Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-07-470377
Margulies, J.
Plaintiffs Michael McLaughlin and Kelly Stevens filed a complaint alleging, among other things, that defendant Joseph Cassidy made false reports to the police about them, trespassed in Stevens’s apartment, and slandered them. Defendants Cassidy and Granite Excavation & Demolition, Inc. (Granite) filed a special motion to dismiss under the anti-SLAPP statute, Code of Civil Procedure section 425.16, contending that plaintiffs’ tort claims are subject to the statute and without merit. The trial court dismissed two of the six causes of action, but it found the remainder either not subject to the anti-SLAPP statute or sufficiently supported by the evidence submitted. Defendants contend the trial court erred in refusing to dismiss the remaining four causes of action and should have awarded all of the attorney fees they sought. We affirm.
“SLAPP,” the common abbreviation for the statute, stands for “strategic lawsuit against public participation.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. BACKGROUND
Plaintiffs’ first amended complaint sought to recover from Granite and Cassidy, Granite’s chief executive officer and “major and dominating” shareholder, for breach of their employment agreements and from Cassidy for various torts he allegedly committed. According to the amended complaint, both plaintiffs worked for Granite under written employment agreements beginning in 2006, and continuing until their resignation in April 2007. In that month, Cassidy falsely reported to the San Francisco Police Department that McLaughlin had made criminal threats against him and that McLaughlin and Stevens had embezzled Granite company property. Police executed search warrants on the residences of both Stevens and McLaughlin. When the police entered Stevens’s condominium, which is located in a building managed by Cassidy, he accompanied them. Based on information provided by Cassidy, plaintiffs were both arrested, and McLaughlin, on parole at the time, was detained for a parole violation. The San Francisco District Attorney, however, declined to file charges against plaintiffs, and McLaughlin was eventually determined not to have violated his parole. In addition, Cassidy told other persons that plaintiffs are drug sellers, McLaughlin is a drug user, and Stevens is a prostitute. Based on these allegations, the complaint asserted causes of action for breach of plaintiffs’ employment agreements and other labor violations, slander, defamation, infliction of emotional distress, trespass, and invasion of privacy, the latter two alleged by Stevens alone.
Defendants filed a special motion to strike the tort causes of action, numbered 9th through 14th, under section 425.16, the anti-SLAPP statute. With their motion, defendants submitted evidence that plaintiffs resigned from employment with Granite on April 2, 2007. At the time, McLaughlin made threats against Cassidy and Granite and left with a box of documents that, Cassidy believed, contained important Granite business documents. The next day, April 3, McLaughlin began phoning Granite customers to inform them that he planned to start his own engineering business. At that point, Cassidy called the police to report the threats made by McLaughlin and claim McLaughlin had stolen company property. When the police executed a search warrant on a condominium in which McLaughlin and Stevens had been living, they found Granite documents and computer equipment and apparent drug paraphernalia. McLaughlin, a parolee, was taken into custody. In June 2007, Granite and Cassidy applied for an injunction against McLaughlin, making various claims about McLaughlin’s conduct. The special motion to strike argued that plaintiffs’ tort claims were based on Cassidy’s statements to the police and to the court in the injunction application and that these constituted statements protected under the anti-SLAPP statute.
Plaintiffs’ opposition to the motion argued that defendants’ special motion misstated the basis of their tort claims. They asserted that Stevens’s trespass and invasion of privacy claims were based on Cassidy’s conduct when he accompanied the police on their search of her condominium unit, the slander and defamation claims were based on Cassidy’s remarks during a business meeting conducted by Cassidy, and their emotional distress causes of action were based on both of these events.
