Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC 07-469108
SIMONS, J.
Plaintiff Carolyn Burton appeals an order granting a motion to strike her libel cause of action under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) filed by defendants Frederick P. Furth (Furth), the Furth Firm LLP (Firm), Chalk Hill Estate Vineyards LLC, and Chalk Hill Estate Winery LLC. We conclude defendants failed to meet their burden of showing plaintiff’s libel claim arose from protected activity and reverse.
All undesignated statutory references are to the Code of Civil Procedure.
SLAPP is an acronym for “ ‘strategic lawsuits against public participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 (Navellier).)
The four defendants are collectively referred to as “defendants.”
BACKGROUND
Plaintiff joined the Firm as an attorney in 2001. During plaintiff’s tenure, the Firm litigated many complex cases, including several class actions against Wal Mart. At the end of 2005, the Firm successfully represented the prevailing parties in a California wage and hour class action against Wal Mart. The jury awarded $172 million to the prevailing parties, and the trial court granted a $65 million fee award to the Firm.
In the summer of 2006, plaintiff was co-lead counsel with Robert Bonsignore (Bonsignore) in two wage and hour class actions against Wal Mart, one pending in Massachusetts state court and the other consisting of over 20 class actions that were consolidated in multi-district litigation before the United States District Court for the District of Nevada. Bonsignore proposed to Wal Mart a global settlement of all pending wage and hour class actions, but the parties did not reach a settlement. Shortly thereafter, plaintiff learned that Furth, the Firm’s founder, was attempting to broker a global settlement that would have required Wal Mart to pay nearly all of the verdict and fees awarded in the California class action, while the remaining class actions would be settled cheaply and Furth would share in the fees from those cases. Plaintiff and Bonsignore opposed Furth’s proposed settlement, believing it was contrary to their ethical obligations to their clients. According to plaintiff, Furth became increasingly angry about plaintiff’s position on the issue during the fall of 2006.
On November 14, 2006, Furth sent the following e mail to all Firm employees: “GREETINGS: [¶] I LEARNED TODAY FROM WAL-MART’S COUNSEL, MIKE BENNETT, THAT THE JUDGE DISMISSED OUR CLASS ACTION CASE IN MASSACHUSETTS. I HAD ASKED MIKE BENNETT TO KEEP ME APPRISED OF DEVELOPMENTS IN MASSACHUSETTS SINCE NO ONE RUNNING THAT CASE AT [THE FIRM] EVER BOTHERS TO LET ME KNOW WHAT IS GOING ON. I AM REASSIGNING THE MASSACHUSETTS CASE AND ALL OTHER WAL-MART MATTERS TO JESSICA GRANT WHO WILL DIRECT ALL FURTHER PROCEEDINGS IN THESE MATTERS AS SHE DETERMINES IS IN THE BEST INTERESTS OF OUR CLIENTS AND THE CASE. [¶] FRED FURTH”
Plaintiff was left without any work to perform after the Wal Mart cases were transferred and she was not given any new work assignments. Plaintiff felt ostracized, and was officially terminated moments after she arrived at the Firm office on the Monday after Thanksgiving 2006.
Plaintiff sued defendants, alleging libel, breach of contract, promissory estoppel, wrongful termination, fraudulent misrepresentation, negligent misrepresentation, unjust enrichment, and accounting. Defendants filed an anti-SLAPP motion to strike plaintiff’s first cause of action for libel, which was based on Furth’s statements in his November 14, 2006 e mail. The trial court granted defendants’ motion. The court concluded the e mail contained statements made in connection with an issue under judicial review and plaintiff’s libel claim was barred by the litigation and common interest privileges.
