Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INC056508 H. Morgan Dougherty, Judge.
Scott Harlow for Plaintiff and Appellant.
Best Best & Krieger, Douglas S. Phillips, Victor L. Wolf, and Jerry R. Dagrella for Defendants and Respondents.
King J.
I. INTRODUCTION
Plaintiff, Michael Petersen, a paralegal and private investigator, filed suit against the law firm of Best Best & Krieger, LLP (BB&K) and Jerry Dagrella, an attorney with BB&K, alleging eight tort causes of action, including slander and slander per se. Each cause of action is based on Dagrella’s alleged statements to Petersen’s clients and others that Petersen was a “crook,” sued people for a living, learned how to do so while he was in prison, and stole money from his clients.
Defendants moved to strike each cause of action under the anti-SLAPP statute (Code Civ. Proc., § 425.16, subd. (a).) The trial court granted the motion on the grounds that Dagrella’s alleged statements were subject to the litigation privilege. (Civ. Code, § 47, subd. (b).) Specifically, the court ruled that the statements were made “in connection with an issue under consideration” (§ 425.16, subd. (e)(2)) in two lawsuits in which Petersen and his clients were plaintiffs. The court reasoned that the statements were relevant to Petersen’s “credibility” as the “lead plaintiff” in one suit, and to his status as an “integral” participant in the other suit. The court also ruled that the statements concerned “an issue of public interest.” (§ 425.16, subd. (e)(4).)
“‘SLAPP is an acronym for “strategic lawsuit against public participation.”’” (Flatley v. Mauro (2006) 39 Cal.4th 299, 305, fn. 1 (Flatley).)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Petersen appeals and we reverse. We conclude that Dagrella’s alleged statements were too remotely related to the issue of Petersen’s credibility to fall within the ambit of subdivision (e)(2) of section 425.16. We further conclude that the statements did not concern “an issue of public interest” within the meaning of subdivision (e)(4) of section 425.16. Accordingly, we reverse the order granting the anti-SLAPP motion and the ensuing judgment dismissing Petersen’s complaint, including its award of reasonable attorney fees and costs to defendants. (§ 425.16, subd. (c).)
II. FACTS AND PROCEDURAL HISTORY
A. Background—The Petersen I and Ramirez Actions
In October 2004, Petersen and Monika Radeva filed an antitrust action in propria persona against Century Crowell Communities (Century), a residential real estate developer. The complaint in Petersen I alleged claims for unfair competition and restraint of trade, based on allegations that Century refused to allow prospective homebuyers to choose the contractors who worked on Century’s homes during construction phases; charged excessive prices for optional items; and required prospective homebuyers to use Century’s affiliate mortgage company or pay a $10,000 penalty. Dagrella and BB&K represented Century in Petersen I.
Radeva et al. v. Century Crowell Communities et al., Riverside Superior Court case No. INC046738 (Petersen I).
In February 2005, Peterson wrote a letter to at least 750 Century homebuyers, soliciting their participation in Peterson I or in new litigation to be filed against Century. An unknown number of Century homebuyers responded to Petersen’s letter and signed contracts for Petersen to assist them in pursuing claims against Century.
Petersen is the sole proprietor of Diversified Arbitration, a company that performs private investigations and provides paralegal, litigation support, and arbitration and mediation services for law firms and other clients. The law firm of Greenblatt & Associates is one of Petersen’s clients. Petersen provides paralegal and litigation support services to the firm on a contract basis. Petersen is not an attorney.
In April 2005, Greenblatt & Associates filed an amended complaint in Petersen I on behalf of Petersen, Radeva, and nine additional plaintiffs. Previously, on March 24, 2005, Greenblatt & Associates sent a letter to Dagrella at BB&K, listing the names of approximately 74 individuals. The letter stated that the listed persons had either retained the firm to represent them or had contacted the firm. The letter asked Dagrella not to contact any of the 74 persons and to direct any correspondence to Greenblatt & Associates. Warren McCarns was one of the persons listed in the letter.
In July 2005, the court in Petersen I signed orders granting Century’s motion for judgment on the pleadings as to Petersen and compelling arbitration and staying the action as to the other plaintiffs. In August 2005, Greenblatt & Associates filed a second antitrust action against Century on behalf of at least 34 additional plaintiffs (the Ramirez action). Greenblatt & Associates hired Petersen to assist the firm in the Ramirez action. Some of the plaintiffs in Petersen I and Ramirez retained Petersen to perform investigative services for them. BB&K and Dagrella represented Century in the Ramirez action.
