Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV130365
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Respondent and plaintiff Eugenia Meadows applied for workers’ compensation benefits after she was involved in a vehicle collision. Meadows was informed by the workers’ compensation insurance carrier that a nurse, appellant and defendant Barbara Farrell, would be assigned with respect to Meadows’s medical care. Meadows eventually filed an action alleging intentional infliction of emotional distress and other tort claims based on statements allegedly made by Farrell. Farrell filed a special motion to strike the operative complaint as a strategic lawsuit against public participation, within the meaning of Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court denied the motion, finding that Farrell failed to show that the complaint arose from activity protected by the anti-SLAPP statute. Farrell appeals from the order denying her motion. For reasons that we will explain, based on the record in this case we will affirm the order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
Second Amended Complaint
Meadows filed a second amended complaint alleging as follows. In December 2006, while she was employed by Land America, a vehicle rear-ended her vehicle and she suffered injuries. She applied for and received workers’ compensation benefits.
The workers’ compensation carrier for Land America was defendant Sentry Insurance. Sentry Insurance had a list of “approved” doctors, and Meadows consulted with several of them. The chiropractic care recommended by those doctors was denied by Sentry Insurance.
Sentry Insurance is not a party to this appeal.
Sentry Insurance told Meadows that a “case nurse, ” defendant Barbara Farrell, would meet with her and any doctors to “manage [her] care.” Thereafter, in February 2007, Farrell allegedly stated to Meadows “either verbatim or in essence, ‘I work with a lot of your company’s people and if you don’t get back to work in the next few weeks you could be fired.’ ” (Italics omitted and added.) Farrell also allegedly told Meadows in April 2007 “either verbatim or in essence, ‘It doesn’t matter how many times you ask for chiropractic care, you are not going to get it. That is just the way the system is and you need to get back to work, and if you don’t, you will get fired soon.’ ” (Italics omitted and added.)
In May 2007, Meadows met with Bruce Huffer, M.D., an agent or employee of Sentry Insurance, for an evaluation. Dr. Huffer allegedly told her “either verbatim or in essence, ‘There is nothing I can do for you. You need to lay off the drugs and get back to work like right now!’ ” (Italics omitted.) Meadows “took these statements to mean Dr. Huffer believed her to be addicted to and/or abusing drugs, including but not limited to prescription pain medications.” Dr. Huffer also allegedly stated in a written report “either verbatim or in essence, that [Meadows] abused and/or was addicted to drugs.” (Italics omitted.) This report was purportedly given to Sentry Insurance, Land America, and others, including Farrell. Further, the report allegedly “became part of the state-wide medical database which is available to and consulted by persons not involved in [Meadows’s] workers’ compensation case, such as providers of health care, health insurance, disability and other public benefits at both state and federal level[s], and children’s protective services agencies.” Dr. Huffer eventually issued a “one-paragraph retraction but that retraction was not published to the extent of the original report.”
Dr. Huffer was named as a defendant in a prior pleading, but he prevailed on an anti-SLAPP motion and is no longer a party to the action.
Shortly after the retraction, Meadows contacted Land America about her job. Ed Adams Jr., who was “the second in command for the entire company, ” told Meadows, “either verbatim or in essence, that she needed to get back to work.” (Italics omitted.) Adams also indicated to her that Land America had received “a report from a doctor, ” and told her “either verbatim or in essence, ‘You need to lay off the drugs, and just get back to work.’ ” (Italics omitted.) Meadows believed that the statements by Adams were the same as Dr. Huffer’s comments.
Land America eventually terminated Meadows’s employment. Meadows alleges the termination was the result of Dr. Huffer’s report being disseminated “to Land America employees other than the designated workers’ compensation human resources personnel and/or other authorized persons.” She further asserts that she was investigated by a children’s protection services agency regarding her son “based on the drug addict/drug abuser statements in Dr. Huffer’s report.” Meadows alleges that the “actions, conduct, and/or omissions” of defendants, including Farrell, resulted in “incorrect medical information” about Meadows being “entered into the medical system, ” and she has been “stigmatized incorrectly as a drug addict and/or drug abuser, ” “unemployed and unemployable, ” and “ineligible for state and/or federal benefits, including but not limited to food stamps and/or California vocational rehabilitation.”
