Opinion
2d Civ. B320210
07-24-2023
JOHN DOE, Plaintiff and Appellant, v. KATIE JO McCLAIN, Defendant and Respondent.
Decker Law, James D. Decker and Griffin R. Schindler for Plaintiff and Appellant. McPherson, Edwin F. McPherson and Pierre B. Pine for Defendant and Respondent.
NOT TO BE PUBLISHED
Superior Court Los Angeles County No. 21STCV46709 Steven J. Kleifield, Judge
Decker Law, James D. Decker and Griffin R. Schindler for Plaintiff and Appellant.
McPherson, Edwin F. McPherson and Pierre B. Pine for Defendant and Respondent.
GILBERT, P. J.
Katie Jo McClain, an actor, e-mailed the Screen Actors Guild, her union, to complain about Joe Doe, a producer. She claims this and other contacts with her union constitute an official proceeding within the anti-SLAPP statute. They do not. We need not decide here whether the union could have initiated an official proceeding. The undisputed record shows no such proceeding occurred.
John Doe appeals an order granting defendant Katie Jo McClain's special motion to strike (Code Civ. Proc., § 425.16 [anti-SLAPP]) his lawsuit for defamation, intentional interference with business relationships, negligent interference with prospective business relationships, and intentional infliction of emotional distress.
All statutory references are to the Code of Civil Procedure.
The trial court ordered Doe's action dismissed with prejudice. We conclude, among other things, that McClain did not meet her burden to satisfy the first prong of her anti-SLAPP motion. We reverse.
FACTS
Doe and McClain are members of the Screen Actors Guild (SAG) union. Doe stars in, directs, and produces a "digital daytime drama webseries." In 2015, Doe hired McClain to work on the series for three days "at a rate of $3,000.00 per day." She received an advance payment of $9,000.
Doe terminated McClain's services after one day of service. He requested McClain to return $6,000 of the $9,000 that she had received. McClain declined. Doe demanded that McClain return the $6,000 or face litigation.
McClain sent an e-mail to David Gregoire of SAG in 2015. She said, among other things, "Hi David, [¶] . . . You may remember me as we spoke a few times during the end of 'All My Children' in 2011 ...." McClain said she had been "slandered and defamed" by a person working for Doe "to threaten [her] into giving back some of the funds" advanced to her from Doe's "LLC." "I worked one of those three days and have proof that I made myself available to work the other two days. [Doe] kept changing my two work days in an effort, I believe, to avoid having to pay me the full amount owed.... [¶] I have a call out to a lawyer . . ., Gary Watson. [¶] No other actor should ever have to go through this. [¶] Thank you for any input and guidance you can give me." The e-mail was marked confidential and "solely for use by" Gregoire.
Doe believed McClain had breached her contract. He sued her in small claims court. A couple months later, he dismissed the small claims action.
Doe had a brief phone call with SAG. He later received a letter from SAG that "revoked [his] SAG Signatory Status as a producer." This prevented him from producing episodes of his series and acting in his series. SAG did not conduct a hearing or provide Doe an opportunity to respond to accusations against him.
Doe filed an action against McClain for defamation and other causes of action. He alleged SAG revoked his "signatory status" solely based on false and defamatory statements McClain made that Doe, among other things, was "a sexual predator, sexual harasser, purveyor of pornographic material, [and] a rapist."
McClain filed a special motion to strike based on the anti-SLAPP statute. The trial court granted the motion.
We granted Doe's motion to augment the record.
DISCUSSION
The Anti-SLAPP Motion
"The anti-SLAPP statute is designed to prevent meritless lawsuits from chilling individuals' exercise of their rights of petition or free speech." (Dorit v. Noe (2020) 49 Cal.App.5th 458, 466.)" '[T]he statute authorizes a special motion to strike a claim "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." '" (Ibid.)
" 'Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." '" (Dorit v. Noe, supra, 49 Cal.App.5th at p. 466.) "We review the trial court's ruling on an anti-SLAPP motion de novo." (Id. at p. 467.)
"Because the issues to be determined in an anti-SLAPP motion are framed by the pleadings, we will not 'insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified ...." (Medical Marijuana, Inc. v. ProtectCBD.com. (2020) 46 Cal.App.5th 869, 883, italics omitted.)
