Opinion
A154945
10-31-2019
KERLINE ASTRE, Plaintiff and Appellant, v. SUSAN MCQUAID, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV261419)
When a defendant files an anti-SLAPP special motion to strike but the plaintiff voluntarily dismisses her complaint before the motion can be decided, the trial court retains jurisdiction to entertain the defendant's request for attorney fees and costs under Code of Civil Procedure section 425.16, subdivision (c); the court awards fees and costs if it determines the defendant's anti-SLAPP motion would have been granted. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1452 (Tourgeman).) That is what happened in this case. Plaintiff Kerline Astre appeals from the trial court order awarding attorney fees and costs to defendants Susan McQuaid and James Findlay. Astre contends the trial court acted prematurely in awarding fees because defendants did not show that they realized their litigation objectives; in the alternative, she argues the trial court erred in finding that defendants would have been successful on the merits of their motions to strike. We conclude that the trial court did not act prematurely in considering the award of fees and costs, but that the award of fees and costs to Susan McQuaid on the cause of action for intentional infliction of emotional distress was error. We otherwise affirm the judgment.
SLAPP is an acronym for "strategic lawsuit against public participation." (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.) All statutory references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL BACKGROUND
The Complaint
On October 23, 2017, Marin Advocates for Children (MAC), a non-profit corporation, and Astre, its former executive director, filed a complaint for damages, alleging defamation against defendant Findlay and intentional infliction of emotional distress and invasion of privacy against defendant McQuaid. At the time, MAC oversaw the Court Appointed Special Advocates (CASA) program in Marin County. McQuaid was a "longtime volunteer for and donor to MAC"; Findlay was a former CASA volunteer at MAC.
Marin Advocates for Children is not a party to the appeal, but we sometimes to refer to "plaintiffs" to reflect the history of the case.
We briefly summarize and quote from the allegations of the complaint.
In early 2016, the MAC board was searching for a new executive director without success. In April 2016, Astre was interviewed for the position. Astre did not have direct experience with the CASA program. McQuaid, on her own, conducted a Google search of Astre, and found a website that purported to have "Astre's mugshot." She presented the results of her search to the MAC board to advocate against hiring Astre. The MAC board asked Astre for more information; Astre explained she had been arrested for shoplifting, the arrest did not result in conviction, and the charges were dropped. MAC ultimately hired Astre as executive director.
These allegations were the basis for the invasion of privacy (false light) claim against McQuaid, which claim was subsequently abandoned by plaintiffs.
After Astre was hired, McQuaid continued to inform MAC volunteers and donors about Astre's arrest, and she said Astre was not a good fit for the job, did not have the "right connections," and was not compassionate enough. According to the complaint, McQuaid was a "well-connected white woman, had inherent cultural power over Astre, and McQuaid's criticisms were driven at least in part by racial animus against Astre as a young, black woman in a position of authority over McQuaid."
On November 14, 2016, McQuaid "confronted" Astre in her office. McQuaid criticized Astre for terminating a MAC staff member. She stated that Astre did not have the skills necessary to lead the organization and did not belong there. The complaint characterized McQuaid's statements to Astre as "highly offensive and outrageous threats and attacks."
The November 14 encounter with McQuaid is the focus of the intentional infliction of emotional distress claim and is alleged in the complaint with bullet points listing the alleged "highly offensive and outrageous attacks."
In substance, these allegations are: McQuaid accused Astre of " 'using' MAC and her role as executive director 'to deal with or address [plaintiff's] trauma and sexual abuse,' and characterized that as 'unprofessional.' " McQuaid stated, "Nobody gives a shit about your personal journey."
When Astre "extend[ed] an offer of support to all CASA's with their cases, McQuaid responded, 'No one will come to you. You are not a CASA, nor do you have the benefit of an experienced CASA to support us.' "
McQuaid "erroneously told [plaintiff] that the Board of Directors did not undergo a thoughtful process in the hiring of [plaintiff]." McQuaid told Astre that she "lacked the level of compassion, competency, connections, and specific skill needed to lead the organization." McQuaid warned that "things would get far worse before they got better." McQuaid stated that Astre "has not begun to see the gravity of the repercussions of [her] actions, but will."
McQuaid stated, "You can stop thinking that the CASAs don't know anything because we know everything. We share emails and we talk. We have done so especially since your actions."