In the second amended complaint, Meadows alleges the following causes of action against Farrell: (1) defamation, (2) intentional infliction of emotional distress, (3) negligence, (4) invasion of privacy, and (5) intentional interference with prospective economic advantage.
In the first cause of action for defamation, Meadows states that the claim in Dr. Huffer’s medical report that she “was addicted to and/or abusing drugs was false.” She alleges that Farrell “re-published Dr. Huffer’s inaccurate medical report by causing it to be disseminated” to Adams, to others at Land America other than the designated workers’ compensation human resources personnel or other authorized personnel, and/or to others outside of Sentry Insurance or Land America. Farrell also allegedly caused the “inaccurate medical information... to be included in the centralized medical database available to hospitals and other medical providers, health insurers, providers of public benefits at both the state and federal level[s], and children’s protective services agencies.” According to Meadows, Farrell did not “publish Dr. Huffer’s retraction to the extent that the original false and/or misleading information had been published.”
The second cause of action for intentional infliction of emotional distress is based on (1) Farrell’s alleged dissemination of Dr. Huffer’s oral statement about Meadows needing to “ ‘lay off the drugs and get back to work’... to any person other than the designated workers’ compensation human resources personnel of Land America, ” and (2) Farrell’s two statements to Meadows about potentially getting fired.
The remaining causes of action for negligence, invasion of privacy, and intentional interference with prospective economic advantage refer to Farrell’s alleged dissemination outside the workers’ compensation system of false, misleading, and/or private information from Dr. Huffer’s report regarding Meadows being addicted to and/or abusing drugs. The negligence and intentional interference claims also include the allegation that Farrell failed to disseminate Dr. Huffer’s retraction to the same extent.
Farrell’s Special Motion to Strike under Section 425.16
Farrell filed a special motion to strike the second amended complaint under section 425.16. She argued that all five causes of action were based on her alleged statements about Meadows potentially getting fired. Farrell contended that these alleged statements were made “in her capacity as [Meadows’s] assigned nurse case manager” and “in connection with [Meadows’s] pending workers’ compensation claim which was under consideration or review by a judicial body (Workers’ Compensation Appeals Board)....” Farrell asserted that, under these circumstances, the statements were made in furtherance of her right to free speech within the meaning of the anti-SLAPP statute. Farrell further contended that Meadows could not demonstrate a probability of prevailing on the merits of her claims, because the statements were privileged under Civil Code section 47, subdivision (b), and she could not show damages.
In a supporting declaration, Farrell stated that she was a nurse case manager for Xcel Managed Care and Disability Services, Inc. In that capacity, she was “assigned to help coordinate medical care for workers’ compensation claimants and to provide updates regarding a claimant’s vocational and medical status to the workers’ compensation carrier.” Although she denied making the statements about Meadows potentially getting fired and/or not getting chiropractic care, Farrell admitted that she had “indirect knowledge that [Meadows’s] employer, Land America, had a policy in place whereby if their injured employees were not back to work within three months they may let them go, ” and she “inform[ed]” Meadows “of this.” Farrell maintained that her statements “were made in connection with [Meadows’s] pending workers[’] compensation action and were made in [Farrell’s] capacity as [Meadows’s] assigned case manager.” Farrell stated that as a nurse case manager, she was “not responsible for authorizing or denying medical treatment, physical therapy, or chiropractic care to patients.” She also denied disseminating false, misleading, or private medical information about Meadows, or communicating to anyone that Meadows was addicted to and/or abusing drugs.