In his complaint Doe alleged that McClain made false statements, including that Doe was a "sexual predator" and "rapist."
Statements Made at an Official Proceeding
In her anti-SLAPP motion, McClain claimed Doe's lawsuit violated her protected activities under section 425.16, subdivision (e)(2), which include "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." (Italics added.) She contended her statements to SAG were made in an "official proceeding."
SAG, "a California corporation doing business in the County of Los Angeles, is a labor union." (Screen Actors Guild, Inc. v. Cory (1979) 91 Cal.App.3d 111, 113.) It is not a governmental entity." 'When nongovernmental entities are involved, courts have limited "official proceeding" anti-SLAPP protection to (1) quasi-judicial proceedings that are part of a "comprehensive" statutory licensing scheme and "subject to judicial review by administrative mandate" [citation], and (2) proceedings "established by statute to address a particular type of dispute." '" (Dorit v. Noe, supra, 49 Cal.App.5th at p. 469, italics added.)
An example of the first provision is a medical board peer review quasi-judicial evidentiary hearing to examine a doctor's qualifications that is reviewed by mandamus. An example of the second is "mandatory attorney fee arbitration." (Dorit v. Noe, supra, 49 Cal.App.5th at p. 469.) Some arbitration hearings, however, do not fall within the definition of an "official proceeding." As stated in Dorit, "While private contractual arbitration is governed by statute, it is not an official proceeding because it is not required by statute." (Ibid.)
The term "official proceeding" has been "interpreted to encompass those proceedings which resemble judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings." (Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323, italics added.) In Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, our Supreme Court held the term "official proceeding" has been "interpreted broadly to protect communications to or from governmental officials which may precede the initiation of formal proceedings," but not "communications between private parties who are not acting in an official capacity." (Ibid.) The official proceeding privilege does not apply to communications to a private entity that are "not directed at preparing for or eliciting governmental action." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 365.)
As a private entity, SAG is not analogous to "governmental officials performing an official duty." (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1509.) It did not conduct a "quasi-judicial proceeding." (Ibid.) SAG often uses private contractual arbitration to resolve disputes. (See, e.g., Screen Actors Guild v. A. Shane Co. (1990) 225 Cal.App.3d 260.) But that is not an "official proceeding" under the anti-SLAPP act. (Dorit v. Noe, supra, 49 Cal.App.5th at p. 469.)
McClain did not make her statements in court, to a legislative body, in a quasi-judicial proceeding, at an evidentiary hearing, at a labor arbitration hearing, at a public forum, or a proceeding to initiate "governmental action." Her declaration does not describe any "official proceeding" at the union. Instead, McClain declared that she sent an e-mail to a friend at SAG asking for "input and guidance" regarding her private dispute with Doe. This e-mail did not request the initiation of any proceedings, a hearing, or an arbitration. (See A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1129.) It was a confidential message requesting "input" from a person not "acting in an official capacity" at a private entity (Slaughter v. Friedman, supra, 32 Cal.3d at p. 156, italics omitted), who was not initiating "governmental action." (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 365.)
McClain's e-mail to SAG, a private entity, did not initiate an "official" proceeding. In Kettler v. Gould (2018) 22 Cal.App.5th 593, the appellate court said the Certified Financial Planner Board of Standards, which investigates complaints of misconduct against financial planners, has "a laudable objective that may be helpful to the public." But, as a private entity, its "laudable objective[s]" were "not enough to transform its private certification and enforcement processes into an 'official proceeding authorized by law.'" (Ibid.) A private entity's procedures enacted to comply with laws to prevent sexual harassment on the job "[do] not automatically transform a private employer into an entity conducting 'official' proceedings." (Olaes v. Nationwide Mutual Ins. Co., supra, 135 Cal.App.4th at p. 1508.) A federal credit union is "highly regulated by federal statute," but it is "not a governmental agency," and its investigations and reports to its board are not official proceedings. (Cuenca v. Safeway San Francisco Employees Fed, Credit Union (1986) 180 Cal.App.3d 985, 995.)
