Opinion
D071487
05-23-2018
MARCELLE EGLEY, Plaintiff and Appellant, v. ASHLEY SPARKS, Defendant and Respondent.
Williams Iagmin and Jon R. Williams for Plaintiff and Appellant. Goldberg Jones and Daniel L. Warren for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2014-00003404-CU-DF-CTL) APPEAL from an order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Reversed; remanded with directions. Williams Iagmin and Jon R. Williams for Plaintiff and Appellant. Goldberg Jones and Daniel L. Warren for Defendant and Respondent.
Marcelle Egley and Repossession Specialists, Inc. doing business as ABA Recovery Service (ABA) sued Ashley Sparks for slander per se, trade libel, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED). The superior court granted Sparks's motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. Egley appeals, contending the court erred in determining: (1) Sparks's statement was protected speech and (2) Egley did not carry her burden of showing a probability of success on the merits. We agree with Egley on her first point. On the record before us, we cannot say that Sparks showed that his statement giving rise to the underlying complaint was protected speech. As such, we reverse the order granting Sparks's anti-SLAPP motion.
Statutory references are to the Code of Civil Procedure unless otherwise specified.
Sparks is a former employee of ABA and allegedly made disparaging and false statements about ABA. These statements formed the basis of ABA's trade libel claim against Sparks. ABA is not a party to this appeal; thus, we discuss its claim only as it is relevant to the issues before us.
FACTUAL AND PROCEDURAL BACKGROUND
We state the background facts in this anti-SLAPP context from the complaint's allegations and the evidence proffered in connection with the motion.
Egley and Sparks, who were married in 2002, began divorce proceedings in November 2013. On January 26, 2014, Sparks talked with Beverly Small and other unidentified people, and stated that Egley was diagnosed with a mental illness and he did not know if she was taking medication for her illness. Small is the wife of a board member at the church Egley and Sparks attended with their children. After Sparks's statement to Small, the church investigated Egley to ascertain whether she was fit to volunteer at the church and work with church youth.
Although the complaint alleges that Sparks stated he was not aware if Egley was taking medication, in a declaration submitted in support of Egley's opposition to Sparks's anti-SLAPP motion, Small declared that Sparks told her that Egley was not taking her medication. Egley's declaration echoed Small's declaration regarding the substance of Sparks's comment.
Egley then sued Sparks, alleging causes of action of slander per se, IIED, and NIED. The gravamen of the suit was that Sparks's comment about Egley was false because she had never been diagnosed with a mental illness.
Sparks answered the complaint. He subsequently filed an anti-SLAPP motion to strike the slander, IIED, and NIED claims. In doing so, Sparks characterized his statement to Small as being made to church leadership based upon an issue of public interest, namely the welfare of the church youth. He also argued that the common interest privilege under Civil Code section 47, subdivision (c) barred Egley's causes of action against him. Alternatively, Sparks asserted that if the common interest privilege did not apply, Egley could not demonstrate a probability of success on the merits.
In support of his motion, Sparks submitted his declaration. In that declaration, Sparks stated that Egley and he had attended a counseling session with Gary Cundiff of family counseling services. Cundiff, who is deceased, had a master's degree in counseling psychology and a bachelor's degree in behavioral science. He was a licensed marriage and family therapist, certified alcohol and drug counselor, and certified brief therapist. During a counseling session, Cundiff opined that Egley suffered from borderline personality disorder. He indicated that he would suggest further treatment for Egley, but he was concerned that Egley would be confrontational if presented with the suggestion. Sparks further declared Egley never sought treatment or used medication for her condition. In addition, based on living with Egley, Sparks stated that Egley was prone to mood swings, extreme emotions, and aggressive behavior. Sparks believed Egley's behavior became worse since the couple began divorce proceedings.
Also, Sparks declared that he informed Small of his concerns regarding Egley "strictly for the well-being and safety of the children and [he] knew that Ms. Small would know what should be done in this situation."
Egley opposed the anti-SLAPP motion. She argued that Sparks's statement was not protected speech under section 426.16, subdivision (e)(4), and even if it was, she could show a probability of prevailing on the merits. To this end, Egley asserted Sparks's statement was demonstrably untrue and was not protected under the common interest privilege codified in Civil Code section 47, subdivision (c).
In support of her opposition, Egley submitted her declaration as well as a declaration from Small. In her declaration, Egley asserted she had never been diagnosed with a mental, behavioral, or psychological disorder or condition (although she admitted to attending a counseling session with Cundiff).
In Small's declaration, she stated that Sparks mentioned "his distress about not being able to see his girls due to the ongoing disagreement" with Egley. Further, Small declared that Sparks told her that Egley "had been diagnosed with an emotional or psychological condition[] . . . for which she was not taking her medication." She also stated that she was not in a leadership position at the church, and Sparks did not ask her to take any action based on his comments.