McQuaid stated, "You don't know Marin. You have no clue about how things work here."
McQuaid stated that MAC was losing CASA's and more would leave.
When Astre "shared to McQuaid" that she was committed to recruiting more CASA's and "diversifying them" McQuaid responded that Astre "will have even less luck trying to 'diversify' our pool in a County that is predominantly white."
At the end of the meeting, McQuaid "stood up and said, '[w]ell, I've probably depressed you and you won't be able to sleep tonight.' McQuaid then facetiously offered to hug Astre."
In mid-November 2016, McQuaid and two other volunteers met with the MAC Board and stated that Astre was unqualified to be executive director and should be required to complete CASA training herself. McQuaid resigned as a volunteer, withdrew her support as a donor, and told other CASA volunteers and donors that the Board should not have hired Astre. Several MAC volunteers and donors began withdrawing their support and wrote letters of resignation that appeared similar to one another.
"In the midst of this," Astre received a letter of support from a MAC volunteer that expressed concern about the "divisiveness growing" in MAC's volunteer community. Astre asked the author's permission to distribute the letter to MAC's volunteers, but the author said the letter could only be distributed without her name. Astre sent the letter to MAC's volunteers, with the author's name removed.
When Astre sent the letter to MAC volunteers, she stated that the letter was anonymous and therefore was unsigned. This fact—which was not alleged in the complaint—is from Astre's declaration in opposition to the attorney fee motion. We mention it to give context to the defamation claim that follows.
Defendant Findlay, a former CASA, responded to the forwarded letter with an email to MAC volunteers and Astre, and this email forms the basis of the defamation claim. The email, as excerpted and quoted in the complaint reads as follows:
"Of course I remain in touch with many of my former colleagues in the Marin CASA program and recently I read the 'anonymous letter' from a CASA to his/her fellow CASA's espousing the attributes of the Executive Director. Seriously? Unsigned? Seriously?
"There is little doubt that the document was 'created' to make the current 'management' look good—and a weak attempt to provoke sympathy . . . the words 'pathetic' and 'unprofessional' come quickly to mind. What a joke."
In January 2017, Astre resigned as executive director "in the wake of the dissent amongst MAC's volunteers," and MAC was removed from Marin County's CASA program.
On June 16, 2017, McQuaid sent an email to MAC's board, with a copy to the Marin County District Attorney, demanding that they turn over their assets to a new CASA program started by McQuaid.
Special Motions to Strike
Findlay and McQuaid responded to the complaint with special motions to strike the complaint and demurrers. Both defendants argued that all of the causes of action were based on protected activity under section 425.16 and that plaintiffs could not demonstrate the probable merits of their claims. As to the claims against her, McQuaid argued her advocacy and job-related criticism did not amount to outrageous conduct necessary for intentional infliction of emotional distress as a matter of law, and the truthful disclosure of publicly available information by word of mouth could not form the basis of an invasion of privacy claim as a matter of law. As to the defamation claim, Findlay argued his email was a non-actionable statement of opinion and in any event lacked malice and was subject to the litigation privilege.
Plaintiffs Voluntarily Dismiss Their Complaint
In early January 2018, plaintiffs' attorney informed the defendants that the invasion of privacy claim would be dropped.
Then, on January 19, plaintiffs' attorney notified defendants that plaintiffs had filed a parallel action against defendants in the U.S. District Court for the Northern District of California (federal action) on January 8, and that plaintiffs had dismissed the state case without prejudice.
Also on January 19, plaintiffs filed a first amended complaint in the federal action and added Judge Beverly Wood of the Marin County Superior Court, the California CASA Association and the California Judicial Council as defendants.
Defendants' Motion for Attorney Fees and Costs
After plaintiffs' voluntary dismissal in the face of the pending special motions to strike, defendants filed a motion for attorney fees and costs under section 425.16, subdivision (c), seeking $5,319.82. Defendants also submitted a memorandum of costs.