With respect to the trespass and invasion claims, plaintiffs submitted evidence that when the police, acting on information from Cassidy, entered Stevens’s condominium unit, Cassidy also entered the unit, examined plaintiffs’ property, and took some of it, all without their permission. With respect to the defamation claims, plaintiffs’ evidence demonstrated that the condominium unit searched by police was located in The Palms, a San Francisco condominium project Cassidy owned. McLaughlin, who had a romantic relationship with Stevens, spent time there, although he denied residing in the condominium. Around this time, Cassidy conducted weekly meetings to update realtors who were engaged in selling condominium units located in The Palms on issues related to that marketing effort. At times, this included a report on criminal activity in the building. During one such meeting, Cassidy began a “personal rant” about McLaughlin and Stevens, telling the assembled salespersons McLaughlin was a drug dealer, had been imprisoned three times, was using illegal drugs with Stevens, and had stolen from Granite. Cassidy also said Stevens was “a whore or a prostitute” and he had found sex toys, pornography, and a sex video made by Stevens and McLaughlin during the search of her condominium. One of the attendees commented later during a deposition that Cassidy’s remarks “had nothing to do with what was to take place in the sales meeting.” Another described her reaction to Cassidy’s comments as, “[I]t was like, okay, it’s time to leave. This is no longer about sales, you know?” At least five persons were present at the meeting, but it was not open to residents of the building or to the public.
There was some dispute whether the condominium unit was owned by Stevens or by Stevens and McLaughlin jointly. The issue is of no import on this appeal, and we do not address it.
The trial court’s tentative ruling was to deny the motion as to the slander and defamation causes of action on the ground they were not premised on protected activity and plaintiffs demonstrated a likelihood of prevailing; to deny the motion as to the emotional distress causes of action because, while they were based in part on protected conduct, plaintiffs demonstrated a likelihood of prevailing; and to grant the motion as to the trespass and invasion of privacy causes of action. That became the ruling of the court, which was reflected in a written order.
Defendants subsequently sought an order granting attorney fees in connection with the special motion. The trial court granted only a portion of the fees defendants sought, ruling that the causes of action on which they prevailed “were of less ultimate significance” than those on which they were unsuccessful.
Defendants appeal the trial court’s denial of their special motion with respect to the slander (9th), defamation (10th), and emotional distress (11th and 12th) causes of action and the partial denial of their motion for attorney fees. Because no appeal has been taken from the trial court’s dismissal of the trespass (13th) and invasion of privacy (14th) causes of action, we do not review that portion of the court’s order. (ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1015 [courts are without jurisdiction to consider non-appealed parts of a judgment when those parts are severable from appealed parts].)
Although orders granting or denying a special motion to dismiss are often interim orders, they are appealable. (§ 425.16, subd. (i).)
II. DISCUSSION
Section 425.16 is intended as “a mechanism for screening out... at an early stage” meritless lawsuits brought for the purpose of discouraging constitutionally protected expressive activity. (Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1184; § 425.16, subd. (a).) To this end, the anti-SLAPP statute requires the court to dismiss claims covered by the statute pursuant to a “special motion to strike” unless the plaintiff is able to demonstrate a probability of success on the claims. (§ 425.16, subd. (b)(1).) Accordingly, a special motion to strike is subject to a two-step analysis, in which the court asks, first, whether the defendant has made the threshold showing that the challenged cause of action “aris[es] from any act... in furtherance of the person’s right of petition or free speech...,” as that concept is defined by the statute, and, if so, whether the plaintiff can demonstrate a likelihood of success on the claim. (Ibid.; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
Review of an order granting or denying a motion to strike under section 425.16 is de novo. “We consider ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ [Citation.] However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
A. Defamation Causes of Action
Defendants first argue that the trial court should have found the 9th and 10th causes of action subject to the anti-SLAPP statute because (1) the allegations of these causes of action concerning Cassidy’s statements at the sales meeting were joined with allegations concerning Cassidy’s reports to the police, which were plainly subject to the statute; and (2) the statements at the sales meeting were, in any event, subject to subdivisions (e)(2), (3), and (4) of section 425.16.
1. “Mixed” Causes of Action
The general rule governing causes of action that are based both on conduct protected by the anti-SLAPP statute and unprotected conduct is that “[a] mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity. [Citation.] ‘[A] plaintiff cannot frustrate the purposes of the [anti-] SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one “cause of action.” ’ ” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287–1288; see similarly Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 614.)
