Opinion
D073414
12-14-2018
COMMODITY TRUCKING ACQUISITION, LLC, Plaintiff and Respondent, v. THOMAS AYLOTT et al., Defendants and Appellants.
The Gilleon Law Firm and James C. Mitchell for Defendant and Appellant Thomas Aylott. Kirby & Kirby, Michael L. Kirby, Jason M. Kirby and Heather W. Schallhorn for Defendant and Appellant Gilleon Law Firm and Daniel Mark Gilleon. Johnson Law Firm and J. Craig Johnson for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-20174-00020561-CU-DF-CTL) APPEAL from an order of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed. The Gilleon Law Firm and James C. Mitchell for Defendant and Appellant Thomas Aylott. Kirby & Kirby, Michael L. Kirby, Jason M. Kirby and Heather W. Schallhorn for Defendant and Appellant Gilleon Law Firm and Daniel Mark Gilleon. Johnson Law Firm and J. Craig Johnson for Plaintiff and Respondent.
In this defamation case, plaintiff and respondent Commodity Trucking Acquisition, LLC (Commodity) sued a former employee, defendant and appellant Thomas Aylott (Aylott), as well as the attorney and law firm who were representing Aylott in an underlying employment case, defendants and appellants Daniel M. Gilleon and the Gilleon Law Firm (together Gilleon). Commodity alleged its business was slandered and libeled when Gilleon and Aylott (sometimes together Defendants) each made statements to the press while publicizing the employment action, claiming Aylott was fired because he did not cooperate when his supervisor wanted him to text about Commodity work while he was driving. Among other things, Aylott and Gilleon told reporters there were commercial trucks on the road being driven by truckers while texting, "even required to do so, [and] that's really scary for all of us." Commodity alleged these and related communications clearly implied that its own truck drivers, formerly supervised by Aylott, were being required to text while driving, even though that was contrary to company policy, unsafe, and false. (Civ. Code, §§ 45a, § 46, subd. (3) [communication is slanderous if tending directly to injure plaintiff "in respect to his office, profession, trade or business . . . ."].)
The underlying employment case is captioned Aylott v. Commodity Trucking Acquisition, LLC et al. (Super. Ct. San Diego County, 2017, No. 37-2017-00014783-CU-WT-CTL) (the employment action). It alleges causes of action for wrongful termination, retaliation and age discrimination.
In response, Aylott and Gilleon each brought an anti-SLAPP special motion to strike Commodity's defamation complaint, alleging their communications were not only protected but absolutely privileged pursuant to Civil Code section 47, subdivision (d). (Code Civ. Proc., § 425.16; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon) [two-pronged statutory test].) The trial court denied the motions in a unified ruling and Defendants appeal. The court initially found that the first prong of the anti-SLAPP test was satisfied, such that Commodity's cause of action arose from Defendants' protected activity on an issue of public interest. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395 (Baral) [proper inquiry is whether plaintiff's claims allege protected activity for the purpose of asserting them as grounds for relief].)
Pursuant to Civil Code section 47, subdivision (d), a publication or broadcast is privileged if made: "(d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued."
All statutory references are to the Code of Civil Procedure unless otherwise specified. "SLAPP" refers to "strategic lawsuits against public participation." (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1 (Navellier).)
However, the court determined under the second portion of the statutory test that Defendants' asserted absolute privilege could not be established as a matter of law, and Commodity had shown its probability of prevailing on legally sufficient claims. (§ 425.16, subd. (b)(1).) Defendants challenge the ruling denying their motions to strike, claiming the absolute privilege afforded by Civil Code section 47, subdivision (d) must preclude this litigation, because they made "fair and true" communications to the news media about the allegations of the employment action. (Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 434 (Healthsmart) [" 'Fair and true' in this context does not refer to the truth or accuracy of the matters asserted in the judicial proceedings, but rather to the accuracy of the challenged statements with respect to what occurred in the judicial proceedings."].) Defendants contend that in evaluating the communications, the trial court failed to afford them the " 'certain degree of flexibility/literary license' " that is authorized by case law. (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 99-100 (J-M Manufacturing).)
On de novo review, we accept the trial court's unchallenged determination on the first prong of the test, that Defendants adequately showed coverage by the anti-SLAPP statutory scheme. On the second statutory inquiry, the trial court correctly ruled that the motions to strike must be denied, because Commodity's responsive showing demonstrated it had a probability of prevailing. (§ 425.16, subd. (b)(2).) Even broadly applying privilege principles as allowed, we conclude Defendants cannot establish as a matter of law that the defamation complaint is barred. We affirm the order.