Meadows’s Opposition
Meadows opposed the motion on three grounds. First, Meadows argued that the motion failed to address the allegations in the defamation claim concerning Farrell’s republication of Dr. Huffer’s false medical report. Meadows contended that the defamation claim thus “remain[ed] viable” and the motion to strike should be denied. Second, Meadows argued that Farrell’s republications of Dr. Huffer’s written report and oral statements were not privileged under Civil Code section 47, subdivision (b). Third, Meadows asserted that there was at least “minimal merit” to each of her causes of action.
In a supporting declaration, Meadows asserted that Dr. Huffer had told her: “There is nothing I can do for you. You need to lay off the drugs and get back to work like right now!” According to Meadows, “the indication that [she] was a drug addict or abuser was entirely false.” Dr. Huffer also “issued a written report to Sentry Insurance which contained the same statement that, in essence, [Meadows] abused and/or was addicted to drugs.” Meadows stated that it was “apparent” to her that “Dr. Huffer’s statement” had “permeated” her workplace, and she was “informed and believe[d]” that her employment was terminated by Land America “as a result of the dissemination of Dr. Huffer’s report to Land America employees.” Meadows acknowledged that Dr. Huffer had “issued a retraction” but stated that it occurred after her “workers’ compensation appeal was dismissed” and that it had not been included in “the state-wide system” to her knowledge. Meadows’s declaration did not include any reference to the alleged comments by Farrell about Meadows potentially getting fired and/or not getting chiropractic care.
Farrell’s Reply
Farrell filed a reply brief, arguing that Meadow had “concede[d]” Farrell’s statements were protected speech and that Meadow could not demonstrate a reasonable probability of success on any of her causes of action.
Farrell also made evidentiary objections to certain portions of Meadows’s declaration. The record on appeal does not reflect a ruling on the objections by the trial court. As the evidence to which Farrell objected in the trial court is not relevant to the issues that we find dispositive in this appeal, we need not address whether the objections have been preserved for appeal or the merits of the objections.
Trial Court’s Order
On February 2, 2010, the trial court denied Farrell’s motion. In its written order, the court stated that “Farrell failed to satisfy her initial burden as moving party of establishing that the action arises from protected activity.”
Farrell filed a timely notice of appeal.
An order denying a special motion to strike under section 425.16 is an appealable order. (Chambers v. Miller (2006) 140 Cal.App.4th 821, 824.)
III. DISCUSSION
Section 425.16
The anti-SLAPP statute, section 425.16, was enacted in response to a “disturbing increase” in lawsuits brought for the strategic purpose of chilling a defendant’s rights of petition and free speech. (§ 425.16, subd. (a).) SLAPPs are unsubstantiated lawsuits based on claims arising from defendant’s constitutionally protected speech or petitioning activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60; Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) The anti-SLAPP statute “authorize[s] the filing of a special motion to strike to expedite the early dismissal of these unmeritorious claims. (§ 425.16, subds. (b)(1), (f).) To encourage ‘continued participation in matters of public significance’ and to ensure ‘that this participation should not be chilled through abuse of the judicial process, ’ the Legislature expressly provided that the anti-SLAPP statute ‘shall be construed broadly.’ (§ 425.16, subd. (a).)” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.)
Section 425.16 applies to any 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....” (§ 425.16, subds. (b)(1).) In ruling on an anti-SLAPP motion, a “two-step process” is employed. (Navellier, supra, 29 Cal.4th at p. 88.) “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).)” (Navellier, supra, 29 Cal.4th at p. 88.) Second, “[i]f the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1);...)” (Navellier, supra, 29 Cal.4th at p. 88.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier, supra, 29 Cal.4th at p. 89.)
“Review of an order... denying a motion to strike under section 425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) 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.)