Plaintiffs opposed the attorney fees motion, arguing it was premature to determine whether defendants had "realiz[ed] their objectives" in light of the proceeding in federal court, and thus the determination of whether plaintiffs would have prevailed was best left to the district court for some time in the future. They asked, therefore, that the court abstain from ruling on defendants' motion. Plaintiffs also argued they would have prevailed had the anti-SLAPP motion been decided. They did not address the merits of the invasion of privacy claim, however. In support of their opposition, plaintiffs filed declarations from Astre and former MAC board member Laura Effel. As Astre acknowledges, her own declaration and Effel's "tracked closely the allegations" of the complaint and, thus, generally recount the allegations described above in footnote 4. Effel declared that "[e]ven before [Astre] was hired . . . and certainly afterwards, defendants attacked [Astre] and then MAC with a far-reaching campaign of racially inspired falsehood, defamation, and intimidation, promoting and encouraging disrespect and insubordination of [Astre] and the MAC Board of Directors, both within MAC, the ranks of CASA volunteers, and the public at large, and ultimately destroying their independence and ability to function."
Plaintiffs also included a declaration from their attorney but it pertained only to the procedural history of the litigation.
Plaintiffs also filed a motion to tax costs but did not dispute any specific dollar amount.
Trial Court's Order Granting the Motion for Attorney's Fees and Costs
In advance of the hearing, the trial court issued a tentative ruling granting the motion. Plaintiffs' attorney stated at the hearing that he "would not argue further" that McQuaid's conduct was not protected under the anti-SLAPP statute. Plaintiffs' counsel also conceded that "I don't think we can really argue with the claim for attorney's fees with respect to the dropped invasion of privacy claim," referring to the fact that this claim had been "very early on . . . abandoned."
The trial court declined plaintiffs' request to abstain from ruling since plaintiffs had cited no authority for their position. The trial court then analyzed whether defendants would have been successful on the merits of their anti-SLAPP motions, employing the familiar two-part test of section 425.16. It determined, first, that the challenged claims arose from conduct protected under section 425.16 and, second, that plaintiffs failed to demonstrate a probability of prevailing on their claims. McQuaid's actions did not "arise to the level of outrageous behavior . . . as a matter of law." Although the trial court noted that Astre provided "some detail" about what McQuaid communicated, including comments that Astre "didn't fit in," and described "confrontations with McQuaid" about the termination of an employee at a meeting that Astre described as "degrading," Astre did not "detail any outrageous behavior." The trial court characterized the evidence as "confrontational, and perhaps, unprofessional comments and accusations, in an office setting." As to Findlay, his email was non-actionable opinion and speculation. The court observed that Astre simply did not address whether she would have been successful on the merits as to the invasion of privacy claim. Thus both defendants would have been successful on the merits of their anti-SLAPP motions, and were entitled to attorney fees. By separate order, the trial court denied plaintiffs' motion to tax costs, finding that the filing fees were necessary to the conduct of the litigation, evidenced by the fact that the case was dismissed in the face of the dispositive motions.
The costs awarded under the memorandum of costs were $745.82, since defendants clarified that half of the filing fees sought were covered in the motion for attorney fees and costs pertaining to the anti-SLAPP motion.
Astre and MAC jointly filed a notice of appeal, but MAC filed a request for dismissal which we subsequently granted. Also, on February 14, 2018, MAC dismissed all of its claims in the federal action.
DISCUSSION
A. The Anti-SLAPP Statute
1. Motion to Strike
"Subdivision (b)(1) of section 425.16 provides that '[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.' Subdivision (e) elaborates the four types of acts within the ambit of a SLAPP, including as pertinent here, '(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.' " (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463 (Hecimovich).)
A two-step process is used for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's complaint fits one of the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine the second step, whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
"The Legislature enacted section 425.16 to prevent and deter 'lawsuits [referred to as SLAPP's] 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).) Because these meritless lawsuits seek to deplete 'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought ' "to prevent SLAPPs by ending them early and without great cost to the SLAPP target" ' [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summaryjudgment-like procedure at an early stage of the litigation." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
"Finally, and as subdivision (a) of section 425.16 expressly mandates, the section " 'shall be construed broadly.' " (Hecimovich, supra, 203 Cal.App.4th at 463.)
2. Right to Attorney Fees for a Prevailing Defendant
Section 425.16, subdivision (c), provides in pertinent part that the "prevailing defendant" on an anti-SLAPP motion "shall be entitled" to recover attorney fees.
