudacoff, 160 Cal.App.4th 1255, 1266 (2008)); accord Paul v. Friedman, 95 Cal.App.4th 853, 866 (2002). Once a defendant makes a threshold showing that the act in question is 26 27 protected, the burden shifts to the plaintiff. To resist the special motion to strike, the 28 5 1 2 plaintiff must establish “a probability of prevailing on the claim.” Navellier, 29 Cal.4th at 88. The plaintiff meets this requirement if he has “stated and substantiated 3 4 a legally sufficient claim.” Id. at 88-89 (internal quotation marks and citation 5 omitted); see also Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 821 (2002) 6 (“Put another way, the plaintiff ‘must demonstrate that the complaint is both legally 7 8 sufficient and supported by a sufficient prima facie showing of facts to sustain a 9 favorable judgment if the evidence submitted by the plaintiff is credited.’” (quoting 10 11 Matson v. Dvorak, 40 Cal.App.4th 539, 548 (1995)). 12 II. False Light 13 An action for false light invasion of privacy exists when defendant “gives 14 15 publicity to a matter concerning another that places the other before the public in a 16 false light . . . if (a) the false light in which the other was placed would be highly 17 offensive to a reasonable person, and (b) the actor had knowledge of or acted in 18 19 reckless disregard as to the falsity of the publicized matter and the false light in 20 which the other would be placed.” Restatement Second of Torts § 652E. See also 21 Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1, 24 (1994) (“California 22 23 common law has generally followed Prosser's classification of privacy interests as 24 embodied in the Restatement.”); Fellows v. National Enquirer, Inc., 42 Cal.3d 234, 25 238-39 (1986) (recognizing the false light tort in California and noting that the 26 27 publication at issue need not be defamatory, but often will be). 28 6 1 2 Comment C to the Restatement clarifies that the “highly offensive” element is met “when the defendant knows that the plaintiff, as a reasonable man, would be 3 4 justified in the eyes of the community in feeling seriously offended and aggrieved by 5 the publicity.” Minor inaccuracies will not normally be highly offensive. For 6 example, an incorrect statement of someone’s address or starting date of employment 7 8 would rarely if ever rise to the level of being “highly offensive to a reasonable 9 person.” But “serious offense may reasonably be expected” when there is “a major 10 11 misrepresentation of [plaintiff’s] character, history, activities or beliefs.” 12 III. Blacklisting 13 California Labor Code §§ 1050, 1054 impose liability on “[a]ny person . . . 14 15 who, after having discharged an employee from the service of such person or after an 16 employee has voluntarily left such service, by any misrepresentation prevents or 17 attempts to prevent the former employee from obtaining employment.” 18 19 20 21 22 23 IV. The Litigation Privilege The Litigation Privilege, Cal. Civil Code § 47(b)(2), provides an absolute defense to defamation and all other torts except malicious prosecution. Silberg v. Anderson, 50 Cal.3d 205, 212 (1990). The privilege “applies to any communication 24 (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other 25 participants authorized by law; (3) to achieve the objects of the litigation; and (4) 26 27 that have some connection or logical relation to the action.” Id. 28 7 1 2 The privilege exists “to afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort 3 4 actions.” Id. at 213 (citations omitted). Notably, the privilege “applies to any 5 publication required or permitted by law in the course of a judicial proceeding to 6 achieve the objects of the litigation, even though the publication is made outside the 7 8 courtroom and no function of the court or its officers is involved.” Id. at 212. See 9 also Action Apartments Ass’n, Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1241 10 11 (2007) (“The privilege is not limited to statements made during a trial or other 12 proceedings, but may extend to steps taken prior thereto, or afterwards.” (internal 13 quotation marks and citation omitted)); Weiland Sliding Doors & Windows, Inc. v. 14 15 Panda Windows & Doors, LLC, 814 F. Supp. 2d 1033, 1040-41 (S.D. Cal. 2011) 16 (“[T]he litigation privilege can apply to out-of-court statements to nonparties who 17 have a substantial interest in the outcome of the pending litigation.” (internal 18 19 quotation marks and citation omitted)); Healey v. Tuscany Hills Landscape and 20 