McClain has the burden on the first anti-SLAPP prong. But she did not present evidence to show what "official proceeding" took place, a description of the procedures, or a showing of how SAG was performing an official duty. She contends that "a review of the [National Labor Relations Act] reveals that it has clear rules and procedures for adjudicatory proceedings." (Italics added.) But the issue is whether there was an official adjudicatory proceeding, and there is no evidence of such a proceeding here. McClain may not rely on hypothetical or nonexistent proceedings to meet her burden. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1378.)
Doe presented evidence to show the absence of anything resembling a quasi-judicial or official proceeding. (Frisk v. Merrihew, supra, 42 Cal.App.3d at p. 323.) He declared he had a brief telephone call with SAG and then he received a letter stating his signatory status was revoked. He said he "was not asked by SAG to attend any hearings, to be interviewed, to submit any response to any accusations." He was "never allowed by SAG to respond to any accusations." There was no hearing and "no procedures that were followed."
To construe this to be an "official proceeding" would render that phrase meaningless (Frisk v. Merrihew, supra, 42 Cal.App.3d at p. 323), a result the Legislature could not have intended. (Ibid.) McClain suggests she has a right to contact her union about labor conditions. True, but Doe's lawsuit was not initiated to prevent her from exercising that right. He sought damages because he claimed her statements defamed him.
Speech in Connection with a Public Issue
McClain also claims her conduct falls within section 425.16, subdivision (e)(4), which includes "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." (Italics added.)
In Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1255, our Supreme Court said a "sidewalk protest" about evictions of longtime residents "furthered public discussion of the public issues it implicated," and thus this conduct fell within section 425.16, subdivision (e)(4). "It is a paradigmatic example of 'conduct in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue of public interest.'" (Ibid.) "This conclusion is bolstered by the media coverage arising from the controversy and by the press release Wedgewood issued in response to it." (Ibid.) "[W]e look to the 'functional relationship' between the challenged activity and the 'public conversation' about that issue, and ask whether the activity' "contribute[s]"' to the public discussion of the issue." (Id. at p. 1249, italics added.) Other examples of protected speech on public issues could include political protests, speaking at public meetings, debating issues at a public forum, speaking on television, or the Internet.
The current case involves nothing comparable to the above examples. In Geiser, the public protestors" 'shared'" the" 'desire to engage in public speech.'" (Geiser v. Kuhns, supra, 13 Cal.5th at p. 1251.) Here McClain made no showing that she was participating in a public forum or that she communicated her statements to the public. In Geiser, the public protests contributed to the public discussion of the issue. (Id. at p. 1249.) Here there could be no public discussion because the issues were not presented to the public.
McClain suggests the subject matter of the rights of SAG union members in the media and Doe's loss of signatory status with the union are matters of ongoing public interest and debate. But McClain must show how her conduct contributed to the public debate. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 150.)" '[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.'" (Ibid.) Doe noted that his loss of signatory status "received no publicity or press articles, and was never even mentioned on any soap opera websites." Because her e-mails were confidential, McClain has not shown how they were intended to initiate any public discussion. McClain presented pages from her social media posts. But none of them mentioned her dispute with Doe.
Moreover, because this was a private dispute between Doe and McClain over $6,000, McClain's confidential statements did not "occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance." (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119, italics added.) There was no showing that the union ever made any public statements about the letter it sent to Doe. But even had it done so, the result would not change. A union's publication of facts about a labor dispute does not "turn an otherwise private matter into one of public interest." (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 973; Rivero v. American Federation of State, County, and Municipal Employees, ALF-CIO (2003) 105 Cal.App.4th 913, 926.)
McClain claims this action has no merit. But the issue here is whether she met her burden on the first prong of the anti-SLAPP motion. If not, the order granting the anti-SLAPP motion must be reversed. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Verceles v. Los Angeles Unified School Dist., supra, 63 Cal.App.5th at p. 784.) We have reviewed McClain's remaining contentions and we conclude they do not support her claim that she met her first-prong burden.