DISCUSSION
The anti-SLAPP statute provides a “procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen).) In evaluating an anti-SLAPP motion, the court must engage in a two-step process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) The court first determines “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” (Navellier, supra, 29 Cal.4th at p. 88.) A defendant meets this burden by demonstrating that plaintiff’s action is premised on statements or conduct taken “ ‘in furtherance of the [defendant]’s right of petition or free speech under the United States [Constitution] or [the] California Constitution in connection with a public issue,’ as defined in the [anti-SLAPP] statute. (§ 425.16, subd. (b)(1).)” (Equilon, at p. 67.) If the defendant makes the requisite showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Ibid.)
An order granting an anti-SLAPP motion is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13); Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1262 (Neville).) We review the trial court’s decision de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In so doing, 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).)
I. “Arising From”
“A defendant who files a special motion to strike bears the initial burden of demonstrating that the challenged cause of action arises from protected activity. [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669.) Our Supreme Court has noted this requirement is not always easily met. (Equilon, supra, 29 Cal.4th at p. 66.) “A claim does not arise from constitutionally protected activity simply because it is triggered by such activity or is filed after it occurs. [Citation.]” (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1568 (World Financial).) Rather, “the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) An attorney may bring an anti-SLAPP motion against a cause of action arising from petitioning activity undertaken on behalf of a client. (See Rusheen, supra, 37 Cal.4th at p. 1056.)
A moving defendant satisfies its burden by showing that the conduct or statement forming the basis of the plaintiff’s claim falls within one of the four categories of protected activity set forth in section 425.16, subdivision (e). (Equilon, 29 Cal.4th at p. 66.) That provision states: “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 by law; (3) any written or oral statement or writing made in connection with an issue of public interest; (4) or 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.” (§ 425.16, subd. (e).)
Defendants contend that Furth’s e mail is protected activity under section 425.16, subdivisions (e)(2) and (4). We disagree.
A. Section 425.16, Subdivision (e)(2)
Section 425.16, subdivision (e)(2) “does not accord anti-SLAPP protection to suits arising from any act having any connection, however, remote, with an official proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 (Paul).) Although “we are required to construe the [anti-SLAPP] statute broadly” (Id. at p. 864), “it is insufficient to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection with an issue under review in that proceeding.” (Id. at p. 867.) Thus, statements that simply mention judicial proceedings are not covered by the anti-SLAPP statute. Cases construing the scope of section 425.16, subdivision (e)(2) hold “that a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.” (Neville, supra, 160 Cal.App.4th at p. 1266, fn. omitted.) “As used in section 425.16[, subdivision] (e)(2), a matter is ‘under consideration’ if it ‘is one kept “before the mind”, given “attentive thought, reflection, meditation.” [Citation.] A matter under review is one subject to “an inspection, examination.” ’ [Citation.]” (Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1085.)
Defendants argue the e mail is covered by section 425.16, subdivision (e)(2), because it “is directly related to, and written in connection with, several issues in an active case before a judicial body.” They rely on Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482 (Taheri), Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043 (CSC), and Neville, supra, 160 Cal.App.4th 1255. We find that none of these cases supports defendants’ position.
In CSC, CSC and Staff Pro were competitors in the business of providing event staffing services. (CSC, supra, 152 Cal.App.4th at p. 1047.) During litigation between them, the president of Staff Pro, Meredith, sent an e mail to nine of Staff Pro’s clients in which he discussed the litigation and stated that CSC paid former Staff Pro employees “ ‘to make false statements in declarations [which]... were then presented to Staff Pro’s clients in an effort to create doubt in Staff Pro’s clients’ minds.’ ” (Id. at p. 1050.) Meredith stated the purpose of the e mail was to explain the nature of a pending lawsuit to the recipients, “ ‘to inform them of the status of this case and the recent court rulings, to give them some idea as to how their testimony and production of documents... had been used, to give these persons some level of comfort that it was unlikely any further testimony would be needed from them... and, lastly, to apologize for any disruption to their business that occurred as a result of being “dragged into” the [litigation] because of their connection to Staff Pro.’ ” (Ibid.) CSC filed another action against Staff Pro and Meredith alleging, inter alia, defamation based on Meredith’s statements in the e mail. (Id. at pp. 1050-1051.) The trial court granted Staff Pro and Meredith’s special motion to strike under the anti-SLAPP statute. (Id. at p. 1051.) The Court of Appeal affirmed, finding the e mail fell within the parameters of section 425.16, subdivision (e)(2), because it constituted a litigation update that described the parties’ contentions and court rulings, and was directed to individuals who had some involvement in that litigation. (Id. at p. 1055.)