Recreation Corp., 137 Cal.App.4th 1, 5-6 (2006) (applying litigation privilege to 21 letter from homeowner association to its members discussing pending litigation 22 23 24 25 between association and individual homeowner). Additionally, the requisite “connection or logical relation” between the communication and the litigation must be a “functional connection.” Rothman v. 26 27 Jackson, 49 Cal.App.4th 1134, 1146 (1996). The communication, whether it takes 28 8 1 2 the form of a court document, a letter from an attorney, or a public statement, “must function as a necessary or useful step in the litigation process and must serve its 3 4 purposes.” Id. Thus, the party asserting the privilege must do more than show that 5 the statement’s content is related to the subject of the litigation. Id. 6 Moreover, the “objects of litigation” prong is limited to legally cognizable 7 8 ends and does not include a general “desire to be vindicated in the eyes of the 9 world.” Id. at 1147-48. Accordingly, “the litigation privilege should not be extended 10 11 to ‘litigating in the press’” because it does not advance the purpose of the privilege -- 12 uninhibited access to the courts -- and it damages the justice system by poisoning 13 jury pools and bringing the bench and bar into disrepute. Id. at 1139, 49 (denying 14 15 application of the litigation privilege to attorney’s statement made at a press 16 conference accusing opposing counsel of engaging in extortion). See also Susan A. 17 v. County of Sonoma, 2 Cal.App.4th 88, 92, 95-96 (1991) (denying application of 18 19 20 21 22 23 the litigation privilege to psychologist’s disclosure of his impressions of his client to reporter). V. The Reporter’s Privilege The Reporter’s Privilege, Cal. Civil Code § 47(d)(1), provides a defense for “a 24 fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) 25 legislative, or (C) other public official proceeding, or (D) of anything said in the 26 27 course thereof, or (E) of a verified charge or complaint made by any person to a 28 9 1 2 public official, upon which complaint a warrant has been issued.” A newspaper and its website are “‘public journal[s]’ within the meaning of this statute.” Carver v. 3 4 Bonds, 135 Cal.App.4th 328, 351 (2005) (citing Colt v. Freedom Communications, 5 Inc., 109 Cal.App.4th 1551, 1555, 58 (2003)). 6 DISCUSSION 7 8 Defendants have moved to strike Plaintiff’s actions for false light and 9 blacklisting under California’s anti-SLAPP law. Cal. Code Civ. Pro. § 425.16. The 10 11 Court must first determine whether the conduct underlying the complaint is protected 12 by the Anti-SLAPP law. Navellier, 29 Cal.4th at 88. If it is, then the Court must 13 decide whether Plaintiff has “stated and substantiated a legally sufficient claim” for 14 15 false light and blacklisting. Id. 16 I. Whether Defendants’ Statement is Protected 17 California Code of Civil Procedure § 425.16(e)(2) protects “ any written or 18 19 oral statement or writing made in connection with an issue under consideration or 20 review by a legislative, executive, or judicial body.” In this case, Tri-City was 21 prompted for comment by the press when their motion to dismiss Plaintiff’s 22 23 complaint was denied. Tri-City responded that “Mr. Stein is a disgruntled former 24 employee who has a long history of being a disgruntled employee.” While the 25 comment is disparaging, it does relate to the substantive issue of the underlying case: 26 27 whether Plaintiff was wrongfully terminated. Defendants could conceivably argue 28 10 1 2 that Plaintiff quit or was lawfully terminated because of his long-running dissatisfaction with his employment. In context, Tri-City’s statement is an attack on 3 4 the merits of Plaintiff’s case, and is thus sufficiently related to the substantive issues 5 in question. See City of Costa Mesa, 214 Cal.App.4th at 373. 6 Moreover, the communication was directed to persons that have an interest in 7 8 the litigation: the San Diego Union Tribune and, through that paper, the public at 9 large. While not every dispute between a public entity and a former employee will 10 11 generate issues of public concern, some cases will do exactly that. Plaintiff has 12 accused Tri-City Healthcare District of wrongfully terminating him because of a 13 disability and retaliating against him for attempting to stop Tri-City from accepting 14 15 illegal kickbacks. These allegations are clearly matters of public concern. 16 Defendant’s communication was therefore “directed to persons having some interest 17 in the litigation.” Id. at 373. 