Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Ernest M. Hiroshige, Judge. Los Angeles County Super. Ct. No. BC354369.
Connie Diana Rosales, in pro. per., for Plaintiff and Appellant.
Kellman Hoffer, Barry D. Kellman, Daniel P. Hoffer and Brett M. Ehman, for Defendant and Respondent.
DOI TODD, J.
Connie Diana Rosales, who appears in pro. per., appeals from an order granting a special motion to strike under the “anti-SLAPP statute” (Code Civ. Proc., § 425.16). We affirm. The trial court properly granted the motion because respondent Keenan & Associates met its burden of demonstrating that the complaint arose from its protected activity of litigating appellant’s claim before the Workers’ Compensation Appeals Board (WCAB), and appellant failed to show that she had a probability of prevailing on her claims.
SLAPP is an acronym for strategic lawsuits against public participation. Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant filed a workers’ compensation claim against her former employer, Citrus Valley Medical Center (Citrus Valley). Respondent is a third party administrator of workers’ compensation claims and administered appellant’s claim on behalf of Citrus Valley. Appellant’s claim was litigated before the WCAB, and she was represented by attorney Michael Carmona. On August 16, 2004, appellant signed a “Compromise and Release” (C&R), settling her workers’ compensation claim against Citrus Valley and respondent for $60,000. A workers’ compensation judge signed an order approving the C&R, and respondent paid appellant according to the terms of the C&R. In exchange for this payment, pursuant to paragraph three of the C&R, appellant released respondent from liability for any and all claims, known and unknown. Also pursuant to the C&R and the “Attachment Regarding Liens,” respondent agreed to “pay, adjust or litigate” several liens filed by various state agencies and medical providers that had provided money and treatment to appellant, including one filed by the Employment Development Department (EDD), and “to hold [appellant] harmless from any and all liability imposed by the WCAB with regard to those liens . . . .” On or about November 1, 2004, Citrus Valley changed third party administrators, replacing respondent with Claimquest, Inc.
On June 22, 2006, at a lien trial conducted before the WCAB, the EDD’s lien was settled by way of a “Stipulation and Order to Pay Lien Claimant” in the amount of $24,432. A workers’ compensation judge approved the stipulation. On or about June 27, 2006, Claimquest paid the lien by check in the amount of $24,432 to EDD.
On June 22, 2006, appellant filed the complaint in this matter, alleging causes of action against respondent for breach of contract and fraud. Her complaint was apparently based on her mistaken belief that she, not the EDD, was entitled to collect the EDD’s lien. She alleged: “My condition to settling case was that disability lien would be paid. As I was not working, I would be able to have a source of income available.” Under her contract claim, appellant alleged: “EDD lien to be paid. So I could collect benefits as of 9/2004[.] Continuation of payments per attorney Michael Carmona arranged or led me to belief[.] [sic] I went to court trial on 6/22/06[.] Defense refuse[d] to pay because payments were overdue and not properly paid[.] Per defense as of 9/2004 they are refusing payments . . . . Instead stalled payments till end. Now excusing themselves of said payment because its [sic] overdue. When they had an obligation to pay timely per contract.” Under her fraud claim, appellant alleged: “On 6/22/06 I went to court[.] Defense states refusing of payment on two liens on EDD payments because there [sic] old overdue when they had an obligation to pay upon compromise and release per arrangement made by attorney Michael Carmona or I was lied to to reach said agreement.” “Attorney Michael Carmona made said agreement[.] I was lied to in regards that EDD liens would be paid reimbursed to me in order to settle sign compromise and release. There was no intent to pay.”
Respondent filed a special motion to strike the complaint (the anti-SLAPP motion), arguing that the anti-SLAPP statute applied because appellant had sued respondent based on its purported activities of litigating and negotiating settlement of her claim and the EDD’s lien before the WCAB, and because appellant could not demonstrate a probability of success on the merits. Appellant did not timely oppose the motion, which was granted by the trial court. Appellant’s motion for reconsideration was denied. This appeal followed.
DISCUSSION
I. The Anti-SLAPP Statute and the Standard of Review.
The anti-SLAPP statute is aimed at curbing “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738–739.) The statute provides in relevant part: “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 or 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.” (§ 425.16, subd. (b)(1).) An “act in furtherance of” the right of petition or free speech includes “any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law”; “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”; “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 “any other conduct in furtherance of the exercise of the constitutional right of petition . . . of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(1)–(4).)