Farrell’s Anti-SLAPP Motion
In this case, Farrell characterizes Meadows’s lawsuit against her as being based on the following two statements allegedly made by Farrell: (1) “ ‘I work with a lot of your company’s people and if you don’t get back to work in the next few weeks you could be fired, ’ ” and (2) “ ‘It doesn’t matter how many times you ask for chiropractic care, you are not going to get it. That is just the way the system is and you need to get back to work, and if you don’t, you will get fired soon.’ ” Farrell contends that these statements are protected activity covered by the anti-SLAPP statute.
In response, Meadows argues that Farrell has overlooked other allegations in the second amended complaint that are not subject to an anti-SLAPP motion. Meadows points to the defamation claim in particular, which contains the allegation that Farrell disseminated Dr. Huffer’s false medical report to individuals other than the designated workers’ compensation human resources personnel. Meadows asserts that Farrell’s republication of Dr. Huffer’s statements did not have any connection to the workers’ compensation action and therefore Farrell failed to show that the lawsuit arises from protected activity.
Assuming that the second amended complaint is based on allegations that are in addition to those identified in Farrell’s anti-SLAPP motion and are not covered by the anti-SLAPP statute, it does not necessarily follow that Farrell’s anti-SLAPP motion must be denied. The anti-SLAPP statute “allows a single cause of action to be stricken. The fact that other claims remain does not bar a trial judge from granting a section 425.16 special motion to strike.” (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150; § 425.16, subd. (b)(1).) Further, when there are allegations of protected and nonprotected activity, “it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation]....” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188, italics omitted (Martinez); see Episcopal Church Cases (2009) 45 Cal.4th 467, 477; Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319.) A cause of action is not subject to the anti-SLAPP statute if “the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity....” (Martinez, supra, 113 Cal.App.4th at p. 188.)
In this case, Farrell’s alleged statements about Meadows potentially getting fired are onlythe basis for the second cause of action for intentional infliction of emotional distress. The other causes of action in the second amended complaint are based on allegations concerning Farrell’s dissemination of Dr. Huffer’s statements. Because Farrell’s anti-SLAPP motion did not address whether these allegations in the first, third, fourth, and fifth causes of action concerning the dissemination of Dr. Huffer’s statements were protected activity, the trial court properly denied Farrell’s anti-SLAPP motion as to these causes of action. (See Navellier, supra, 29 Cal.4th at p. 88; § 425.16, subd. (b)(1).)
Turning to the second cause of action, we observe that it contains allegations that Farrell made statements about Meadows potentially getting fired, as well as other allegations of wrongful conduct by Farrell, such as those concerning her alleged dissemination of Dr. Huffer’s statements. We determine that Farrell’s alleged statements about Meadows potentially getting fired are more than “incidental” to this cause of action. (Martinez, supra, 113 Cal.App.4th at p. 188.) Meadows has alleged that such statements by Farrell about potentially getting fired “constitute extreme and outrageous conduct” and that the statements were made with the intention of causing emotional distress. Meadows is thus relying on the statements as a basis for the cause of action. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [an element of a claim for intentional infliction of emotional distress is extreme and outrageous conduct by the defendant with intention of causing emotional distress].) If these statements constitute protected activity, the second cause of action may be subject to a special motion to strike under the anti-SLAPP statute. (Martinez, supra, 113 Cal.App.4th at p. 188.) We therefore turn to the question of whether these statements are protected activity.
Protected Activity
In determining whether Farrell’s anti-SLAPP motion was properly denied, we consider whether she made an initial showing that the challenged cause of action “aris[es] from [an] act... in furtherance of [her] right of petition or free speech... in connection with a public issue.” (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at pp. 87-88.) An “ ‘act in furtherance of a person’s right of petition or free speech... in connection with a public issue’ 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.” (§ 425.16, subd. (e)(2); Navellier, supra, 29 Cal.4th at p. 88.) “In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Navellier, supra, 29 Cal.4th at p. 89.)