18 19 20 21 22 23 The Court finds that Tri-City’s statement falls within the broad ambit of protected activity under § 425.16(e)(2). II. Whether Plaintiff has a Legally Sufficient Claim Plaintiff has alleged that Tri-City’s statement that he had “a long history of 24 being a disgruntled employee” constitutes false light and blacklisting. The Court 25 finds that Plaintiff has sufficiently “stated and substantiated” his claims. Navellier, 26 27 29 Cal.4th at 88-89. Plaintiff need not prove his allegations at this time; he merely 28 11 1 2 needs to establish that “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the 3 4 5 6 evidence submitted by the plaintiff is credited.” Wilson, 28 Cal.4th at 821. A. Whether Defendants’ Statement is Actionable As a threshold matter, the Court rejects Defendants’ argument that Tri-City’s 7 8 statement is not actionable. Defendants first argue that calling someone disgruntled 9 would not harm their reputation. See Jewett v. IDT Corp., 04-1454 (SRC), 2007 WL 10 11 2688932 at *9 (D.N.J. Sept. 11, 2007); Shearin v. E.F. Hutton Group, Inc., 652 A.2d 12 578, 595-96 (Del. Ch. 1994). Additionally, Defendants argue that whether or not 13 someone is disgruntled is a matter of opinion, not fact, and thus not defamatory as a 14 15 matter of law. See Dworin v. Deutesch, 06 Civ. 13265 (PKC), 2008 WL 508019 at 16 *8 (S.D.N.Y. Feb. 22, 2008); Simas v. First Citizens’ Fed. Credit Union, 63 17 F.Supp.2d 110, 117 (D. Mass. 1999). 18 19 This Court need not decide whether the allegation that a former employee was 20 “disgruntled,” standing alone, could be a statement of fact that would harm a 21 plaintiff’s reputation, and thus rise to the level of being defamatory. In this case, 22 23 Defendant Tri-City went one step further when its representative replied to a reporter 24 that Plaintiff had “a long history of being a disgruntled employee.” A reasonable 25 person would understand this to mean that Plaintiff had a pattern of dissatisfaction 26 27 and complaint. Whether or not such a pattern exists can be objectively proven or 28 12 1 2 disproven, and it is thus, a matter of fact, not opinion. See generally Carver, 135 Cal.App.4th at 344 (citations omitted) (“A statement is not defamatory unless it can 3 4 5 6 reasonably be viewed as declaring or implying a provably false factual assertion.”). Moreover, the Court finds that this allegation could work a substantial harm to Plaintiff’s professional reputation. A reasonable employer could clearly be 7 8 influenced in its hiring decision upon learning that an applicant had “a long history 9 of being a disgruntled employee.” Prospective employers would certainly be 10 11 reluctant to hire an employee with “a long history of being a disgruntled employee.” 12 The Court concludes that Defendants’ statement is actionable as alleged. Having 13 done so, the Court must now determine whether a jury could reasonably find each of 14 15 16 17 the elements for false light and blacklisting if all of Plaintiff’s evidence were accepted as true. B. Whether Plaintiff has Stated a Prima Facie Case 18 19 To establish a claim for false light, Plaintiff must show that Defendant 20 published a matter concerning him with knowledge or reckless disregard of the 21 falsity of the publicized matter that placed him before the public in a false light 22 23 offensive to a reasonable person. See Restatement Second of Torts § 652E. To 24 prevail on a claim for blacklisting, Plaintiff must show Defendant made a 25 misrepresentation with the purpose of preventing Plaintiff from obtaining 26 27 employment after Plaintiff was discharged from or voluntarily left his employment 28 13 1 2 with Defendant. California Labor Code §§ 1050, 1054. To determine whether these elements have been met, the Court looks to “the pleadings, and supporting and 3 4 opposing affidavits stating the facts upon which the liability or defense is based.” 5 Cal. Code Civ. Pro. § 425.16(b)(2).3 6 Stein alleges and is willing to testify that he had no history of being 7 8 disgruntled and that Anderson knew Stein personally from prior work together. 9 (Stein Decl. ¶ 5). Plaintiff also contends that even if Anderson was not the force 10 11 behind the e-mail, Anderson’s knowledge can be imputed to Tri-City because he was 12 the CEO at the time. Moreover, Stein asserts that there is no information in his 13 employment file which would allow anyone to conclude he was disgruntled. (Id.). 