We first look to the allegations of the amended complaint to determine the basis for the 9th and 10th causes of action, which are entitled “Slander Per Se” and “Defamation/Slander,” respectively. The general allegations in the body of the amended complaint recount Cassidy’s report to the police, but the allegations pleaded under the headings of these two causes of action do not mention the police. Rather, they refer only to allegedly slanderous comments made by Cassidy that were “heard by Wayne Clark and other persons whose names are not known to Plaintiffs.” The evidence submitted by plaintiffs in support of their opposition to the special motion to strike, which we may consider in determining whether the claims are covered by the anti-SLAPP statute (§ 425.16, subd. (b)(2); Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330), demonstrates that the comments heard by Clark were made at the sales meeting; Clark submitted a declaration for plaintiffs attesting to his presence at the meeting and recounting Cassidy’s remarks. The allegations of these causes of action therefore plead only Cassidy’s remarks at The Palms as a basis for recovery.
Although the 9th and 10th causes of action do not expressly refer to Cassidy’s remarks to police, they do contain a boilerplate allegation that incorporates all previous allegations of the complaint. Assuming this incorporation makes the allegations about Cassidy’s report to the police a part of those causes of action, the allegations are “merely incidental” to the cause of action because they are not alleged as a basis for liability, but merely as explanatory background. (Salma v. Capon, supra, 161 Cal.App.4th at p. 1287.) Accordingly, we find no support for defendants’ contention that, for purposes of the anti-SLAPP statute, the 9th and 10th causes of action should be deemed to include Cassidy’s report to police.
2. Protected Activity
Because the sole basis for the defamation causes of action is Cassidy’s comments at the sales meeting, defendants must demonstrate those comments constituted activity protected under the anti-SLAPP statute. Defendants claim protection under section 425.16, subdivisions (e)(2), (3) and (4).
As noted above, the anti-SLAPP statute applies to causes of action that are based on a defendant’s “acts in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue.” (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1159; § 425.16, subd. (b)(1).) Subdivision (e) of section 425.16 lists four specific categories of action that define this requirement.
Section 425.16, subdivision (e)(2) (hereafter subdivision (e)(2)) includes “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.” Defendants claim that Cassidy’s remarks satisfy this category because, at the time he made the comments, an application filed by defendants for a temporary restraining order against McLaughlin was pending, based on his threats against Cassidy. We find too little connection between Cassidy’s remarks at the sales meeting and the matters actually at issue in the restraining order proceeding, however, to satisfy subdivision (e)(2). The subdivision requires the statements to be “made in connection with” an issue under consideration by a court or other body. McLaughlin’s alleged drug use, criminal history, and sexual conduct, the subject of Cassidy’s comments at the sales meeting, were not “issues under consideration” in the restraining order action. That action was focused on McLaughlin’s alleged threatening conduct toward Granite and Cassidy. To the extent McLaughlin’s alleged criminal conduct was raised in the restraining order application, it was as an ancillary evidentiary issue. In addition, Cassidy’s comments about Stevens were unrelated to the issues raised in the restraining order proceeding, to which she was not a party. Moreover, Cassidy’s comments at the sales meeting were unconnected to the restraining order proceeding. There is no evidence he made any reference to the proceeding or made the comments for a reason related to the proceeding. At most, he made claims about McLaughlin’s conduct that were, by coincidence, matters in evidence in the restraining order proceeding.
Defendants cite Annette F. v. Sharon S., supra, 119 Cal.App.4th 1146 in support of their claim to protection under subdivision (e)(2). In Annette F., one member of a couple engaged in a well-publicized and pioneering child custody lawsuit sued the other for defamation over a published letter that charged domestic violence. (Id. at pp. 1157–1158.) In finding the letter covered by subdivision (e)(2), the court noted it discussed the custody litigation and that an adoption proceeding was pending in which the claim of domestic violence was “directly at issue.” (Annette F., at p. 1161.) Here, in contrast, the charges made by Cassidy were only peripherally involved in the restraining order proceeding, and he made no mention of that proceeding at the meeting.
Subdivision (e)(3) of section 425.16 (hereafter subdivision (e)(3)) includes “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.” Because Cassidy’s remarks were made in a private meeting of a small number of persons in a private room, they fail to satisfy the “place open to the public or a public forum” requirement of subdivision (e)(3). Defendants’ argument that this subdivision is satisfied because the sales meeting satisfied this requirement is without merit. There is no dispute that only a small number of persons invited by Cassidy were present at the meeting, which was not publicly announced and was not open to the public. In support, defendants cite only Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, which involved statements in a condominium newsletter. A small, closed, private meeting is in no way comparable to a newsletter distributed to all residents of a condominium building, since the newsletter is both publicly available and constitutes a forum for communication.