If the defendant’s alleged statement falls within subdivision (e)(2) of section 425.16, the defendant is not required to make a separate showing that the statement was made in connection with a “ ‘public’ issue.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113 (Briggs).) It “ ‘is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity... be made in connection with an issue being reviewed by an official proceeding.’ ” (Id. at p. 1116.)
As we have stated, Farrell characterizes the lawsuit against her as being based on the following alleged statements to Meadows: (1) “ ‘I work with a lot of your company’s people and if you don’t get back to work in the next few weeks you could be fired, ’ ” and (2) “ ‘It doesn’t matter how many times you ask for chiropractic care, you are not going to get it. That is just the way the system is and you need to get back to work, and if you don’t, you will get fired soon.’ ” Farrell contends that these statements were “ ‘made in connection with an issue under consideration or review by a... judicial body....’ ” Farrell has identified the Workers’ Compensation Appeals Board as the “judicial body.” In support of her argument that the two statements are protected speech, Farrell refers to her declaration in which she indicated that the statements she made were in her “capacity as [Meadows’s] assigned nurse case manager” and were “in connection with [Meadows’s] pending workers[’] compensation action.”
We determine, based on the record in this case, that Farrell has failed to show that her statements to Meadows about potentially getting fired were “made in connection with an issue under consideration or review by a... judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).)
As an initial matter, although Farrell fails to provide legal authority for the proposition that the Workers’ Compensation Appeals Board is a “judicial body” within the meaning of section 425.16, subdivision (e)(2), the parties agreed at oral argument, and we will assume, that the Workers’ Compensation Appeals Board qualifies as a “judicial body” or “any other official proceeding authorized by law” under the anti-SLAPP statute. (§ 425.16, subd. (e)(2).)
Farrell fails, however, to show that her two statements were “made in connection with an issue under consideration or review” by the Workers’ Compensation Appeals Board. (§ 425.16, subd. (e)(2), italics added.) The anti-SLAPP statute does not provide protection “to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with ‘an issue under consideration or review’ in the proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 (Paul).) In other words, the defendant’s statement must have a “connection to an issue under review in a proceeding, and not merely to a proceeding....” (Ibid.) If the statement “bear[s] no relationship to” or has “nothing to do with the claims under consideration” in the proceeding, then the statement will not be protected under the anti-SLAPP statute. (Ibid.; see Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1267-1268 [allegedly defamatory letter was “ ‘in connection with’ the issues” in corporation’s lawsuit against former employee, where letter “related directly to... claims for breach of contract and misappropriation of trade secrets”].)
Here, there is no allegation in the second amended complaint, or any evidence, concerning the scope of any proceeding before the Workers’ Compensation Appeals Board. The record contains only a vague reference in Meadows’s opposing declaration to her “workers’ compensation appeal [being] dismissed.” Assuming this statement is referring to a case that was pending before the Workers’ Compensation Appeals Board, there is no allegation or evidence concerning any issue that was under consideration or review in the case. Farrell therefore fails to show that the alleged statements to Meadows about potentially getting fired, including the alleged reference to chiropractic care, had a “connection with an issue under consideration or review” by the Workers’ Compensation Appeals Board. (§ 425.16, subd. (e)(2); Paul, supra, 95 Cal.App.4th at p. 866.)
Meadows stated the following in her declaration opposing the anti-SLAPP motion: “After my workers’ compensation appeal was dismissed, Dr. Huffer issued a retraction, but that report or letter has not gotten into the state-wide system to my knowledge.” The record does not contain any other evidence concerning a workers’ compensation appeal by Meadows.