In Neville, Maxsecurity fired Neville amid allegations that he misappropriated Maxsecurity’s customer lists and secretly solicited its customers to start a competing business. (Neville, supra, 160 Cal.App.4th at p. 1259.) Chudacoff, Maxsecurity’s attorney, sent a letter to Maxsecurity’s customers accusing Neville of breach of contract and misappropriation of trade secrets, and suggesting to the customers they should not do business with Neville to avoid involvement in litigation. (Id. at pp. 1259-1260.) Several months later, Maxsecurity sued Neville for breach of contract and misappropriation of trade secrets, and Neville filed a cross-complaint against Maxsecurity and Chudacoff alleging, inter alia, defamation. (Id. at p. 1260.) Chudacoff filed an anti-SLAPP motion that was granted. (Id. at pp. 1260-1261.) The Court of Appeal affirmed, finding the letter related directly to Maxsecurity’s claims that Neville had misappropriated the customer lists, and the letter was directed to Maxsecurity’s current and former customers—persons who could have “an interest in the dispute as potential witnesses to, or unwitting participants in, Neville’s alleged misconduct.” (Id. at pp. 1267-1268.) The letter also was an attempt to prevent further misuse of Maxsecurity’s proprietary information and thereby mitigate damages. (Id. at p. 1268.)
CSC and Neville cite Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1 (Healy). In Healy, a homeowners association filed an action against a homeowner, alleging she had wrongfully denied the association access across her property to conduct weed abatement to reduce a fire hazard on an adjacent piece of land. (Id. at p. 3.) The association sent a letter to residents of the development discussing the litigation and stating that the weed abatement had become more costly to the association because ingress and egress to the property was being prohibited by the homeowner. (Id. at pp. 3-4.) The homeowner filed a cross-complaint alleging the letter defamed her by falsely communicating to other residents that she was responsible for causing the association to incur additional costs. (Id. at pp. 3-4.) The association moved to strike the defamation cause of action under the anti-SLAPP statute, and the trial court denied the motion. (Id. at p. 4.) The Court of Appeal reversed, finding the letter was protected because one of its purposes was to inform association members of pending litigation involving the association. (Id. at pp. 5-6.)
In Taheri, a law firm sued Evans, an attorney, asserting causes of action for intentional interference with prospective economic advantage and intentional interference with business relations. (Taheri, supra, 160 Cal.App.4th at p. 485.) The law firm alleged it had successfully represented a client, Sorokurs, for 18 months when, “ ‘without warning and for cause unknown,’ ” the client discharged the firm while still owing it more than $500,000 in fees. (Ibid.) On the same day, the firm received a letter from Evans saying he was Sorokurs’s new counsel in the matters in which the firm had been representing Sorokurs. (Ibid.) The firm alleged Evans knew of the economic relationship between the firm and Sorokurs, and induced Sorokurs to terminate his relationship with the firm by promising “ ‘unobtainable and ethically improper litigation objectives,’ ” including the promise that Evans would be able to enforce a settlement agreement to which Sorokurs was a party. (Id. at pp. 485-486.) Evans brought an anti-SLAPP motion, arguing that his actions were protected because they took place in connection with pending litigation in which the firm’s interests were allegedly interfered with by Evans’s filings, letters, and other communicative actions. (Id. at p. 486.) The Court of Appeal agreed, finding that the causes of action arose from Evans’s communications regarding pending litigation to a party to that litigation, Sorokurs, and from Evans’s conduct in enforcing the settlement agreement on Sorokurs’s behalf. (Id. at p. 489)