Subdivision (e)(4) of section 425.16 (hereafter subdivision (e)(4)) includes “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Unlike subdivision (e)(3), subdivision (e)(4) does not require that the allegedly actionable statements were made in a place open to the public or a public forum. (See Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546 (Terry).)
While section 425.16 does not define “a public issue or an issue of public interest,” it has been the subject of a large number of judicial decisions, and these have formulated several principles to aid in characterizing conduct. “[Subdivision (e)(4)] requires the issue to include attributes that make it one of public, rather than merely private, interest. [Citation.]... For example, ‘public interest’ is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Additionally, there should be a degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest is not sufficient. Moreover, the focus of the speaker’s conduct should be the public interest, not a private controversy.... [¶]... [I]n each case where it was determined that a public issue existed, ‘the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].’ [Citation.]” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736–737.)
Defendants argue that Cassidy’s remarks about McLaughlin and Stevens were made “in connection with a public issue or an issue of public interest” because they described criminal conduct in The Palms building, which was necessarily a matter of interest to the other residents. An account of a pattern of criminal conduct that posed a threat to the other residents might have constituted a matter of public interest. (E.g., Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at pp. 476, 479 [issues relating to 3,000 condominium residents a matter of public interest].) There is no evidence, however, that plaintiffs’ alleged activities had any impact on the condominium’s residents or posed any threat to them. Many of the comments—McLaughlin’s past criminal record, the couple’s sexual conduct, and Stevens’s alleged personal character as a “whore”—had nothing to do with criminal conduct in The Palms. The remainder of the comments addressed alleged “crimes” that Cassidy presumed on the basis of inferences, justifiable or not, from his observations in Stevens’s unit. There is no evidence he had reason to believe these activities had affected or were likely to affect other condominium residents.
Rather than “ ‘conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest,’ ” Cassidy’s comments concerned merely “a private controversy.” (Hailstone v. Martinez, supra, 169 Cal.App.4th at p. 737.) Taken as a whole, the evidence suggests that Cassidy’s remarks at the sales meeting were an expression of his anger over the private dispute that had developed between him and plaintiffs. They constituted more an attack on McLaughlin’s and Stevens’s characters, than on their conduct. The purely private nature of the comments is demonstrated by the dismissive comments of the salespersons present, who found Cassidy’s remarks trivial and embarrassing. Cassidy’s “rant” was not even of interest to the salespeople present, let alone to members of the public.
Defendants’ claim that criminal activity is necessarily a matter of public interest has been soundly rejected. In Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, the defendant had conducted a campaign to impugn the reputation of the plaintiff, accusing him of stealing a collectible token in letters and publications distributed among token collectors. (Id. at pp. 1127–1128.) In addressing the defendant’s claim that his comments about the plaintiff’s theft concerned a matter of public interest because “criminal activity is always a matter of public interest,” the court held, after considering the relevant authority, “the fact that defendant accused plaintiff of criminal conduct did not make the accusations a matter of public interest.” (Id. at pp. 1134–1135; see also Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924–925 [rejecting claim that illegal conduct by supervisor of eight university employees constituted a matter of public interest].) We find no reason to disagree with these authorities, which defendants neither cite nor discuss.
Defendants rely heavily on Terry, supra, 131 Cal.App.4th 1534. In that case, the plaintiff couple sued a church for defamation based on the issuance of the report of an investigation by the church into a charge that the couple had an inappropriate sexual relationship with a youth church member. (Id. at pp. 1539–1540.) The court found the report covered by subdivision (e)(4) because “the communications... involved the societal interest in protecting a substantial number of children from predators.” (Terry, at p. 1547.) The report also contained a discussion of steps the church might take in order to protect against a repetition of similar events. (Id. at pp. 1547–1548.) In contrast to the plaintiffs in Terry, McLaughlin’s and Stevens’s conduct was not shown to present a threat to any member of the public. Further, plaintiffs’ evidence demonstrates that, unlike the report in Terry, which was a communication among church members about an issue of common interest, Cassidy’s remarks were merely the airing of a private conflict.