Where, as here, a plaintiff voluntarily dismisses her complaint after an anti-SLAPP motion has been filed, she cannot escape paying attorney fees and costs if the court determines the motion would have been granted. (Tourgeman, supra, 222 Cal.App.4th at p. 1452.) This determination necessarily requires the court to consider the merits of the anti-SLAPP motion, even though the court does not have jurisdiction to actually grant or deny the underlying motion. (Moore v. Liu (1999) 69 Cal.App.4th 745, 750-751 (Liu).) B. The Trial Court Applied the Appropriate Standard in Deciding the Fees Motion
As we have explained, a defendant who files an anti-SLAPP motion is entitled to an award of attorney fees if the motion would have been successful, even if the plaintiff avoids a court ruling on the motion by voluntarily dismissing the complaint. (Liu, supra, 69 Cal.App.4th at pp. 751-752.)
Astre, however, urges we apply a different standard for determining whether a defendant in this situation should be awarded fees, relying on Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 (Coltrain). There, the court wrote that if a plaintiff voluntarily dismisses its complaint while a special motion to strike is pending, the trial court retains "discretion to determine whether the defendant is the prevailing party for purposes of attorney's fees under . . . section 425.16, subdivision (c)," and that "[i]in making this determination the critical issue is which party realized its objectives in the litigation." (Id. at p. 107, italics added.) Coltrain continues, "Since the defendant's goal is to make the plaintiff go away with its tail between its legs, ordinarily the prevailing party will be the defendant. The plaintiff, however, may try to show it actually dismissed because it had substantially achieved its goals through a settlement or other means, because the defendant was insolvent, or for other reasons unrelated to the probability of success on the merits." (Ibid.)
Astre argues that plaintiffs here "did not go away with their 'tail between [their legs],' " but instead filed a federal action to vindicate her rights, so it "was (and is) premature to determine that the [defendants] realized their objections by way of the voluntary dismissal of the state court action." We are not persuaded.
First, Astre cites no authority to support her position that the trial court's attorney fees and cost order was "premature," and we are aware of none. Under Astre's position, a motion for attorney fees could be postponed indefinitely if the plaintiff claims its objectives might still be achieved by different, unidentified means in the future, but this result would not serve the purposes of the anti-SLAPP statute, which include ending SLAPPs early and without great cost to the SLAPP defendant. Here, plaintiffs chose to voluntarily dismiss their case, and the trial court did not err in ruling that it retained jurisdiction to consider whether to award attorney fees and costs.
On December 27, 2018, defendants requested judicial notice of various orders filed in the federal action since the trial court issued its orders in this case on May 31, 2018, ostensibly to rebut Astre's continued argument that defendants did not show that they realized their litigation objectives in light of the federal action. One of these orders is a dismissal of all of Astre's claims in the federal action with prejudice. (McQuaid and Findlay are not the only parties to the federal action.) Astre opposes the motion on the ground that our review as to whether defendants realized their litigation objective must be decided as of May 31, 2018, and there was a pending action at the time. The documents thus are "irrelevant" on appeal and are designed to "confuse and prejudice this court." But in the event we do take judicial notice, Astre seeks judicial notice of her notice of appeal to the Ninth Circuit. We deny both parties' requests for judicial notice because they are not relevant to the issue on appeal. Astre has never established any authority to support her argument that the trial court acted prematurely.
On January 28, 2019, Astre filed a request for judicial notice attaching McQuaid's motion to dismiss plaintiff's second amended complaint in the federal action, asserting that it was relevant to "demonstrate that Respondents seek by their continued prosecution of their fee motion to undercut Ms. Astre's right to dismiss her claims voluntarily." The right to dismiss claims voluntarily is not an issue in this appeal, and the request is denied as irrelevant. On September 10, 2019, Astre filed a Supplemental Motion for Judicial Notice of an Acknowledgement of Satisfaction of Judgment filed on or about June 7, 2019. This request is also denied as irrelevant.