I
BACKGROUND
A. Aylott's Employment Action Allegations; Press Reports
Beginning in 2014, Aylott worked as Commodity's project and safety manager in its San Diego division. He supervised around 40 of its Class A licensed drivers who were hired by Commodity to haul construction materials in big rig trucks. Aylott did not use such a truck, but as project manager, he drove between work sites to communicate with and supervise drivers. Aylott was required to enforce the company's safety policies, including a "hands-free-while-driving" policy that prohibited Commodity's drivers and employees from texting while they were driving.
Commodity's division manager for San Diego, James Cloud, supervised Aylott. In March 2017, Cloud sent Aylott a text message that Aylott received while driving on business. Aylott did not respond, and later, reminded Cloud that the company's policy against texting while driving applied. He said that if Cloud wanted to contact him for an immediate response, he should call on the cellular phone and Aylott would answer it while driving, using the hands free system "Bluetooth."
Around April 6, 2017, Cloud again texted Aylott's phone while Aylott was driving from Riverside County to San Diego. He asked Aylott to stop at a job site before returning to the office. Aylott stopped to buy some water, noticed the message, and immediately called Cloud to remind him not to text him while Aylott was driving, but to call him instead. Cloud responded that Aylott should text and drive "like everyone else." Aylott said no, then got a feeling he should report the matter to Commodity's safety director, Charlie Robinson, so he did.
About a week later, Cloud reassigned Aylott to other duties and then fired him on April 12, 2017, telling him he was "too old to change [his] ways," and allegedly pointed to Aylott's refusal to text and drive as an example of this behavior.
On April 25, 2017, on behalf of Aylott, Gilleon's law firm filed the employment action, alleging retaliatory termination in violation of both Labor Code section 1102.5 and public policy, in return for Aylott's refusal to violate state law by texting while driving. Aylott also alleged a Fair Employment and Housing Act ("FEHA") claim for age discrimination.
Vehicle Code section 23123.5, subdivision (d) makes it an infraction to text while driving.
Two days later, on April 27, 2017, the San Diego Union Tribune (the newspaper) published an article about Aylott's employment action, entitled "Trucking employee claims he was fired for not texting and 'driving like everyone else.' " The article included information that Commodity employs about 100 drivers overall (40 in San Diego), and that Aylott did not drive a big rig but often drove to different job sites in his role as a project and safety manager. After Aylott was criticized by his manager for not reading or responding to texts while driving for work, the manager fired him, saying he should text and drive "like everyone else."
The newspaper article also quoted Aylott's lawyer, Gilleon, as saying "that his client's experience calls into question whether the company is taking road safety seriously." Gilleon told the reporter, "[t]his lawsuit is important because, first, it might result in this particular company changing its ways, but also to set precedent such that truckers and trucking companies might factor in the substantial costs of lawsuits when considering whether to enforce the law against texting and driving."
Also two days after the employment action was filed, KGTV's Channel 10 television news show (Channel 10) broadcast a report entitled "Trucking company fired driver for not texting and driving." The report was posted on Channel 10's website. It described the lawsuit as raising questions about public safety on San Diego's roadways, and quoted Aylott as saying, "One of my biggest fears as safety manager is having to go to that accident where we seriously injure somebody or kill somebody."
The Channel 10 report quoted Gilleon, Aylott's lawyer, as saying "We have 80,000 pounds of steel down the road, being driven by truckers driving and texting, even required to do so, that's really scary for all of us."
B. Commodity's Defamation Complaint
On June 7, 2017, Commodity sued both Defendants for defamation, alleging slander per se and libel per se. After alleging that Aylott was reassigned and then terminated for legitimate reasons, the company identified as Gilleon's defamatory published statements to the newspaper, ". . . truck drivers behind the wheels of 100,000 pound hunks of steel are texting and driving. But what this case shows is maybe it's worse than we thought — because apparently truckers are putting all our lives at risk because texting and driving is a requirement of the job." Gilleon also told the reporter, "This case confirms what we all expected but didn't want to believe," although the article did not repeat that statement.
As to Gilleon's statements to Channel 10, Commodity alleged he wrongfully claimed about it, "Well, we have 80,000 pounds of steel moving down the road being required to text and drive, and that's really scary for all of us."