There are two components to a motion to strike brought under section 425.16. Initially, the party challenging the lawsuit has the threshold burden to show that the cause of action arises from an act in furtherance of the right of petition or free speech. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once that burden is met, the burden shifts to the complaining party to demonstrate a probability of prevailing on the claim. (Zamos v. Stroud, supra, at p. 965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) To satisfy this prong, the plaintiff “‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568 [to establish a probability of prevailing, a plaintiff must substantiate each element of the alleged cause of action through competent, admissible evidence].) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We independently review the record to determine both whether the asserted causes of action arise from the defendant’s free speech or petition activity, and, if so, whether the plaintiff has shown a probability of prevailing. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) 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); Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
Our independent review does not encompass matters that were not before the trial court at the time of the anti-SLAPP motion. “It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; accord, People v. Welch (1999) 20 Cal.4th 701, 739 [“We review the correctness of the trial court’s ruling at the time it was made, however, and not by reference to evidence produced at a later date”].) We therefore deny appellant’s motion to augment the record on appeal because it seeks to add documents that were either generated after the trial court’s ruling on the anti-SLAPP motion or that were never properly presented to the trial court in connection with the motion.
II. The Trial Court Properly Granted the Anti-SLAPP Motion.
A. Protected Activity
Our Supreme Court has explained: “In the anti-SLAPP context, 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.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) “‘“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.]’” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478.) “The principal thrust or gravamen of the claim determines whether section 425.16 applies.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 472 (Premier).)
Premier is instructive here. There, the plaintiffs were Premier, a medical management company, and five affiliated physicians who sought to recover for their services by prosecuting lien claims before the WCAB. The California Insurance Guarantee Association (CIGA) disputed the charges for services rendered through Premier and, along with several insurers, filed petitions to consolidate pending proceedings involving Premier’s liens before the WCAB. Premier opposed the petitions on the grounds they were brought for the improper purpose of delay. (Premier, supra, 136 Cal.App.4th at p. 469.) The WCAB granted consolidation and stayed enforcement of all liens. In the superior court, Premier filed a complaint against CIGA, several insurance companies, and other entities, asserting claims under the Cartwright Act, RICO, Business and Professions Code section 17200, and various tort causes of action based on allegations that the defendants collectively conspired “to ‘contest, object to, litigate, delay payment on and/or not pay at all on Plaintiffs’ valid and proper bills and lien claims . . . .’” (Premier, supra, at p. 473.) Several defendants joined in an anti-SLAPP motion, arguing that the lawsuit was based entirely on their constitutional right to petition the WCAB. (Id. at p. 471.)
The trial court’s denial of the defendants’ anti-SLAPP motion was reversed on appeal. The defendants argued that the complaint arose from their acts and communications in connection with or in proceedings before the WCAB, and that the entire process of submitting bills and lien claims for medical services in pending WCAB cases is inherently part of the WCAB litigation process. (Premier, supra, 136 Cal.App.4th at p. 473.) To support their argument, the defendants relied on Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 810, which held that claims by workers’ compensation medical providers for damages arising out of insurers’ failure to make full and timely payment on their lien claims came within the exclusive remedy provisions of the Workers’ Compensation Act. The defendants also argued that they were being sued because they exercised their statutory right to object to the plaintiffs’ bills and lien claims. (Premier, supra, at p. 473.) The defendants observed that the plaintiffs pursued payment in WCAB litigation, and invoked the rule that communications preparatory to litigation are covered by section 425.16. (Premier, supra, at p. 473.) The plaintiffs argued that their complaint had nothing to do with petitioning the WCAB, but instead addressed delay and avoidance of payment to Premier. (Id. at pp. 473–474.)
The appellate court found that the defendants had the better argument. (Premier, supra, 136 Cal.App.4th at p. 474.) The court noted that the constitutional right to petition includes the basic act of seeking administrative action. (Ibid.) The court was satisfied that “the gravamen of Plaintiffs’ action arises from the activity of defendants in litigating lien claims through the workers’ compensation process.” (Id. at p. 477.) This included communications preceding the filing of the petitions for consolidation. (Ibid.) The court held that the entire complaint fell within the scope of section 425.16, subdivision (e)(2) (“‘any written or oral statement or writing made in connection with an issue under consideration or review by [an] executive . . . body, or any other official proceeding authorized by law’”). (Premier, supra, at p. 477.)