Second, to the extent Coltrain implies that the determination whether a defendant is a "prevailing defendant" under section 425.16, subd. (c)(1) (and therefore is entitled to attorney fees) depends on factors other than whether the defendant would have prevailed on the special motion to strike, we decline to follow Coltrain's approach. The Tourgeman court explained, "[I]n contrast to the Coltrain court's statement that it is within the trial court's discretion to award attorney fees pursuant to section 425.16, subdivision (c)(1) if the court determines that the defendant achieved it objectives in the litigation, other courts have concluded that, 'Under the terms of subdivision (c), the critical issue is the merits of the defendant's motion to strike.' [Citations.] . . . [¶] [U]nder Liu[, supra, 69 Cal.App.4th 745] and other cases that have adopted its reasoning, 'the trial court's adjudication of the merits of a defendant's motion to strike is an essential predicate to ruling on the defendant's request for an award of fees and costs . . . ." [Citations.] [¶] We agree with the Liu court and disagree with Coltrain to the extent that Coltrain permits the trial court to award attorney fees and costs pursuant to section 425.16, subdivision (c)(1) without first determining whether the defendant would have prevailed on the special motion to strike. . . . [A] determination of whether a defendant would have prevailed on its motion to strike is an essential prerequisite to an award of attorney fees and costs pursuant to section 425.16, subdivision (c)(1)." (Tourgeman, supra, 222 Cal.App.4th at p. 1457.)
We agree with the reasoning in Tourgeman, as did the trial court, which noted that "[t]he more accepted practice is to determine whether the motion would have been successful on its merits to determine whether an award of attorney fees is warranted," citing Tourgeman. Accordingly, we conclude the trial court did not err in following Tourgeman and not Coltrain. C. Whether Defendants Would Have Prevailed on Their Anti-SLAPP Motions
We next consider whether the trial court was correct in finding that defendants would have prevailed on their special motion to strike. Our review is de novo. (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988.)
Astre contends that the trial court applied an incorrect standard in ruling on the motion, by "wrongly determining" that Astre did not oppose the motion to strike. This is a makeweight. The trial court was correct in noting that Astre voluntarily dismissed her complaint rather than opposing the special motion to strike, but the court went on to consider Astre's opposition to the attorney fees motions on the merits, which necessarily included considering her argument that she would have defeated the motion to strike. Astre also contends that the trial court "wrongly applied a more likely than not standard for determining whether [Astre] would have prevailed." This argument makes no sense; the trial court applied the correct standard in considering whether it was more likely than not that defendants would have prevailed on their motion to strike, applying the standards applicable to such motions to strike.
1. Step One
Considering the first prong of the anti-SLAPP analysis, the trial court found that McQuaid made a prima facie case that her conduct was "protected" under § 425.16(e)(4) because her statements to and about Astre "involved a public issue, specifically the leadership and operation of MAC—a non-profit serving the children of Marin County. . . . Here, the alleged comments were directly targeted to, and about, the leadership and operation of MAC—which at the time was involved in, inter alia, operating the CASA program." The trial court reached the same conclusion about Findlay's conduct. Astre does not challenge these findings on appeal.
2. Step Two
In the second step, Astre was required to make a prima facie case that she could have succeeded on the merits of her claims and defeated the motion to strike. "While plaintiff's burden may not be 'high,' he must demonstrate that his claim is legally sufficient. (Navellier v. Sletten, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient prima facie showing, one made with 'competent and admissible evidence.' " (Hecimovich, supra, 203 Cal.App.4th at p. 469; Baral v. Schnitt, supra, 1 Cal.5th at p. 396 [plaintiff must show that its claims are "legally sufficient and factually substantiated," and the court must determine whether this "showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment"].)
a. Intentional Infliction of Emotional Distress
To prevail on a claim of intentional infliction of emotional distress (IIED), Astre must establish (1) that McQuaid's conduct was "outrageous," (2) that McQuaid intended to cause Astre emotional distress or acted with reckless disregard of the probability that she would suffer emotional distress, (3) that Astre actually suffered severe emotional distress, and (4) that McQuaid's conduct was a substantial factor in causing her emotional distress. (CACI No. 1600; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)
Conduct is outrageous when it is so " ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community.' " ' " (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) Our Supreme Court has described the showing required as a "high bar." (Ibid.) "Liability for intentional infliction of emotional distress ' "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." ' " (Ibid.) Malicious or evil purpose is not a prerequisite to liability. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995 .)
On appeal, Astre challenges the trial court's determination that her allegations were insufficient to support a claim of intentional infliction of emotional distress as a matter of law. Although we find this a close case, we cannot say Astre's allegations regarding McQuaid's conduct were insufficient as a matter of law, and thus we conclude it was error to find that McQuaid would have been successful on the merits of her motion to strike this claim.