Small could not remember the exact word Sparks used.
Before Sparks filed his reply, Egley and ABA filed a request for dismissal of the entire action without prejudice. The superior court found that the dismissal deprived it of jurisdiction to consider the merits of the anti-SLAPP motion. However, the court determined it could consider the merits for the limited purpose of ruling on Sparks's anti-SLAPP motion for attorney fees and costs. After further briefing regarding the attorney fees issue, the court awarded fees in the amount of $17,000.50.
Egley appealed the order awarding fees, and in an unpublished opinion, we reversed the order with directions to the superior court to evaluate the merits of the anti-SLAPP motion "to determine the prevailing party on the anti-SLAPP motion and . . . award reasonable attorney fees to that party for work performed both in the trial court and on appeal." (See Egley v. Sparks (May 19, 2016, D067648) [nonpub. opn.].)
On remand, Egley filed a challenge to the superior court judge under section 170.6; thus, the case was reassigned to a different courtroom. The parties filed supplemental briefing regarding the merits of the anti-SLAPP motion.
After considering the supplemental briefing, the motion, opposition, reply, and evidence submitted in support of and in opposition to the anti-SLAPP motion as well as entertaining oral argument, the superior court granted Sparks's anti-SLAPP motion. Finding the case analogous to Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry), the court reasoned that Sparks's statement involved an issue of public interest and was protected under section 425.16, subdivision (e)(4). The court also found that Egley did not carry her burden of proving a probability of success on the merits. The court observed that Egley did not offer any proof of reputational injury or damages connected to her claims of slander, IIED, or NIED. Thus, the court found that Sparks was the prevailing party and was entitled to a total of $17,750 in fees and costs, but provided that Sparks could seek his reasonable fees for appellate efforts and postremand activities.
Egley timely appealed.
DISCUSSION
I
THE ANTI-SLAPP MOTION
A. Anti-SLAPP Law and Standard of Review
"A SLAPP suit is 'a meritless lawsuit "filed primarily to chill the defendant's exercise of First Amendment rights." ' [Citations.] California's anti-SLAPP statute allows a defendant to move to dismiss 'certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity.' " (Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 613.) Per the anti-SLAPP statute: "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." (§ 425.16, subd. (b)(1).)
A two-step analysis is required when the superior court is requested to rule on a special motion to strike under the anti-SLAPP statutory framework. (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Recently, our high court summarized the showings and findings required by section 425.16, subdivision (b):
"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the 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. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
We review rulings on anti-SLAPP motions de novo. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 727.) We also consider the pleadings, and supporting and opposing affidavits, " ' "accept[ing] as true the evidence favorable to the plaintiff [citation] and evaluat[ing] the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." ' " (Ibid.)
B. Whether the Lawsuit Falls Within the Scope of the Statute
To make a showing under the first prong, Sparks need only establish a prima facie case that his alleged actions fell into one of the categories listed in section 425.16, subdivision (e). (Flately v. Maura (2006) 39 Cal.4th 299, 314.) He may do so by identifying the allegations of protected activity in the complaint and the claims for relief supported by them. (See Baral v. Schnitt, supra, 1 Cal.5th at p. 396.) As such, our analysis under the first prong focuses on the allegations of the complaint.
Section 425.16, subdivision (e), clarifies what speech constitutes an " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' . . . ." Such speech includes: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or (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." (§ 425.16, subd. (e).)
Below, the superior court found that the complaint arose from Sparks's statement to Small, which concerned an issue of public interest under section 425.16, subdivision (e)(4). Egley argues the court erred in reaching this conclusion. To this end, she asserts Sparks's comment was a "private statement[s] attacking the reputation of his estranged wife [that] did not implicate an issue of public interest." In support of her argument, Egley maintains that Terry, supra, 131 Cal.App.4th 1534, on which the court relied, is distinguishable from the instant matter. Further, Egley insists that Baughn v. Department of Forestry & Fire Protection (2016) 246 Cal.App.4th 328 (Baughn) is instructive. We, in turn, discuss Terry and Baughn, focusing on how the courts, in each of those cases, approached the issue of evaluating the existence of a public interest.
Section 425.16 " 'does not provide a definition for "an issue of public interest," and it is doubtful an all-encompassing definition could be provided.' " (Terry, supra, 131 Cal.App.4th at pp. 1546-1547.) However, courts have derived some "guiding principles" from decisional authorities. " 'First, "public interest" does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citation.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker's conduct should be the public interest rather than a mere effort "to gather ammunition for another round of [private] controversy. . . ." [Citation.]' " (Ibid.)