In sum, CSC, Neville, Taheri and Healy stand for the proposition “that a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in [pending or contemplated] litigation and is directed to persons having some interest in the litigation.” (Neville, supra, 160 Cal.App.4th at p. 1266, fn. omitted; see Id. at pp. 1259, 1267-1268.) Plaintiff’s libel cause of action arises from Furth’s e mail, and in particular, his statement that he was not properly apprised of developments in the Massachusetts Wal Mart action and his announcement that he was reassigning all Wal Mart cases to a different attorney. In contrast to the writings analyzed in CSC, Neville, Taheri and Healy, the challenged e mail is not a protected litigation update or critique. The gravamen of the e mail, and the basis of plaintiff’s claim, relates to matters internal to the Firm: Furth’s dissatisfaction with how he was being apprised of developments in the Massachusetts Wal Mart action and his decision to reassign the Wal Mart cases to a different attorney. The e mail’s reference to the Massachusetts trial court’s decision does not alter this characterization. Reviewing the e mail as a whole, it is evident Furth referred to that decision to give context to his frustration and decision to reassign the cases.
Plaintiff avers the e mail incorrectly stated that the Massachusetts action had been dismissed. She asserts: “Notwithstanding that certification in that matter had been upheld on appeal, a newly appointed trial court judge decided on the eve of trial to seek additional guidance from the appellate court regarding decertification. The Massachusetts Supreme Judicial Court thereafter decided to hear the appeal directly, and oral argument was heard on May 7, 2008.” Plaintiff also maintains she was not required to inform Furth of developments in the Massachusetts action as he was not directly involved in the litigation, and she instead reported on that case to the Firm’s managing partner and a partner who worked on the California Wal-Mart litigation. According to plaintiff, she immediately notified the assigned partners of the court’s decertification decision. In any event, our decision does not depend on the accuracy of the assertions in the e mail.
Moreover, the communications in CSC, Neville, Taheri,and Healy were directed to “persons having some interest in the litigation.” (Neville, supra, 160 Cal.App.4th at p. 1266, fn omitted; see Id. at pp. 1259, 1267-1268.) Limiting the recipients in this manner reinforces the conclusion that a challenged communication was an update on pending litigation protected under the anti-SLAPP statute. The record here demonstrates the e mail’s distribution list was overly broad; it was sent to everyone in the Firm, including clerical, administrative, and accounting personnel. Defendants maintain everyone had an interest in the developments in the Wal Mart cases, but they have not presented any evidence to support this assertion. Plaintiff, on the other hand, presented declarations from two former Firm employees stating they were surprised to have received the e mail, and one further avers she was “very uncomfortable with having been included on the distribution list.” Although the e mail does not mention plaintiff by name, both of the former employees immediately understood it was directed at plaintiff, and that it was intended to humiliate her by criticizing and disciplining her before the entire Firm for how she was handling the Massachusetts action. This evidence, coupled with the absence of any evidence from defendants justifying the scope of the distribution list, leads to the conclusion that its dissemination was not limited to those employees with an interest in the Wal Mart actions.
Plaintiff submitted her own declaration as well as declarations from two former Firm employees in support of her opposition to defendants’ anti-SLAPP motion. On appeal, defendants point out that they objected to the declarations in the trial court. We conclude plaintiff’s evidence is properly before us. The trial court did not rule on all of defendants’ objections because it held plaintiff’s claim was barred by the litigation and common interest privileges. The trial court further noted that, although there was some hearsay in plaintiff’s declaration, “the vast majority of the objections [were] without merit.” Defendants did not obtain specific rulings regarding which portions of plaintiff’s declaration were hearsay, and they have thereby waived objections to those statements on appeal. (See U.S. Western Falun Dafa Assn. v. Chinese Chamber of Commerce (2008) 163 Cal.App.4th 590, 603, fn. 5; Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710.) Further, insofar as the trial court found that defendants’ objections lacked merit, defendants have not presented any argument or authority indicating that ruling was in error.