Ramirez et al. v. Century Crowell Communities et al., Riverside Superior Court case No. INC052721 (Ramirez).
B. The Discovery Dispute in the Ramirez Action
In late 2005 to early 2006, Century filed several discovery motions in the Ramirez action. One of the motions sought to prohibit Petersen from attending further depositions, in part on the grounds he was neither a party nor an attorney for a party. Petersen had been attending depositions with Attorney Fred Greenblatt. The motion was ultimately granted.
In opposition to the motion, Petersen submitted a declaration stating he was “an integral part” of the Ramirez action based on his investigation and research skills. Petersen also claimed that Dagrella had “smeared” him in his pleadings and “directly with clients” with whom Petersen had contractual relationships. In support of this claim, Petersen referred to the declarations of Warren and Rhonda McCarns.
The McCarns submitted substantially identical declarations in opposition to the motion. They stated that in July 2005, they received a phone call from Dagrella, who identified himself as the attorney for Century. Dagrella said he was aware the McCarns were “involved in the lawsuit” against Century and asked them whether they knew who Petersen was. The McCarns responded that Petersen worked for Diversified Arbitration and was assisting them in the Century lawsuit.
Dagrella then told the McCarns that Petersen was “a ‘crook’ [who] had served time in prison,” Petersen “made a living by suing people and that he learned how to do this while he was in prison,” and Petersen had “assisted people in the past in litigation matters and in the end . . . ‘took the money and ran.’” The McCarns understood Dagrella to be saying that Petersen stole money from his clients.
In reply, Dagrella submitted a declaration stating he had spoken with the McCarns once, on April 26, 2005, not in July 2005. Dagrella did not recall receiving the March 24, 2005, letter which listed Warren McCarns as a client or possible client of Greenblatt & Associates, and which was included in the opposition to the motion. Dagrella claimed the “crux” of his conversation with the McCarns concerned construction defect issues the McCarns had raised. The conversation had “nothing whatsoever” to do with the Ramirez action, which was not filed until August 2005. To Dagrella’s knowledge, the McCarns were not plaintiffs in any litigation, and when Dagrella attempted to notice the McCarns’ depositions, Attorney Greenblatt “reminded” him that the McCarns were not parties to the Ramirez action.
On April 15, 2005, Dagrella took the deposition of Radeva in the Petersen I action. During the deposition, Dagrella presented Radeva with a copy of the March 24, 2005, letter and asked her whether she knew any of the persons whose names were listed in the letter. Radeva responded that she did not. The letter was attached to the deposition as an exhibit.
Although the McCarns stated in their declarations that they were parties to the Ramirez action, which was filed in August 2005, neither of them are listed as plaintiffs on the Greenblatt & Associates case caption to the opposition to the motion which was filed in January 2006.
Dagrella did recall that the McCarns mentioned Petersen’s February 2005 letter and asked Dagrella what the letter was about. Dagrella did not discuss what, if anything, he told the McCarns about the solicitation letter. And he claimed the “vast majority” of the McCarns’ statements were “completely fabricated.”
C. Petersen’s Present Action Against Dagrella and BB&K (Petersen II)
Dagrella’s statements to the McCarns about Petersen being a “crook,” taking his clients’ money, and learning how to sue people for a living while he was in prison are the graveman of Petersen’s present action against Dagrella and BB&K filed in February 2006. In his verified complaint in Petersen II, Petersen claims Dagrella made the disparaging statements, not only to the McCarns, but also to Gordon and Karen Blush and Ramon Ramirez, causing them to cancel their contracts with Petersen and withdraw from the Ramirez action. Petersen further alleges that Dagrella made the same or similar disparaging statements to an unknown number of Petersen’s 300 clients in the litigation, and that the statements caused Petersen other damages. Petersen admits he served time in prison in 1989. The complaint alleges eight causes of action, including slander, slander per se, interference with contractual relationship and prospective economic advantage, invasion of privacy (disclosure of private facts and false light), and intentional infliction of emotional distress.
Petersen v. Dagrella et al., Riverside Superior Court case No. INC056508 (Petersen II).
D. Defendants’ Anti-SLAPP Motion
Defendants, Dagrella, and BB&K moved to strike the entire complaint in Petersen II as a SLAPP suit. (§ 425.16.) In support of the motion, Dagrella submitted a declaration categorically denying he made any of the alleged derogatory statements to the McCarns or to anyone else. He again claimed he spoke to the McCarns on April 26, 2005, concerning construction defect issues and again denied that the McCarns told him they were represented by any attorneys in any litigation.