14 15 16 Stein contends that, to the contrary, his work was praised and he was awarded multiple salary increases during his tenure. (Id.). 17 Plaintiff has also alleged that he was personally offended by Defendants’ 18 19 20 21 22 23 24 25 26 27 statement and that he has had difficulty obtaining employment after the statement 3 California’s Anti-SLAPP law puts Plaintiff to his proofs before he can conduct discovery, thereby limiting the available evidence. When a special motion to strike is brought in federal court based on an “alleged failure of proof, the motion must be treated in the same manner as a motion [for summary judgment] under Rule 56,” which normally requires that the parties be given time to complete discovery. Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d 973, 983, 85 (C.D. Cal. 1999) (cited with approval by Metabolife Int’ll, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001)). In this case, Defendants have argued that the statement in question is nonactionable and that a privilege applies, but they have not directly contested Plaintiff’s proofs. Accordingly, the Court finds that it can rule on the special motion to strike at this time based on the pleadings and declarations filed by the parties. 28 14 1 was published. (Id. at ¶¶ 5, 8-11). 2 Defendants do not contest these allegations in their motion papers, but 3 4 presumably would at trial.4 The Court concludes that if Plaintiff testified to the above 5 and the jury credited the testimony, the jury could reasonably find that Defendants’ 6 statement met each of the elements for false light and blacklisting. 7 8 C. Whether Defendants’ Statement is Privileged 9 Despite these conclusions, Plaintiff must nonetheless also show that no 10 11 applicable defense would bar his claim for relief as a matter of law. Defendants have 12 asserted both the Litigation Privilege and the Reporter’s Privilege as defenses to their 13 statement. 14 1. The Litigation Privilege 15 The Litigation Privilege provides an absolute defense for “any communication 16 17 (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other 18 19 participants authorized by law; (3) to achieve the objects of the litigation; and (4) 20 that have some connection or logical relation to the action.” Silberg, 50 Cal.3d at 21 212. The first two elements can clearly be established. A statement made outside a 22 23 24 judicial proceeding regarding the proceeding can meet the first element. Id. Additionally, there is no dispute that the statement was made by Defendants, and 25 Defendants have filed evidentiary objections to Stein’s declaration, arguing that the 27 statements made therein are inadmissible. The court has ruled on these objections in a separate order. 26 4 28 15 1 2 thus satisfies the second element of the test. However, the third and fourth elements are more problematic for Defendants. 3 4 5 First, the statement was made to a reporter that did not have the type of substantial interest in the litigation that the privilege is designed to further. Courts 6 generally require a specific relationship between the provider and recipient of the 7 8 information in question. See, e.g., Healey, 137 Cal.App.4th at 5-6 (members of 9 homeowners association suing another member had a substantial interest in the case); 10 11 Weiland Sliding Doors, 814 F. Supp. 2d at 1040-41 (customers of company sued for 12 patent infringement had a substantial interest in the case); Susan A. v. County of 13 Sonoma, 2 Cal.App.4th 88, 93-94 (1991) (declining to extend privilege to 14 15 psychologist’s statement to reporter because “the privilege does not apply where 16 publication is to persons in no way connected with the proceeding.”) The press and 17 public may well have a generalized interest in knowing about a law suit against a 18 19 20 21 22 23 public entity, but they lack a substantial interest comparable to those recognized in Weiland, Healy, and Susan A. Second, Tri-City’s statement that Plaintiff had a history of being disgruntled lacks a “functional connection” to the case and was not made to achieve a valid 24 object of the litigation. See Rothman, 49 Cal.App.4th at 1146-48. As discussed 25 earlier, the statement in question refers to facts which, if proven, could show that 26 27 Defendants had a legitimate and legal basis for terminating Plaintiff. If the statement 28 16 1 2 was made in an answer or at a hearing, it would clearly “function as a necessary or useful step in the litigation process.” Id. But Defendants have failed to explain how 3 4 Tri-City’s statement to a reporter materially advances their