Likewise, here, we are satisfied that the gravamen of appellant’s complaint arises from respondent’s purported activity in litigating and negotiating settlement of her claim and the EDD’s lien before the WCAB. Her complaint alleged that her attorney, Michael Carmona, and/or respondent and its attorneys lied to her by telling her that she would be paid the EDD’s lien in order to induce her to sign the C&R, and that respondent had no intention of paying her. Thus, her complaint is based on respondent’s acts and communications in connection with proceedings before the WCAB, and thus falls within section 425.16, subdivision (e)(2) (statements “made in connection with an issue under consideration or review by . . . [an] executive . . . body, or any other official proceeding authorized by law”). Her appellate brief also makes clear that she is complaining about respondent’s purported actions in litigating and negotiating her claim and the EDD’s lien before the WCAB. She asserts that “[i]n the process of going through the WCAB/EDD hearings for the settlement of her claims, her attorney failed to appear at the most crucial hearing to represent her,” she was barred from entering the hearing room to represent herself, and she later learned that attorneys for respondent negotiated directly, ex parte, with the WCAB judge and reduced the disability award that she was entitled to. She further asserts: “It is appellant’s argument that the administrative judge, and especially the attorneys for [respondent], should have not agreed to proceed with the hearing where the main person, Appellant, was not represented by counsel, and not allowed to represent herself. . . . It was error for this to have happened at all.” Because appellant’s complaint arises from respondent’s activity in litigating and negotiating her claim and the EDD’s lien through the workers’ compensation process, her entire complaint falls within section 425.16. (Premier, supra, 136 Cal.App.4th at p. 477; see also Navellier v. Sletten, supra, 29 Cal.4th at p. 90 [applying anti-SLAPP statute to breach of contract and fraud claims arising out of alleged violation of release agreement].)
Appellant’s arguments against application of the anti-SLAPP statute are easily rejected. She argues that the statute should not apply because respondent did not act “with the purpose of ‘furthering’ Appellant’s rights.” But respondent is not required to show that its actions were taken in furtherance of appellant’s rights, only that the challenged action arises from an act taken in furtherance of respondent’s right of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 61.)
Appellant also argues that her WCAB case involved “a private right of redress, rather than participation in a public interest forum.” But there is no “public interest” requirement where, as here, the defendant’s challenged conduct arises “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 [“[T]he Legislature apparently judged the bright-line ‘official proceeding’ test set out in clauses (1) and (2) of section 425.16, subdivision (e) to be adequate, and thought it unnecessary to add an ‘issue of public interest’ limitation for those two classes of potential cases”].)
Appellant argues that she should be permitted leave to amend her complaint to excise any allegations of protected conduct. But a plaintiff is not entitled to amend a complaint to circumvent an anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [allowing a SLAPP plaintiff leave to amend “would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy”]; Premier, supra, 136 Cal.App.4th at p. 476 [on review of an anti-SLAPP motion, “[w]e must take the complaint as it is”].)
Appellant also argues that the anti-SLAPP statute should not apply because the goal of her lawsuit was not to chill respondent’s free speech. But a defendant bringing an anti-SLAPP motion is not required to show that the lawsuit was intended to or actually did chill the defendant’s speech. (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1478 citing Flatley v. Mauro, supra, 39 Cal.4th at p. 312 & Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 734.)
C. No Demonstration of Probability of Prevailing
Because respondent met its burden of showing that the appellant’s causes of action arose from protected activity, appellant was required to demonstrate the probability of prevailing on those claims by making a prima facie showing of facts that would, if proved, support a judgment in her favor. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398.) A plaintiff “‘“cannot simply rely on the allegations in the complaint” [citation], but “must provide the court with sufficient evidence to permit the court to determine whether ‘there is a probability that the plaintiff will prevail on the claim.’” [Citation.]’” (Ibid.)
In her opening brief on appeal, appellant states that she filed an opposition to respondent’s anti-SLAPP motion “admittedly very late” on the day before the hearing. The court’s written ruling on the motion states that appellant filed no opposition to the motion, and there is no copy of any opposition in the record on appeal. Because appellant has not demonstrated a probability of prevailing on her claims, the anti-SLAPP motion was properly granted. (Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1454.)
DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Respondent is entitled to costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.