(i) Outrageous Conduct
In her declaration, Astre stated she terminated an employee on November 2, 2016, "to advance and implement the diversification and other goals that California CASA and the Judicial Council wanted to have MAC meet. In explicit retaliation for these, [McQuaid] confronted [Astre] in [her] office on November 14." Astre described the November 14 meeting this way: McQuaid said "things were going to get 'worse.' . . . McQuaid recounted my traumatic personal history and accused me of using the organization to cleanse my trauma and history of sexual abuse. McQuaid told me that, 'Nobody gives a shit about your personal journey.' McQuaid continued by stating that I lacked the level of compassion, competency, connections, and specific skill needed to lead the organization—specifically stating, 'You don't know Marin. You have no clue about how things work here'—and stating that the Board did not undergo a thoughtful process to hire me. McQuaid told me that I did not belong at MAC and that McQuaid would ensure that I failed."
In the weeks after the confrontation, Astre "received communications from McQuaid and others indicating that McQuaid was claiming [Astre] was unqualified and incompetent and should be removed as Executive Director, and threatening to withdraw their support for MAC because of me." Astre—who was the only Black person among MAC's board, staff, and CASA volunteers—experienced "disrespect and insubordination from MAC staff, certain Board members, and the general public," such as people turning their back on her, not introducing or identifying her as the executive director, "airing comments" and using a tone of voice that was "demeaning" and conducting themselves in ways that "undermined" her position and authority. Astre could only explain this by the "parallel actions" of McQuaid and others described above [in her declaration] and my race."
It is not entirely clear from Astre's declaration when these alleged acts of disrespect, which were described as ongoing, started in relation to the November 14 confrontation.
Effel provided additional context. A longtime member of the board of directors of MAC, Effel stated MAC had been audited by California CASA in 2015, which "specifically called for 'a much more robust outreach plan for men, Latinos and African Americans." It was "against this backdrop" that MAC hired Astre, the first African American executive director and supervisor at MAC. Effel believed that defendants "attacked" Astre and MAC with a "far-reaching campaign of racially inspired falsehood, defamation, and intimidation, promoting and encouraging disrespect and insubordination" of Astre and the MAC board, "both within MAC, the ranks of CASA volunteers, and the public at large." Following the termination of an employee, in "mid-November 2016," McQuaid "demanded a meeting" with the board, at which some members attended. There, according to Effel, McQuaid "on behalf of herself and other CASA volunteers made a series of demands" and maintained that Astre was unqualified and the board should "order her to complete the CASA training." The board did "acquiesce[]" to the CASA training, but did not terminate Astre. McQuaid then resigned as a volunteer and withdrew her support as a donor. Thereafter, "several more" CASA volunteers and donors began to withdraw their support, with letters and withdrawals of support so "strikingly similar" that it appeared to Effel to be coordinated; "[o]n information and belief" Effel surmised that "McQuaid and other Defendants" were responsible. Eventually, MAC's CASA designation was withdrawn, based on " 'lack of community support,' " which Effel attributed to the "opposition of CASA volunteers to diversification . . . based on racially motivated falsehoods and defamation." AC was thus decertified and lost funds, and Astre resigned as MAC's executive director as a result.
Astre relies on a number of cases which she describes as involving "extended campaigns of harassment, intimidation, and abuse in employment contexts," and a "showing of outrageousness" based on "an extended campaign of infliction of emotional distress, . . . an employment context, and . . . racial animus."
For example, in Lagies v. Copley (1980) 110 Cal.App.3d 958, disapproved on another point in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738 and fn. 23, plaintiff, a newspaper reporter, stated a claim for IIED on allegations that his employer and the chair of the employer's board (persons "standing in a position of authority over him") "intentionally humiliated plaintiff, refused to print his stories, singled him out for denial or merit raises, demoted him, blackballed him, thus precluding other employment, and published [his] confidential sources, thus destroying his credibility [and] capability [sic] for being an investigative reporter" without cause or provocation. (Id. at pp. 974- 975.) In Rulon-Miller v. International Business Machines Corp. (1985) 162 Cal.App.3d 241, 255, disapproved on another point in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350-351, substantial evidence supported a jury's finding of IIED where plaintiff's supervisors "humiliate[d] and degrade[d]" her by disingenuously acting as if they did not know she was in a romantic relationship with someone who formerly worked at IBM, putting her to the apparent choice of terminating her relationship or losing her job, and then apparently terminating her for not ending the relationship.