As defamatory statements by Aylott to Channel 10, Commodity's complaint alleged he was referring to its truckers when claiming, "We have 80,000 pounds of steel down the road, being driven by truckers driving and texting, even required to do so, that's really scary for all of us." He told the reporter, "One of my biggest fears as safety manager is having to go to that accident where we seriously injure somebody or kill somebody."
Commodity pled these allegedly false and defamatory statements (the "press reports") clearly referred to it, and may have been made in retaliation for its actions in reassigning and terminating Aylott. As a result of the press reports, Commodity received derogatory comments from members of the public for its supposed conduct of requiring, encouraging and permitting its truck drivers to abrogate its written policy against texting while driving, to jeopardize the safety of the general public. Commodity sought damages for "diminishment of profits and overall company value," possibly as measured by the views of prospective investors or purchasers of an ownership interest, and for damage to its reputation.
C. Motions to Strike; Opposition
Aylott and Gilleon filed individual motions to strike Commodity's defamation complaint. Each defendant contended that under the anti-SLAPP statutory definitions, the press reports were protected conduct addressing issues of public interest. They requested that the court take judicial notice of various documents, including the complaint in the employment action and copies of the press reports.
Defendants' motions next asserted that the press reports about the firing qualified for absolute privilege, because they were fair and true reports made in the context of judicial proceedings. (Civ. Code, § 47, subd. (d).) Defendants cited to authority holding that when a court determines whether the fair report privilege applies, it should grant the defamation defendant "a certain degree of flexibility/literary license." (J-M Manufacturing, supra, 247 Cal.App.4th 87, 99-100.) In Gilleon's declaration, he stated that he believed that his press reports "reflected my opinion about the possible outcome of the Employment Litigation and the possible outcome of the lawsuit could have upon road safety concerns for trucking companies and truckers." He explained he was expressing his personal feelings and describing issues regarding public safety, relating to the subject matter of the employment action.
Each defendant also contended that the privilege afforded by Civil Code section 47, subdivision (c), for statements made without malice to an interested person, should also apply. The court rejected these arguments and they are not pursued on appeal.
In a single opposition, Commodity argued it had submitted evidence in support of all required elements of defamation, such that it could be determined from the allegations that persons hearing the press reports "reasonably understood that the statements were about [Commodity.]" Further, the press reports were not privileged, because they "substantially deviate[d] from the content of the filed pleadings," regarding the employment action, which alleged causes of action for wrongful termination, retaliation and age discrimination. Commodity provided declarations from its attorney J. Craig Johnson, and from Cloud and its president John F. Sullivan, describing company policies, the press reports and their responses.
In reply, Defendants mainly contended that the press reports were fair representations of the basic allegations of the employment action, and that no verbatim quotes were required in order for the fair reporting privilege to apply. They also filed evidentiary objections to portions of the declarations from Johnson, and Cloud, regarding Aylott's efforts to obtain new employment (not pertinent here). In surreply, Commodity provided supplemental declarations from its attorney Johnson and from Cloud, on how they obtained transcripts of the press reports.
The court sustained in part the evidentiary objections brought by each defendant to portions of the declarations supplied by Commodity, regarding when and how Aylott made efforts to find new employment with a competitor. Further evidentiary objections were overruled, on the issue of how the transcripts of the press reports were obtained. No arguments are being pursued concerning the discretion exercised in those evidentiary rulings and they need not be discussed, in view of the narrow privilege issues before us.
II
RULING; SCOPE OF ISSUES ON APPEAL
After hearing argument and taking the matter under submission, the court issued a written order November 1, 2017, denying each defendant's special motion to strike and making evidentiary rulings as requested. This ruling first determined that the press reports, the subject of the defamation lawsuit, amounted to protected conduct as described in section 425.16, subdivision (e)(2), "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body." Alternatively, section 425.16, subdivision (e)(3) applied, regarding "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." Further, no commercial speech exception under section 425.17, subdivision (c) was shown to apply. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) Neither party challenges those conclusions. We take it as established that this defamation lawsuit falls within the scope of section 425.16, as arising from protected activity.