Further, there is no evidence any of the courts in the Wal Mart actions were reviewing the internal administrative issues discussed in the e mail; therefore that writing lacks the requisite connection to “an issue under consideration or review” in those courts. (See Paul, supra, 95 Cal.App.4th at p. 867 [challenged acts or statements must have “a connection with an issue under review” in an official proceeding].) In the absence of evidence indicating that a tribunal is considering an issue relating to a party’s representation, such as a motion to disqualify counsel, we decline to hold that communications related to a law firm’s internal staffing decisions always fall within the scope of the anti-SLAPP statute. Firms have the right to alter case assignments and terminate an attorney’s employment. However, an exercise of those rights does not necessarily amount to an act in furtherance of the right of petition. The fact that the cases reassigned by Furth constituted petitioning activity or that his decision may have been triggered by developments in the Massachusetts Wal Mart action does not mean that plaintiff’s claim, which is based on the e mail communicating the reassignment, arose from that petitioning activity. (See Navellier, supra, 29 Cal.4th at p. 89 [“that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such”]; California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037 (California Back Specialists) [“[n]ot all attorney conduct in connection with litigation, or in the course of representing clients, is protected by section 425.16”].) Because Furth’s email did not constitute a litigation update or relate to an issue under review in a judicial proceeding, it was not protected activity.
Our decision to deny to defendants the summary procedure of the anti-SLAPP statute does not foreclose the use of other procedural steps to terminate this cause of action that may be available. Defendants, “of course, remain free to challenge [plaintiff’s libel cause of action ] on other grounds and through other procedural means.” (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1288, fn. omitted.)
B. Section 425.16, Subdivision (e)(4)
Section 425.16, subdivision (e)(4), protects any 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. In Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero), Division Two of this court outlined three general categories of actions that implicate the public interest: (1) the statement or activity precipitating the claim “concerned a person or entity in the public eye”; (2) the statement or activity involved “conduct that could directly affect a large number of people beyond the direct participants”; or (3) the statement or activity prompting the claim dealt with “a topic of widespread, public, interest.” (Accord, Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 525 (Integrated Healthcare).)
Although section 425.16, subdivision (e)(4) uses the terms “ ‘public issue’ ” and “ ‘public interest’ ” in the disjunctive, “there appears to be no substantive difference between them.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) [¶] 7:780, p. 7(II)-24.)
Defendants contend the e mail concerns an issue of public interest because it discusses a development in an employment class action lawsuit involving thousands of individuals against Wal Mart, one of the world’s largest retailers. As defendants point out, “The definition of ‘public interest’ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.] ‘ “[M]atters of public interest... include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.” ’ [Citation.]” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479; accord, Integrated Healthcare, supra, 140 Cal.App.4th at p. 523.) However, mere reference to the Wal Mart litigation is insufficient to warrant protection under the anti-SLAPP statute. (See World Financial, supra, 172 Cal.App.4th at p. 1573 [fact that the plaintiff was “ ‘a large, powerful, corporation’ [did] not render all information about the company a matter of widespread public interest”]; see also Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280 (Dyer) [“The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements [of the anti-SLAPP statute].”].) In evaluating the applicability of section 425.16, subdivision (e)(4), we must look at “the specific nature of the speech rather than generalities abstracted from it.” (Dyer, at p. 1280.)