Defendants also submitted declarations from Gordon Blush and Ramon Ramirez. Both said they dismissed their claims in the Ramirez action in December 2005, but they denied they did so because Dagrella or anyone from BB&K made any statements about Petersen. They said Dagrella first contacted them in January 2006 and asked them to sign declarations refuting Petersen’s claims. They also denied hiring Petersen directly, and said they understood Petersen was a paralegal for Greenblatt & Associates.
In opposition to the SLAPP motion, Petersen submitted a declaration detailing how Dagrella had repeatedly “smeared” him and made derogatory comments to him at depositions he had attended. Petersen also demonstrated that Gordon Blush and Ramon Ramirez had signed contracts hiring Petersen to assist them in the Ramirez action.
In support of their motion, Dagrella and BB&K argued that, even if Dagrella made the disparaging statements about Petersen, the statements were subject to the litigation privilege (Civ. Code, § 47, subd. (b)) and this made them “equally protected by [section] 425.16.” In opposition to the motion, Petersen argued that Dagrella’s statements were not privileged and, in any event, did not fall within section 425.16. The parties also disputed whether Petersen had shown a reasonable probability of prevailing on his claims.
E. The Trial Court’s Ruling on the Anti-SLAPP Motion
At the hearing on the motion, the trial court said the allegations of the complaint in Petersen II “pled directly into the [litigation] privilege.” When Petersen asked whether the motion was being granted because Dagrella’s statements were relevant to the issue of his credibility in Petersen I and Ramirez, the court responded, “No. Credibility is too broad. It has to have some nexus with the underlying litigation.”
The order granting the motion states, however, that the statements “are rationally connected to the issues in Petersen I because they concern the credibility of Petersen, the lead plaintiff. They are also connected to the issues in Ramirez because they concern the credibility of Petersen . . . .” The order also states that each of the eight causes of action in Petersen II “also come within . . . section 425.16[, subdivision] (e)(4) because those causes of action are based on defendant’s litigation activity. [Citation.]”
III. DISCUSSION
A. Standard of Review and Burden of Proof
Section 425.16 (the anti-SLAPP statute) is designed to eliminate SLAPP’s in the early stages of litigation. It permits a special motion to strike 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 . . . .” (§ 425.16, subd. (b)(1).) An “act in furtherance of a person’s right of petition or free speech” encompasses four types of conduct:
“(1) any written or oral statement or writing made before a . . . 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 . . . 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; (4) or 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).)
The purpose of the anti-SLAPP statute is to prevent and deter lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech, petition, and redress of grievances. (Flatley, supra, 39 Cal.4th at p. 312.) The statute is to be broadly construed (§ 425.16, subd. (a)); however, it “does not apply in every case where the defendant may be able to raise a First Amendment defense to a cause of action. Rather, it is limited to exposing and dismissing SLAPP suits—lawsuits ‘brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances’ ‘. . .’ (§ 425.16, subds. (a), (b).)” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
In determining whether an action is a SLAPP, courts engage in a two-step process. The court first 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).) A defendant meets this burden by showing that the act underlying the plaintiff’s claim fits one of the four categories spelled out in section 425.16, subdivision (e). If the defendant does not meet this burden, the court must deny the motion. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.)
If an adequate step one showing is made, the court must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) “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 v. Sletten (2002) 29 Cal.4th 82, 87-89.)
In analyzing whether the defendant had met its burden of showing that the “arising from” or threshold requirement is met, the court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) The court does not weigh credibility or compare the weight of the evidence; rather, it must accept as true the evidence favorable to the plaintiff and evaluate the defendant’s evidence to determine whether it defeats the plaintiff’s evidence as a matter of law. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) We review a trial court’s ruling on a SLAPP motion de novo. (Blackburn v. Brady (2004) 116 Cal.App.4th 670, 676.)
B. Analysis
Petersen contends the trial court erred in granting the anti-SLAPP motion because Dagrella’s statements as alleged in the Petersen II complaint are not subject to the litigation privilege (Civ. Code, § 47, subd. (b)) and, in any event, do not arise out of any acts in furtherance of Dagrella’s rights of petition or free speech.
Defendants argue that Dagrella’s statements are subject to the litigation privilege because they were made “in connection” with the litigation in Petersen I and/or Ramirez. Furthermore, citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs), defendants argue that “[s]tatements protected by the litigation privilege . . . are equally protected by [section] 425.16.”