Further, Defendants essentially do not dispute the adequacy of the pleading that sets forth the alleged defamatory nature of the press reports, with respect to the identification of Commodity as their subject. The only remaining issue on appeal pertains to the statutory test for examining Commodity's probability of prevailing, in view of the privilege Defendants asserted under Civil Code section 47, subdivision (d). To oppose the motion on grounds of falsity of the press reports, the declarations submitted by Cloud and Sullivan stated that Commodity had a zero tolerance policy that prohibited texting while driving. Over his two years of employment, Aylott had never reported to Cloud or to a company safety meeting that his safety manager duties required him to cite or write up a Commodity employee for texting while driving, and Cloud did not know of any such violation occurring.
To establish its defamation claim, Commodity must prove the publication contained a statement of fact (which can support a defamation action) rather than an expression of opinion (which cannot), that was false, defamatory, unprivileged, and had a tendency to injure or cause special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720; Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242-1243 [tort of defamation requires "publication"].) Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261 (Overhill).)
Initially, the trial court's ruling outlined the allegations of the employment action, with respect to Aylott's duties in supervising Commodity's truck drivers, such as driving to and from work sites to communicate with customers, supervise employees and manage projects. In determining whether Defendants established a fair reporting privilege as a bar to Commodity's complaint, the trial court specifically referred to paragraph 7 of the employment action, which alleged the background of Aylott's termination, after he and Cloud had disagreed on whether Cloud should text or telephone Aylott. The employment action had alleged, as summarized by the ruling, that "Cloud responded with obvious frustration, commenting that Aylott should text and drive 'like everyone else.' Aylott refused Cloud's illegal demand, and reiterated that texting and driving was illegal and against Commodity Trucking's policy. [¶] Thus, the allegations of the complaint are that Cloud/Commodity asked and required that Aylott text and drive." The trial court concluded:
"Absent from the complaint are any allegations that Cloud/Commodity asked or required [its truck drivers to] text and drive. Conversely, the communications at issue all reference truck drivers texting and driving. The court finds this difference significant. The court also finds the 'natural and probable effect' the alleged statements would have 'on the average person reading, viewing, or listening to the report' is that Commodity was requiring its truck drivers text and drive. Under these circumstances, the court finds Defendants fail to establish the communications as a 'fair and true' report of the Aylott complaint which is limited to Cloud asking Aylott, who was not a truck driver, to text and drive."
Since the statements in the press reports, that Cloud/Commodity required its truck drivers to text and drive and thus to risk causing road hazards, did not also appear within the complaint filed in the employment action, the court found the press reports distorted the complaint. No finding was deemed supportable that those statements were "fair and true," for purposes of the fair reporting privilege. (Civ. Code, § 47, subd. (d).) Commodity had stated a legally sufficient claim and its prima facie factual showing was found sufficient to sustain a favorable judgment. This appeal followed.
III
PROBABILITY OF PREVAILING
A. Review
We review de novo the trial court's rulings on this special motion to strike. (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 548 (Kleveland); Baral, supra, 1 Cal.5th 376, 382, 395 ["claims that are based on the conduct protected by the statute" are subject to striking]; Equilon Enterprises, supra, 29 Cal.4th at p. 67.) In light of the substantial similarities between the respective motions and opposition filed, the trial court addressed both in a single analysis, and we shall do likewise.
Where, as here, the defendants argue that as a matter of law, Civil Code section 47, subdivision (d) created an absolute privilege for the challenged press reports, the privilege assertion is " ' "relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing." ' " (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 381; see, e.g., Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [where the plaintiff's defamation action was barred by Civ. Code, § 47, subd. (b), no probability of prevailing under the anti-SLAPP statute was shown]; Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)
"Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' [Citation.] . . . [T]he court's responsibility is to accept as true the evidence favorable to the plaintiff . . . .' " (Kleveland, supra, 215 Cal.App.4th at p. 548; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) "[T]he burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment." (Baral, supra, 1 Cal.5th 376, 396.) A plaintiff may not rely solely on the pleading as support for the requisite " ' "minimal merit" ' " of the complaint. (Kleveland, supra, at p. 548.)
B. Applicable Standards on Absolute Privilege
The law confers an absolute privilege upon a fair and true report of a judicial proceeding in a public journal (Civ. Code, § 47, subd. (d)). The privilege applies if the substance of the publication captures the gist or sting of the statements made in the official proceedings. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 351 (Carver).) An anti-SLAPP motion should be granted where the plaintiff cannot establish a probability of prevailing on a defamation claim that involves a publication that qualifies for absolute privilege. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.)