The Court of Appeal applied these principles in Terry, supra, 131 Cal.App.4th 1534, to conclude that communications about an alleged inappropriate relationship between adults and a 16-year-old girl were subject to a special motion to strike. There, the plaintiffs were church youth group leaders who allegedly had an inappropriate relationship with an underage member of the youth group. The church investigated and produced a report that concluded that the plaintiffs had exhibited gross misconduct. (Id. at p. 1542.) The report and its conclusions were discussed at a closed church meeting, and then subsequently at two meetings with parents of youth group members. (Id. at p. 1543.)
Plaintiffs sued the church for libel, slander, IIED, and NIED, alleging that it published a false report that plaintiffs were sexual predators. (Terry, supra, 131 Cal.App.4th at pp. 1538-1539.) The superior court granted a special motion to strike pursuant to section 425.16, and the plaintiffs appealed.
The Court of Appeal affirmed. It explained that the anti-SLAPP statute applies to even private communications, so long as they concern a public issue. (Terry, supra, 131 Cal.App.4th at p. 1546.) The court declined the plaintiffs' invitation to characterize the case as involving a purely private relationship between themselves and the girl, instead concluding that it concerned a public issue—i.e., "the societal interest in protecting a substantial number of children from predators." (Id. at p. 1547.)
The court also noted that to be a "public" issue within the meaning of the anti-SLAPP statute, an issue need not be of interest to the public at large. Instead, it is enough if the issue is of interest to " 'a limited, but definable portion of the public (a private group, organization, or community)' " and the constitutionally protected activity " 'occur[s] in the context of an ongoing controversy, dispute, or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.' [Citation.]" (Terry, supra, 131 Cal.App.4th at p. 1549.)
Unlike the court in Terry, supra, 131 Cal.App.4th 1534, the court in Baughn, supra, 246 Cal.App.4th 328 did not conclude the defendant's statement involved an issue of public interest. In that case, the Department of Forestry and Fire Protection (Cal Fire) terminated the employment of Corey Baughn for sexually harassing a female subordinate employee. (Id. at p. 332.) Baughn appealed his termination to the State Personnel Board (Personnel Board). Before the Personnel Board considered the matter, Cal Fire and Baughn settled the matter and entered into a written settlement stipulation. Among other terms, Baughn agreed not to apply for, seek, or accept future employment with Cal Fire, and Cal Fire agreed to remove any reference to its disciplinary action from Baughn's personnel file and to accept Baughn's resignation. (Ibid.)
Baughn later worked for Ukiah Valley Fire District (Ukiah Valley). Ukiah Valley had an agreement with Cal Fire to assign Ukiah Valley personnel to a Cal Fire facility during the winter months. Thus, Baughn, as an Ukiah Valley employee, would have to, from time to time, enter various Cal Fire facilities. (Baughn, supra, 246 Cal.App.4th at p. 332.)
A Cal Fire unit chief discovered that Baughn was working for Ukiah Valley and would likely be present in Cal Fire facilities when the victim also would be present. Thus, the unit chief wrote and hand-delivered a letter to Ukiah Valley's fire chief ordering Baughn not to be present in any Cal Fire facility. Later when Ukiah Valley's governing board learned of the unit chief's letter, it pressured the fire chief to fire Baughn. (Baughn, supra, 246 Cal.App.4th at p. 332.)
After his termination, Baughn and his union sued Cal Fire for breach of the written settlement stipulation, among other causes of action. (Baughn, supra, 246 Cal.App.4th at p. 332.) Cal Fire filed an anti-SLAPP motion to strike the complaint as to the union, arguing the complaint arose from protected speech within the scope of the anti-SLAPP statute. The superior court denied the motion, and Cal Fire appealed. (Id. at p. 333.)
On appeal, the appellate court concluded that the unit chief's "decision and letter were not made in connection with a public issue or an issue of public interest. They concerned only whether a former employee could access a building possibly used by a coworker he allegedly sexually harassed." (Baughn, supra, 246 Cal.App.4th at p. 333.) The appellate court specifically determined that the unit chief's decision and letter did not qualify as protected conduct under section 425.16, subdivision (e)(4). (Baughn, supra, at p. 335.) The court explained, "The issue raised in the letter did not concern a substantial number of people. It concerned the writer, the recipient, Baughn, and his earlier victim." (Id. at p. 338.)