We find Paul, supra, 95 Cal.App.4th 853, instructive. In Paul, the plaintiff securities broker sued the attorney who represented the plaintiff’s former brokerage clients in an arbitration proceeding against the plaintiff. (Paul, supra, 95 Cal.App.4th at pp. 856-857.) The plaintiff essentially alleged that the attorney “conducted a harassing investigation [of the plaintiff] that extended far beyond the scope of the issues subject to arbitration.” (Id. at p. 866.) The anti-SLAPP motion by the defendant attorney “rested principally on the ground that any conduct in connection with an official proceeding is protected by the statute.” (Ibid.) The Court of Appeal determined this view to be “erroneous.” (Ibid.) The court observed that “[f]airly read, the complaint alleges [the plaintiff] was injured by acts of [the attorney’s] that had no connection to the issues under review in the arbitration.” (Ibid., fn. omitted.) The court explained that “it is insufficient [for a defendant] to assert that the acts alleged were ‘in connection with’ an official proceeding. There must be a connection with an issue under review in that proceeding, ” and such a connection had not been shown in the case before it. (Id. at p. 867, italics added.)
In this case, Farrell’s attempt to demonstrate that her alleged statements were made “ ‘in connection with’ ” Meadows’s pending workers’ compensation action falls short of the showing required by section 425.16, subdivision (e)(2). Farrell fails to show that her alleged statements concerning Meadows potentially getting fired, including the reference to chiropractic care, were connected to issues being considered or reviewed by the Workers’ Compensation Appeals Board.
Farrell’s reliance on Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos) is not helpful. In Vergos, the plaintiff, who was employed at the University of California at Davis, filed a civil rights claim against the defendant, who was “ ‘an employee, agent, and manager’ ” for the Regents of the University of California (Regents), and who had denied the plaintiff’s administrative grievance alleging sexual harassment. (Vergos, supra, 146 Cal.App.4th at p. 1390.) The Court of Appeal concluded that the plaintiff’s claim “triggered section 425.16, subdivision (e)(2), i.e., ‘any written or oral statement or writing made in connection with an issue under consideration or review by... any other official proceeding authorized by law.’ ” (Vergos, supra, 146 Cal.App.4th at p. 1399.) The Court of Appeal explained that the Regents’s “protocol” for handling employee grievances was “equivalent to a state statute, ” and that “[s]tatutory hearing procedures qualify as official proceedings authorized by law for § 425.16 purposes.” (Id. at p. 1396 & fn. 8.) Although the plaintiff’s cause of action “complained of [the manager’s] ‘hearing, processing, and deciding [plaintiff’s] grievances’ ” (id. at p. 1396), the Court of Appeal determined that the “gravamen” of the plaintiff’s claim was the manager’s “communicative conduct in denying plaintiff’s grievances.” (Id. at p. 1397.) Thus, whereas in Vergos the defendant’s communicative conduct in denying the plaintiff’s grievance was indisputably related to the “issue, ” that is, the grievance, “under consideration” in the Regents’s hearing procedure, Farrell in this case fails to demonstrate that the complained of statements, regarding Meadows potentially getting fired and/or not getting chiropractic care, were connected to issues being considered or reviewed by the Workers’ Compensation Appeals Board. (§ 425.16, subd. (e)(2).)
We therefore determine, based on the record in this case, that Farrell failed to show that Meadows’s lawsuit was “one arising from protected activity, ” and thus she failed to meet her initial burden as the moving party. (Navellier, supra, 29 Cal.4th at p. 88; § 425.16, subd. (b)(1).) As Farrell failed to make the requisite threshold showing, we need not address whether Meadows demonstrated a probability of prevailing on her claims (Navellier, supra, 29 Cal.4th at p. 88; Paul, supra, 95 Cal.App.4th at pp. 868-869), or whether Farrell is entitled to attorney’s fees and costs as a prevailing defendant (§ 425.16, subd. (c)(1)). In view of our determination that Farrell failed to show that Meadows’s lawsuit arises from protected activity, we conclude that the trial court did not err in denying Farrell’s special motion to strike the second amended complaint under section 425.16.
IV. DISPOSITION
The February 2, 2010 order denying Barbara Farrell’s motion to strike under section 425.16 is affirmed. Costs on appeal are awarded to respondent Eugenia Meadows.
WE CONCUR: MIHARA, J.,MCADAMS, J.