And, in Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, our Supreme Court found the complaint stated a claim of IIED by the plaintiff Alcorn, an African American truck driver and a shop steward. Alcorn told his foreman that he had advised another employee not to drive a certain truck to the job site because he was not a member of the union. Alcorn's supervisor responded with a barrage in a "rude, violent and insolent manner," referring to him with a racial epithet three times and asserting that people of Alcorn's "goddam" race were not going to tell him about the rules, or work for him. Alcorn was fired on the spot; then the secretary of the company allegedly ratified the foreman's acts, including the discharge. Alcorn was eventually reinstated, but he sued for IIED and violation of the Unruh Civil Rights Act. In the IIED claim Alcorn alleged among other things that, on account of his race, he was "particularly susceptible to emotional and physical distress" from conduct such as that committed by defendants. (Id. at pp. 496-497.) Our Supreme Court wrote, "Although it may be that mere insulting language, without more, ordinarily would not constitute to extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient to uphold his complaint . . . . 'Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.' " (Id. at p. 499, fn. omitted.) Finding that this was such a case where "reasonable men may differ regarding defendants' liability," the order of dismissal of the IIED claim was reversed. (Ibid.)
McQuaid responds that these cases are distinguishable and McQuaid's comments were nothing like the "overtly racist" comments alleged in Alcorn. We do not find the differences dispositive. McQuaid claims Astre is simply upset with her "advocacy and job-related criticism relating to the administration of a non-profit corporation." But a fact-finder could determine otherwise. McQuaid allegedly told Astre, "You don't know Marin. You have no clue about how things work here" and that Astre did not "belong at MAC." In relation to Astre's history of sexual abuse, McQuaid appeared to threaten Astre that "things were going to get 'worse,' and that McQuaid would ensure that [Astre] failed." These statements could be construed as more than mere job-related criticism. Together with the alleged campaign to force Astre out of MAC (and perhaps out of Marin), these statements could be viewed as humiliating, degrading, and aggravating conduct in the vein of Lagies, Rulon-Miller, and Alcorn, and thus could support a finding of outrageous conduct.
McQuaid points out she was not Astre's employer and argues she had no position of authority over Astre. Astre relies on language in Newby v. Alto Rivera Apartments (1976) 60 Cal.App.3d 288, 297, disapproved on other grounds in Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 740, fn. 9, that "[b]ehavior may be considered outrageous if a defendant (1) abuse[s] a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress."
Here, McQuaid was a longtime volunteer with extensive experience with CASA and a donor, and it was alleged that she thus had some authority, and a position and ability to influence the board of directors. She apparently had the power to demand a meeting with the board (Astre's employer), and, according to Astre, wielded such influence over the board, volunteers, and donors that her efforts to ensure Astre was fired resulted in the board imposing a training requirement, volunteers and donors withdrawing their support, and MAC staff members openly disrespecting Astre.
According to Astre, McQuaid recounted Astre's "traumatic personal history" of "trauma and history of sexual abuse" and told her, "Nobody gives a shit about your personal journey." This could demonstrate McQuaid knew Astre was "susceptible to injuries through mental distress."
And McQuaid's alleged statement to Astre that she "must have ruined [Astre's] ability to sleep that night" could provide the basis for an inference that McQuaid acted intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.
(ii) Remaining Elements
To establish an IIED claim, Astre also has to show intentional or reckless disregard, actual severe emotional distress, and causation. McQuaid's statements to Astre that "Nobody gives a shit about your personal journey" and that her interaction with Astre "must have ruined [Astre's] ability to sleep that night" could suggest to a finder of fact that McQuaid acted intentionally or with reckless disregard of the probability that Astre would suffer emotional distress. Astre's description of the "distress, insult, and hurt" she felt from McQuaid's conduct and her subsequent "difficulties in sleeping, nightmares, physical problems, [and] depression" were sufficient to infer actual severe emotional distress and causation.