The Litigation Privilege
McClain claimed her statements to SAG were protected by the litigation privilege. But the litigation privilege "applies to any communications . . . made in judicial or quasi-judicial proceedings." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, italics added.) "The privilege thus affords its extraordinary protection to the uninhibited airing, discussion and resolution of disputes in, and only in, judicial or quasi-judicial arenas." (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146.) McClain's comments to SAG were not made in a judicial or quasijudicial proceeding. The litigation privilege" 'does not apply to statements made outside the courtroom to nonparties unconnected to the proceedings.'" (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 382, italics added.) "[R]epublications to nonparticipants in the action are generally not privileged ...." (Silberg, at p. 219, italics added.) SAG was not a party to the small claims litigation. McClain presented no evidence to show any litigation activity SAG initiated in the small claims court. SAG did not file a lawsuit for McClain, initiate an arbitration, or any quasi-judicial proceeding.
In her e-mails, McClain said she had retained a private attorney. SAG was not her lawyer. Consequently, her statements to SAG did not fall within the privileged category of" 'communications such as those made by a client to his attorney or by an individual to a prosecuting attorney or other public officer preliminary to a proposed criminal proceeding.'" (Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 94.)
McClain claims she made protected pre-litigation statements citing Comstock v. Aber (2012) 212 Cal.App.4th 931. But there the cross-defendant showed that her pre-litigation statements to a human resources person at her company were protected because they were directly connected to a lawsuit she ultimately filed. They were statements "prior to litigation" that were "necessary to defeat an affirmative defense" of failure to exhaust internal administrative remedies. (Id. at p. 945, italics added.) McClain has not made such a showing and her statements were not made in preparation for a lawsuit against Doe.
Conduct connected to actual litigation is protected, but "conduct that constitutes 'a separate and distinct activity' from litigation is not protected." (Verceles v. Los Angeles Unified School Dist. (2021) 63 Cal.App.5th 776, 791.) Here McClain provided SAG with information about small claims actions Doe filed against various people. But this was "separate and distinct" from litigation because she contacted SAG for a different purpose. McClain wanted SAG to know about Doe's conduct so" 'no other actor should ever have to go through this.'" In her declaration McClain did not state that she provided information in furtherance of and "in serious contemplation of litigation" she intended to file. (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 266.) She did not state she discussed litigation strategy, or was engaged in pre-litigation discovery, investigation, or was exhausting a mandatory pre-litigation administrative remedy.
McClain attached e-mails to her declaration that she sent to SAG and claimed that because they mentioned small claims litigation Doe filed, the litigation privilege applies. But a party does not show the applicability of the litigation privilege by merely having discussions about litigation with a third party. (Action Apartment Assn., Inc v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251; Silberg v. Anderson, supra, 50 Cal.3d at p. 219.)
Moreover, those e-mails about small claims actions were not the target of Doe's lawsuit. (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1020; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1484.) Doe claims: 1) McClain had other communications with SAG apart from those e-mails; and 2) those non-e-mail communications are the defamatory ones. Because his complaint does not target McClain's e-mails, and was only directed against defamatory statements: 1) McClain's statements to SAG about small claims actions are" 'separate and distinct'" from Doe's theory of liability (Verceles v. Los Angeles Unified School Dist., supra, 63 Cal.App.5th at p. 791); 2) Doe's lawsuit is independent from those e-mails (Feldman, at p. 1484); and 3) this action only involves liability for defamation, and not for any litigation activity McClain discussed. (Baral v. Schnitt (2016) 1 Cal.5th 376, 394.)
Neither the anti-SLAPP statute nor the litigation privilege apply where the "gravamen" of the pleading, as here, is not directed at litigation or statements leading to litigation. (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1484; see also Medical Marijuana, Inc. v. ProtectCBD.com, supra, 46 Cal.App.5th at p. 883.)
Moreover, in defamation lawsuits, the litigation privilege will not protect defendants who made defamatory statements to third parties and who are unable to show those statements were connected to litigation. (Rothman v. Jackson, supra, 49 Cal.App.4th at p. 1151.) McClain did not present evidence on that issue. Doe filed a declaration stating McClain called him a sexual predator. McClain did not file a declaration to contest that claim. This was a failure of proof on that issue with no evidence that the alleged defamatory statements involved litigation activity.
DISPOSITION
The orders granting the anti-SLAPP motion and dismissing this action are reversed. Costs on appeal are awarded to appellant.
We concur: YEGAN, J., CODY, J.