case. The mere “desire to 5 be vindicated in the eyes of the world” is not a legitimate object of the litigation. Id. 6 See also City of Costa Mesa v. D'Alessio Investments, LLC, 214 Cal.App.4th 358, 7 8 381-82 (2013) (“The test ‘cannot be satisfied by communications which only serve 9 interests that happen to parallel or complement a party's interests in the litigation,’ 10 11 12 13 14 15 including vindication in the court of public opinion.”). Third, application of the litigation privilege in this case would not advance the purpose of the privilege, which exists to enable and encourage access to the courts without fear of reprisal. See Silberg, 50 Cal.3d at 213. “[T]he litigation privilege 16 should not be extended to ‘litigating in the press’” because it does not advance the 17 purpose of the privilege -- uninhibited access to the courts -- and it damages the 18 19 justice system by poisoning jury pools and bringing the bench and bar into disrepute. 20 Rothman, 49 Cal.App.4th at 1139, 49 (denying application of the litigation privilege 21 to attorney’s statement made at a press conference accusing opposing counsel of 22 23 engaging in extortion). See also Susan A., 2 Cal.App.4th at 92, 95-96 (denying 24 application of the litigation privilege to psychologist’s disclosure of his impressions 25 of his client to reporter). 26 27 Like the statements in Rothman and Susan A., Defendants’ statement that 28 17 1 2 Plaintiff had a history of being disgruntled did not advance any legitimate litigation interest of the parties. Rather, it was an attempt to move the dispute outside the 3 4 courtroom and into the press. Litigants are generally free to speak with the press and 5 public about lawsuits, but they are not entitled to the protection of the litigation 6 privilege when they do so. Like any other speaker seeking publication, they are 7 8 9 10 11 subject to the rules of tort law and assume the risk of a defamation suit. 2. The Reporter’s Privilege Defendant Anderson also raises the Reporter’s Privilege, which provides a 12 defense for (1) a fair and true report in, or communication to, (2) a public journal of 13 (3) a judicial proceeding or of anything said in the course thereof. See Cal. Civil 14 15 16 17 Code § 47(d)(1); Carver, 135 Cal.App.4th at 351 (noting newspapers qualify as public journals). On these facts, the Reporter’s privilege is inapplicable. Defendants’ statement 18 19 was not a fair and true communication of something said or considered in the course 20 of a judicial proceeding. Defendant argues that the statement was made in response 21 to a request for comment on the Court’s denial of Defendant’s motion to dismiss. 22 23 The motion to dismiss was focused on one issue: whether attorney-client privilege 24 would bar admission of evidence Plaintiff needed to prove his retaliation claim. 25 (Docs. 7, 13, 14, 19). Most of Defendant’s e-mail meets this test, but the last 26 27 sentence alleging that Plaintiff had a history of being disgruntled had no relation the 28 18 1 2 motion to dismiss. Accordingly, the privilege is inapplicable and the defense must fail. 3 4 III. Attorney’s Fees 5 Defendants have requested that the Court award them attorney’s fees incurred 6 in connection with bringing this motion. Similarly, Plaintiff has indicated that, if he 7 8 prevails, he intends to bring a motion for attorney’s fees incurred in defending 9 against the motion. 10 11 Cal. Code Civ. Pro. 426.16(c)(1) provides in relevant part: [I]n any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion. 12 13 14 15 16 17 For the reasons discussed above, the Court will deny Defendants’ motions to 18 19 strike. Defendant is not a prevailing party and thus cannot recover fees under the 20 statute. While Plaintiff has prevailed, the Court will not award fees to Plaintiff either 21 as it finds that the motions presented arguable issues of law and were brought in 22 23 24 25 good faith. CONCLUSION The Court concludes that the statement in question is protected activity under 26 27 California’s Anti-SLAPP statute, but that Plaintiff has nonetheless established a 28 19 1 2 sufficient “probability of prevailing on the claim.” Navellier, 29 Cal.4th at 88. Moreover, Defendants have failed to establish that any privileges are applicable to 3 4 bar Plaintiff’s claims. Accordingly, Defendants’ Special Motions to Strike are 5 DENIED. 6 7 8 IT IS SO ORDERED. 9 Dated: February 14, 2014 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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