For the reasons stated, we find no error in the trial court’s conclusion that the 9th and 10th causes of action are not protected by the anti-SLAPP statute. Because we agree the causes of action are not covered, we need not address plaintiffs’ likelihood of prevailing.
B. Infliction of Emotional Distress Causes of Action
Defendants next argue that the trial court should have dismissed the 11th and 12th causes of action, alleging intentional and negligent infliction of emotional distress, respectively. The trial court concluded that, while these causes of action were subject to the anti-SLAPP statute because they alleged both protected and unprotected conduct, plaintiffs demonstrated they were likely to prevail on the claims at trial. Defendants raise several arguments against this conclusion, none of which we find persuasive.
We find no reason to question the trial court’s conclusion that these are mixed causes of action. Along with allegations about Cassidy’s defamatory remarks, discussed above, and his intrusion into Stevens’s condominium, the 11th and 12th causes of action contain allegations about the damage to plaintiffs caused by Cassidy’s allegedly false statements to the police. The latter statements are subject to the anti-SLAPP statute because they relate to an official proceeding. (See, e.g., Wang v. Hartunian (2003) 111 Cal.App.4th 744, 749 [reports to police are absolutely privileged under Civ. Code, § 47, subd. (b), as made in connection with an “ ‘official proceeding’ ”].) Because Cassidy’s report to the police is alleged as a basis of recovery, these allegations are not merely incidental to the causes of action. Plaintiffs were therefore required to submit evidence demonstrating that they are likely to prevail on their emotional distress causes of action.
“ ‘In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must “ ‘state[] and substantiate[] a legally sufficient claim.’ ” [Citation.] Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ ” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19–20.)
Cassidy’s reports to the police and his statements in the application for a restraining order are absolutely privileged and cannot provide a basis for plaintiffs’ recovery. (See, e.g., Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 370 [statements made to police to solicit investigation of criminal activity are privileged under Civ. Code, § 47, subd. (b)].) We therefore do not rely on evidence submitted with respect to those communications in evaluating plaintiffs’ likelihood of prevailing.
1. Eleventh Cause of Action (Intentional Infliction of Emotional Distress)
With respect to the claim for intentional infliction of emotional distress, defendants first argue that plaintiffs failed to demonstrate that Cassidy’s conduct was outrageous and that plaintiffs suffered severe emotional distress.
“A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.]... [T]he defendant’s conduct [also] must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) “With respect to the requirement that the plaintiff show severe emotional distress, this court has set a high bar. ‘Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ ” (Id. at p. 1051.) The severe emotional distress must be reasonable and justified under the circumstances. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)
Initially, we note that we cannot consider evidence of Cassidy’s allegedly false report or McLaughlin’s imprisonment, the alleged consequence of his report, as a basis for finding outrageous conduct or severe emotional distress. As noted above, Cassidy’s conduct was absolutely privileged under Civil Code section 47, subdivision (b) and therefore cannot provide a basis for recovery. (Wang v. Hartunian, supra, 111 Cal.App.4th at p. 749.)
On the issue of outrageous conduct, plaintiffs provided evidence Cassidy trespassed in Stevens’s condominium, examined her personal property, including materials relating to the pairs’ intimate sexual activity, and later used his observations during that trespass to defame both plaintiffs, calling both drug users, McLaughlin a drug seller, and Stevens “a whore or a prostitute,” and to discuss aspects of their sexual activities. We conclude this is sufficiently outrageous conduct to constitute a “ ‘prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited,’ ” which is all that is necessary for a plaintiff to survive an anti-SLAPP motion. (Vargas v. City of Salinas, supra, 46 Cal.4th at p. 20.)