The "fair report" doctrine is an extension of the litigation privilege. (See J-M Manufacturing, supra, 247 Cal.App.4th at p. 98; Healthsmart, supra, 7 Cal.App.5th at pp. 432, 434, fn. 10 [appropriate statements regarding filing of complaint, even before any judicial action taken, can support application of fair report privilege].) Reports to the press or others, on what is contained in a court filing, are not actionable unless they substantially deviate from the content of the filed pleadings and amount to something other than a "fair and true report of the proceedings." (See Burrill v. Nair (2013) 217 Cal.App.4th 357, 398 (Burrill), disapproved on another ground in Baral, supra, 1 Cal.5th at p. 396, fn. 11.) The fair report privilege is typically invoked by news media defendants, but likewise protects those accurately communicating information to the media. (J-M Manufacturing, supra, at p. 105.) To qualify for the privilege, a publication " 'need not track verbatim the underlying proceeding.' " (Carver, supra, 135 Cal.App.4th at p. 351.) In assessing privilege questions, the publication is to be measured by the natural and probable effect it would have on the mind of the average reader to whom the publication was directed. (Id. at p. 352.)
Courts have broadly construed the privilege for fair and accurate reporting about judicial proceedings, "mindful of the Legislature's intent . . . 'to preserve the scarce resources of California's courts [and] to avoid using the courts for satellite litigation.' " (J-M Manufacturing, supra, 247 Cal.App.4th at p. 101; Hawran v. Hixson (2012) 209 Cal.App.4th 256, 290 ["totality of the circumstances" test applies to evaluation of effect statements would have upon average recipient, viewed within context of making of statements].) In determining if the privilege applies, a speaker is afforded " 'a certain degree of flexibility/literary license.' " (J-M Manufacturing, supra, at pp. 99-100.) When this form of protection applies, the reported statements are "absolutely privileged regardless of the defendants' motive for reporting" them. (Hawran, supra, at p. 278 [burden on speaker to show privilege]; McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974 (McClatchy).)
The principal focus of Commodity's claim for defamation is the prospect raised in Defendants' press reports about its supposed policies presenting a danger to public safety, in the form of requirements of its truck drivers to accomplish texting while driving. There is no dispute as to the contents of those press reports, or about what has yet occurred in the underlying employment judicial proceeding. " '[W]hether or not a privileged occasion exists is for the court to decide, while the effect produced by the particular words used in an article [or broadcast] and the fairness of the report is a question of fact for the jury [citation].' " (Burrill, supra, 217 Cal.App.4th at p. 398.) Thus, for purposes of determining whether the anti-SLAPP statutory scheme properly applies to this set of allegations, we treat the applicability of the privilege as a question of law, on the existence of any bar it may raise to the defamation claims. (McClatchy, supra, 189 Cal.App.3d at p. 976; J-M Manufacturing, supra, 247 Cal.App.4th at p. 99.) The merits of the defamation claims are not yet at issue, but only the sufficiency of Commodity's prima facie factual showing to oppose Defendants' motions.
C. Analysis
Defendants first challenge the ruling by arguing the trial court failed to construe the privilege broadly enough, when focusing on paragraph 7 of the employment action. That allegation dealt with Cloud's reprimand to Aylott for not texting and driving "like everyone else." Defendants point out that the next paragraphs in the employment action complaint described Aylott's reaction, by reporting Cloud's reprimand to upper management, but nevertheless being fired on the grounds that Cloud thought Aylott was "too old to change [his] ways," such as refusing to text and drive. They thus argue the employment action included claims that Commodity was effectively requiring its truck drivers to text and drive, if the words "like everyone else" are interpreted within the context of the entire employment action, as possibly referring specifically to every one of Commodity's truck drivers. Since Aylott sued because he was told he should text and drive "like everyone else," Defendants contend the employment pleading's scope was broad enough to justify their press reports that it was "scary" that Commodity's truck drivers were texting while driving and "possibly" required to do so. (See Carver, supra, 135 Cal.App.4th 328, 351-352 [standard evaluates natural/probable effect on mind of the average reader, but " 'fair and true' requirement 'does not limit the privilege to statements that contain no errors.' "].)
Defendants also argue that more investigation of telephone records is pending in the employment action, as suggested by the press reports. Since Aylott was identified as the plaintiff and Gilleon as his attorney, the press reports arguably presented only unproven allegations (that Commodity allowed and required its big rig truck drivers to text message while driving on company business).