Without expressing any view of what would have been the ultimate merits of this cause of action had this case not been voluntarily dismissed, we cannot say at this point that the alleged conduct at issue was not actionable as a matter of law. Thus, it appears to us that this cause of action would have survived a special motion to strike had the plaintiffs not dismissed their case. For that reason, the trial court erred in awarding attorney's fees and costs as to this claim.
b. Defamation
"To prevail on a claim for defamation, plaintiff must show four elements: that defendants published the statements; that the statements were about plaintiff; that they were false; and that defendants failed to use reasonable care to determine the truth or falsity." (Hecimovich, supra, 203 Cal.App.4th at p. 470.)
The "dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact." (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) In making this determination, the court uses the " ' "totality of the circumstances test," ' " looking first at the language of the statement and then the context in which the statement was made. (Ibid.) "[S]atirical, hyperbolic, imaginative, or figurative statements are protected because 'the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.' " (Ibid.)
"An opinion or legal conclusion is actionable only ' "if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false." ' [Citation.] Thus an opinion based on implied, undisclosed facts if actionable if the speaker has no factual basis for the opinion. [Citation.] An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true. . . . In determining whether a statement is actionable opinion we examine the totality of the circumstances, starting with the language of the allegedly defamatory statement itself." (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456,1471.)
The totality of the circumstances test makes clear that Astre had no probability of prevailing on her defamation claim. Findlay's email is his response to having received a communication from Astre herself attaching what she represented was an "unsigned" and "anonymous" letter of support from a CASA volunteer. But Astre has admitted that her statement to Findlay (and unknown others) was untrue. She received a signed "letter of support" from Kate MacLellan, a CASA volunteer.
Although this letter is the focus of her defamation claim, Astre never made the letter a part of the record. In her declaration, she states it is attached, but it never was. Astre later tried to include the letter as part of a sur-reply under seal for in camera review, which the trial court would not consider. The trial court thus noted in its ruling that Astre "fails to present the very evidence she argues is dispositive of the letter's provenance."
Astre sued Findlay for defamation because he reacted incredulously to Astre's forwarding an anonymous and unsigned letter. (Recall, Findlay wrote in an email, "recently I read the 'anonymous letter' from a CASA to his/her fellow CASA's espousing the attributes of the Executive Director. Seriously? Unsigned? Seriously?") The implied fact on which Findlay's subsequent opinions (that there was "little doubt" the letter was "created" and this was "unprofessional" and "pathetic") was based is that the letter forwarded by Astre was not actually anonymous or unsigned. This implied fact was true; the letter Astre forwarded had been signed, and she knew who the author was. As a result, Astre's defamation claim must fail. We need not address any of defendants' remaining arguments as to why Astre could not prevail on this claim. D. Remaining Issues
As we have described, Astre's defamation claim is based on a few lines from Findlay's January 2, 2017 email. The rest of Findlay's email (partially redacted and attached as an exhibit to Astre's declaration) expresses his opinion about the CASA program ("in shambles") and Astre's performance as executive director (he "[did] not believe" that a recently hired employee (apparently hired by Astre) met the original job description of speaking Spanish). Astre does not allege that any of these statements are defamatory.
Astre sued defendant McQuaid for invasion of privacy. This cause of action was abandoned by Astre after the motion to strike and demurrer were filed, and, in her opposition to the attorney fees motion, Astre did not address whether she would have been successful on the merits. Nor does she do so on appeal. Astre has thus forfeited any argument that defendants would not have been successful on the merits and are not entitled to attorney fees and costs on this cause of action.
Finally, although Astre nominally appeals from the separate order denying her motion to tax costs, she does not claim any error on appeal. An appellant has the burden "to support claims of error with meaningful argument and citation to authority." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Having failed to do so, we consider the argument waived.
DISPOSITION
As to Findlay, the Order Granting Attorney's Fees and Costs and the Order Denying Motion to Tax Costs are affirmed, and Findlay is awarded his costs of appeal. As to McQuaid, she was not entitled to attorney fees and costs for the IIED claim. For that reason, as to McQuaid, we remand to the trial court to reconsider the Order Granting Attorney's Fees and Costs and the Order Denying Motion to Tax Costs in light of this opinion. The pending requests for judicial notice are denied. As between McQuaid and Astre, each party shall bear its own costs of appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.