Defendants claim that Cassidy’s trespass is non-actionable because it was part of a police search. The only case cited by defendants, Mann v. City of Tucson, Dept. of Police (9th Cir. 1986) 782 F.2d 790 (Mann), concerned civilian liability under the Fourteenth Amendment for participation in an allegedly illegal search. As the court noted, civilians ordinarily are not liable under the Fourteenth Amendment. (Mann, at p. 793.) Stevens’s claims are not premised on the Constitution, however, but on state common law. Similar claims in Mann were dismissed on federal procedural, not substantive grounds. (Id. at p. 794.) While we agree Cassidy is not liable under the Fourteenth Amendment, that alone does not mean he is not liable for common law trespass or invasion of privacy.
A similar result holds for plaintiffs’ evidence of emotional distress. The only evidence submitted by plaintiffs on this issue were the statements in their declarations. With respect to the nonprivileged conduct, Cassidy’s trespass in Stevens’s condominium and his comments at the sales meeting, McLaughlin stated, “The comments that Mr. Cassidy made about me caused me great shame. I was mortified when I discovered Mr. Cassidy had made these untrue comments about me.” Stevens, whose declaration tracks McLaughlin’s almost word for word, similarly stated that Cassidy’s invasion of her privacy and comments “caused me great shame. I was mortified when I discovered Cassidy had made these untrue comments about me.” We conclude these are sufficient to state the prima facie case required under the anti-SLAPP act. (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1004.)
While defendants also contend that plaintiffs provided no evidence of Cassidy’s intent to cause harm, this can readily be inferred from the nature of his conduct and the hostile relationship between the parties at the time he acted. Further, contrary to defendants’ conclusory claim, the evidence does not demonstrate that Cassidy reasonably believed his charges to be true. While he might have had some reason to believe some of his charges, there was little, if any, evidence McLaughlin was selling drugs or Stevens was engaging in sex for money.
2. Twelfth Cause of Action (Negligent Infliction of Emotional Distress)
With respect to the cause of action for negligent infliction of emotional distress, defendants contend plaintiffs failed to provide evidence of “duty, breach of the duty by failure to act reasonably, causation, and damages.” This argument misunderstands the nature of the claim.
“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation.] [¶]... [R]ecovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 984–985; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1044.) While it is necessary, as defendants argue, that a plaintiff demonstrate a duty, breach, and damages in order to recover under this cause of action (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588), these elements necessarily will be supplied by the independent tort that supports it. (Potter v. Firestone Tire & Rubber Co., at pp. 984–985; Spinks v. Equity Residential Briarwood Apartments, at p. 1044.) Here, plaintiffs satisfied the requirement of demonstrating these elements through the evidence they submitted to support the other torts alleged in the complaint: defamation, trespass, and invasion of privacy. Defendants do not contend that these torts do not rest on valid legal duties. No evidence specific to the negligent infliction cause of action was required.
Defendants also claim the negligent infliction cause of action is precluded by the “common-interest” and litigation privileges. (Civ. Code, § 47, subds. (b) & (c).) The common-interest privilege, Civil Code section 47, subdivision (c), protects “a communication, [made] without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (Taus v. Loftus (2007) 40 Cal.4th 683, 721.) Plaintiffs provided prima facie evidence that, contrary to the requirements of this privilege, Cassidy spoke with malice and was speaking to persons who had no interest in his remarks regarding Stevens and McLaughlin. This is sufficient to refute application of the privilege.
The litigation privilege, Civil Code section 47, subdivision (b), covers any statement “[i]n any (1) legislative proceeding, (2) judicial proceeding, [or] (3) in any other official proceeding authorized by law.” “ ‘The usual formulation is that the [litigation] privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’ [Citation.] The privilege ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) As discussed above, Cassidy’s remarks at the sales meeting may have been made when the restraining order application was pending, but there is no evidence they were made “to achieve the objects of the litigation” or that they had “some connection or logical relation to the action.” (Ibid.) The trespass and invasion of privacy occurred months before the proceeding was filed. We find no error in the trial court’s conclusion that plaintiffs demonstrated a likelihood of prevailing on the 12th cause of action.
Because we find no error in the trial court’s decision, we decline to address defendants’ appeal of the trial court’s attorney fees award, which contends only that they should have been awarded greater fees because they should have been granted additional relief under the anti-SLAPP statute.
III. DISPOSITION
The orders of the trial court are affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.