In Burrill, supra, 217 Cal.App.4th 357, 398, a father seeking custody of a child had alleged in an official proceeding that a psychologist recommended that a psychiatrist colleague prescribe unnecessary and harmful drugs to the child. Later, the father made statements over the radio that the psychologist was prescribing medicine without a license. When the psychologist sued the father for defamation, the court determined that the father's radio reports were so substantially different from the subject of the official proceeding, that the fair and true reporting privilege should not apply. Both Burrill, supra, at page 398 and Healthsmart, supra, 7 Cal.App.5th at pages 434 to 435 teach us that the proper inquiry focuses on comparing the content of the press statements to the actual allegations of the underlying complaint, while not becoming distracted by side issues. (Ibid. [distinctions between a malicious prosecution allegation v. a related plea bargain]; also see Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 789 [even if underlying allegations in official proceeding that are the subject of press reports are referred to only generally, the fair reporting privilege may apply if reports did not distort the basic underlying allegations].)
In comparing the statements in these press reports to the "gist or sting" of the allegations in the employment action (Carver, supra, 135 Cal.App.4th 328, 351-352), we focus on the respective job duties of Aylott, his manager Cloud, and the Commodity truckers as a whole. Aylott's underlying employment action did not plead that he himself was a truck driver and Commodity was requiring him to take an 80,000 pound steel truck down the road, while texting. His allegations about what Cloud told him to do did not support an interpretation that Cloud required him to text and drive simultaneously, but rather to do so within a prompt sequence and not to rely solely on telephoning. Read in context, Aylott's allegation in the employment action referring to Cloud's use of the term "like everyone else" could most likely be interpreted as meaning, to an average listener, that Cloud was referring to a group of other cell phone users who were more familiar than Aylott with texting, not specifically to Commodity's drivers as meeting that criteria. (Carver, supra, at p. 352 [effect of statements on average listener].)
Channel 10 attributed a statement to Aylott that, "[o]ne of my biggest fears as safety manager is having to go to that accident where we seriously injure somebody or kill somebody," impliedly due to Commodity's common practice of texting and driving. In Cloud's declaration, he referred to the zero tolerance policy for truckers texting while driving, and stated that he expected Aylott to respond in a more timely manner to the text sent to him, when Aylott was out of his vehicle at a job site. A fair reading of the official proceedings in the employment action finds them to be related to Aylott's individual performance of his job duties, and not about how the fleet drivers he supervised were performing.
Further, since the employment action raised issues of age discrimination specific to Aylott, it should be read as providing an overall context that he believed he was treated differently from younger persons, such as those presumably more familiar with texting than Aylott. The press reports lost or avoided that reference, and did not retain substantial similarity to the gist of the alleged unlawful employment practices.
With respect to Cloud's role in the firing, the employment action itself did not allege that Cloud normally communicated with truck drivers in Commodity's fleet by text message, but only that he communicated with Aylott that way, but Aylott did not answer in a manner that Cloud found acceptable. It is not a logical inference from the face of the employment action that when Cloud reprimanded Aylott, he was holding him to a standard that Commodity had established for all other truck drivers in its fleet, i.e., texting while driving a big rig truck. Gilleon's theory that more investigation of telephone records might be necessary, as suggested by the press reports, would not be of assistance in substantiating the actual claims made in the employment action. Gilleon's declaration stated that his press reports "reflected my opinion about the possible outcome of the Employment Litigation and the possible outcome the lawsuit could have upon road safety concerns for trucking companies and truckers." (Italics added.) Taken in context of Aylott's age discrimination and retaliation allegations, the effects upon a typical listener that were inferably produced by the press reports would exceed both the details of the lawsuit and the gist of the issues to be resolved within it.
Without resolving evidentiary conflicts, we can determine from the record that the press reports by each defendant were not so substantially similar to the allegations of the underlying action as to be afforded absolute privilege, as a matter of law. Commodity's opposition showing about its policies and its given reasons for terminating Aylott's employment, if accepted by the trier of fact, would be sufficient to sustain a judgment in its favor. (Baral, supra, 1 Cal.5th 376, 396.) The press reports did not accurately capture the gist or sting of the claims made in the employment action, but unduly exaggerated them. Even affording the speakers a certain degree of flexibility in describing the underlying employment action, the press reports were not germane enough to the actual content of that pleading to gain privilege protection. The trial court correctly found Commodity showed the minimal merit necessary to avoid having its defamation complaint stricken pursuant to the anti-SLAPP statute.
DISPOSITION
The order is affirmed. Costs are awarded to Respondent.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.