The e mail’s discussion of the ruling in the Massachusetts Wal Mart action does not fall within section 425.16, subdivision (e)(4). To warrant protection under the statute, “the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy....’ [Citation.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.) Here, the e mail simply announced the reassignment of responsibilities for representing clients within a law firm, apparently because the original attorney had failed to adequately communicate case developments to her superiors. Certainly, litigation against a retailer the size of Wal Mart has public significance, but that does not mean all comments made concerning that litigation are entitled to protection under the anti-SLAPP statute. (See World Financial, supra, 172 Cal.App.4th at p. 1573.) The assignment of attorneys who will work on a lawsuit does not necessarily implicate the public interest even though the public may have an interest in the lawsuit generally. This conclusion is bolstered by cases holding that workplace disputes do not necessarily implicate the public interest even though they may be characterized as concerning a public issue. (See, e.g., Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1511 [although “the elimination of sexual harassment implicates a public interest, an investigation by a private employer concerning a small group of people does not rise to a public interest under section 425.16”]; Rivero, supra, 105 Cal.App.4th at p. 924 [“unlawful workplace activity below some threshold level of significance is not an issue of public interest, even though it a implicates a public policy”].)
In arguing for the application of section 425.16, subdivision (e)(4), defendants cite Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456 (Ruiz) and Macias v. Hartwell (1997) 55 Cal.App.4th 669 (Macias). In these cases, the courts found the challenged statements implicated the public interest because they were made in connection with an issue of interest to a limited, but definable, portion of the public and occurred in the context of an ongoing controversy, dispute, or discussion. (Ruiz, at pp. 1468-1469; Macias, at pp. 673-674.) In Ruiz, the court concluded letters from a homeowners’ association attorney to a homeowner implicated the public interest because they were part of an ongoing debate over the association’s governance and enforcement of its architectural guidelines. (Ruiz, at pp. 1468-1470). In Macias, a flyer distributed to union members prior to the election of union officers implicated the public interest because it involved a candidate’s qualifications to serve as president of the local union office. (Macias, at pp. 673-674.)
Furth’s e mail is distinguishable from the statements challenged in Ruiz and Macias, but analogous to the statement analyzed in Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme). In Du Charme, a posting on the union local’s website stated the local’s business manager had been “ ‘removed from office for financial mismanagement.’ ” (Id. at p. 112.) The appellate court held the statement did not satisfy the anti-SLAPP statute’s public interest requirement because it was “unconnected to any discussion, debate or controversy. [The plaintiff’s] termination was a fait accompli; its propriety was no longer at issue. Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called for or contemplated. To grant protection to mere informational statements, in this context, would in no way further the statute’s purpose of encouraging participation in matters of public significance (§ 425.16, subd. (a)).” (Id. at p. 118.)
As discussed above, the Furth e mail, unlike the communications in Ruiz and Macias, was not distributed to a limited portion of the public who had an interest in the controversy. Like the communication in Du Charme, the reassignment of the Wal Mart cases did not occur in the context of an ongoing controversy or dispute, and its protection would not “further[] the [anti-SLAPP] statute’s policy of encouraging public participation in matters of public interest.” (Ruiz, supra, 134 Cal.App.4th at p. 1470.) Although the Wal Mart cases were ongoing, Furth’s e mail announcement did not encourage participation in a debate over who should staff the cases. The e mail communicated removal of an attorney from the Wal Mart actions; it did not seek input into the wisdom of that decision. (See Du Charme, supra, 110 Cal.App.4th at pp. 118-119.) The e mail’s discussion of the reassignment of the Wal Mart cases is not protected under section 425.16, subdivision (e)(4).
II. Probability of Prevailing
Because plaintiff’s libel cause of action did not arise from protected activity, we need not evaluate whether plaintiff met her burden of showing a probability of prevailing on her claim. (California Back Specialists, supra, 160 Cal.App.4th at p. 1037.)
DISPOSITION
The trial court’s order granting defendants’ motion to strike under section 425.16 is reversed. The matter is remanded with instructions to vacate the order and enter a new order denying the motion. Plaintiff is awarded her costs on appeal.
We concur: JONES, P.J., BRUINIERS, J.