The appellate court additionally observed that the unit chief's letter did not occur in the context of any ongoing controversy regarding sexual harassment in the workplace. Although the court acknowledged the public interest in preventing sexual harassment in the workplace, the subject letter did not concern an issue of public interest. The court explained: "[A] single letter written to ban a single firefighter from Cal Fire's facilities on account of past allegations of harassing a single employee (which allegations have been expunged from his personnel record) does not rise to a public interest under section 425.16, subdivision (e)(4)." (Baughn, supra, 246 Cal.App.4th at p. 339.) The court further expressed concern that if it accepted Cal Fire's argument that the unit chief's decision and letter concerned the public interest then "discussion of any workplace dispute . . . would qualify as a matter of public interest for purposes of the anti-SLAPP statute, something the Legislature did not design the statute to do." (Ibid.)
With Terry, supra, 131 Cal.App.4th 1534 and Baughn in mind, we turn to Egley's argument that the superior court erred in finding Sparks's comment to Small about Egley's mental fitness concerned the public interest. To this end, she characterizes Sparks's comments as "narrow [in] scope" and "undoubtedly pertain[ing] to a private matter." Egley points out that Small described her interaction with Sparks as a "short private conversation[.]" Further, Egley emphasizes that Sparks did not ask Small to take any action and did not express any concern that Egley might be unfit to carry out her responsibilities as a church volunteer. Based on her portrayal of Sparks's comment, Egley contends the comment is akin to the unit chief's decision and letter in Baughn, supra, 246 Cal.App.4th 328. We agree.
In Baughn, supra, 246 Cal.App.4th 328, the appellate court concluded the unit chief's decision and letter, at most, concerned four people: Baughn, his victim, the unit chief, and the recipient of the letter. (Id. at p. 338.) Essentially, the court depicted the unit chief's decision and letter as concerning a workplace dispute, involving a very limited number of people and not addressing any overarching workplace policy. Here, Sparks's comment is similarly limited. It concerned only one person: Egley. Sparks made the statement, and Small heard it. However, the statement did not concern either person.
Sparks attempts to expand his statement beyond a concern about Egley's mental health. In his declaration in support of his anti-SLAPP motion, Sparks claims that he informed Small of his concerns regarding Egley "strictly for the well-being and safety of the children and [he] knew that Ms. Small would know what should be done in this situation." We find no support for this statement within the context of the short conversation whatsoever. Sparks "mentioned his distress about not being able to see his girls due to the ongoing disagreement between himself and his wife[.]" Sparks then told Small that Egley "had been diagnosed with an emotional or psychological condition . . . for which she was not taking her medication." Sparks said nothing about his concern for members of the church. Sparks did not convey that he was worried about the well-being of the church youth. In short, the only concern raised by Sparks's statement was about Egley's emotional or mental health. Such an issue is not a statement of public concern. (See Baughn, supra, 246 Cal.App.4th at pp. 335, 338-339.)
Sparks did not take issue with Small's recollection of their brief conversation.
In addition, we are concerned, on the unique facts before us, of placing too much weight on Sparks's after the fact justification of his statement. In other words, although Sparks's statement to Small did not include any statement of public concern (e.g., the welfare of children), Sparks subsequent explanation for his statement, during litigation no less, attempts to create an issue of public concern that is not readily apparent from Sparks's actual words or the context in which he said them.
Additionally, the context provided by Small regarding Sparks's statement to her distinguishes the instant matter from Terry, supra, 131 Cal.App.4th 1534. In that case, the plaintiffs sued based on statements that were made in a report following an investigation about possible sexual abuse of a girl at the church. (Id. at pp. 1538-1539.) The statements in the report were explicitly made within the context of a public concern—the safety of children. Indeed, the report was prepared during an investigation into the plaintiffs' actions with certain children at church. As the court explained, the statements concerned a matter of public interest: "The issue as to whether or not an adult who interacts with minors in a church youth program has engaged in an inappropriate relationship with any of the minors is clearly a matter of public interest. The public interest is society's interest in protecting minors from predators, particularly in places such as church programs that are supposed to be safe." (Id. at p. 1547.)
Here, there is no indication whatsoever, in the statement made by Sparks or the context of Sparks's conversation with Small, that Sparks was addressing an issue of public importance, e.g., the welfare of the children at the church. Although we note the church officials investigated Egley after Sparks's statement, there is no evidence regarding what role, if any, Sparks's comment played in the officials launching the investigation.
In summary, given our de novo review here and Sparks's burden to show the lawsuit arose out of protected conduct, we cannot say that Sparks's statement about Egley's mental health concerned an issue of public interest warranting protection under section 425.16, subdivision (e)(4).
Because we conclude that Sparks has not satisfied the first prong of the anti-SLAPP analysis, we need not address the second prong. --------
DISPOSITION
The order is reversed. We remand this matter back to the superior court with directions to enter an order denying Sparks's anti-SLAPP motion, indicating that Sparks is not entitled to any attorney fees under section 425.16. Egley is entitled to her costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. IRION, J.