Defendants are mistaken. Statements protected by the litigation privilege are not equally protected by section 425.16. (See Flatley, supra, 39 Cal.4th at pp. 322-325.) Moreover, defendants did not meet their threshold burden of demonstrating that the statements arose from any acts in furtherance of Dagrella’s rights of petition and free speech.
1. The Litigation Privilege and Section 425.16
As noted by the court in Flatley, California courts “have looked to the litigation privilege as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry—that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision (e)(1) and (2).” (Flatley, supra, 39 Cal.4th at pp. 322-323.) The court cited Briggs as an example of one such case. (Flatley, supra, at p. 323.)
The court explained, “in Briggs, we bolstered our interpretation of the scope of the protection afforded to litigation-related communications under the anti-SLAPP statute by looking at whether our result was consistent with the scope of the protection afforded to such communications by the litigation privilege. Nowhere in Briggs, however, did we suggest, much less hold, that the scope of those protections is identical in every respect.” (Flatley, supra, 39 Cal.4th at p. 323, italics added.)
The court further explained that, “‘the litigation privilege [of Civil Code section 47, subdivision (b)] is an entirely different type of statute than section 425.16.’” (Flatley, supra, 39 Cal.4th at p. 323.) “‘The former enshrines a substantive rule of law that grants absolute immunity from tort liability for communications made in relation to judicial proceedings [citation]; the latter is a procedural device for screening out meritless claims [citation].’ [Citation.]” (Id. at p. 324.)
The statutes also serve “quite different purposes.” (Flatley, supra, 39 Cal.4th at p. 322.) The litigation privilege “serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by counsel of their clients, and reinforcing the traditional function of the trial as the engine for the determination of truth. . . . (Silberg v. Anderson [(1990) 50 Cal.3d 205, 214 (Silberg)] . . . .)” (Id. at p. 324.)
In contrast, “[s]ection 425.16 is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process (§ 425.16, subd. (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. (§ 425.16, subd. (b)(1).)” (Flatley, supra, 39 Cal.4th at p. 324.)
2. Defendants Did Not Meet Their Threshold Burden
Defendants argued in the trial court, as they argue on this appeal, that Dagrella’s alleged statements concerning Petersen were protected by the litigation privilege because they were “made in connection with” the Petersen I and/or Ramirez action. From this premise, defendants reason that the statements were “made in connection with an issue under consideration or review by a judicial body” within the meaning of section 425.16, subdivision (e)(2). (Italics omitted.) They also claim the statements are protected under subdivision (e)(4).
As discussed, the litigation privilege is not coextensive with any conduct described in section 425.16, subdivision (e). (Flatley, supra, 39 Cal.4th at pp. 322-325.) We note that in Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 6, a case decided by this court after Briggs but before Flatley, we equated the defendant’s step one burden of making a prima facie showing that her allegedly defamatory letter came within the ambit of section 425.16, subdivision (e)(2), with the distinct question whether the statements in the letter were subject to the litigation privilege. Flatley has implicitly disapproved of this approach, however.
We therefore address whether defendants have met their burden of making a prima facie showing that Dagrella’s alleged statements are protected by section 425.16, subdivision (e)(2), independently of whether the statements are protected by the litigation privilege. However, we look to the litigation privilege for guidance on this issue, particularly the relevancy limitation on the litigation privilege. (See, e.g., Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1145-1146 [statement must have “functional connection” to litigation in order to fall within the privilege].) As will appear, the relevancy limitation on the litigation privilege is directly analogous to whether a statement was made “in connection with an issue under consideration . . . by a . . . judicial body.” (§ 425.16, subd. (e)(2), italics added.) We then briefly address whether the statements are protected by section 425.16, subdivision (e)(4).
Indeed, whether the litigation privilege immunized defendants from liability for Petersen’s tort claims is strictly relevant only to the second prong of the two-step inquiry under section 425.16—that is, to whether Petersen could establish a probability of prevailing on the merits of his claims. (See Paul v. Friedman (2002) 95 Cal.App.4th 853, 865, fn. 23 (Paul).)
(a) Section 425.16, Subdivision (e)(2)
Section 425.16, subdivision (e)(2), “does not accord anti-SLAPP 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, supra, 95 Cal.App.4th at pp. 865-866, italics added.)
Defendants argue that Dagrella’s alleged statements that Petersen was a “crook,” sues people for a living, learned how to do so while he was in prison, and takes his clients’ money, were “rationally connected to the issues” in Petersen I and Ramirez “because they concern the credibility of Petersen.” (Italics omitted.) They assert that Petersen’s credibility was an issue under consideration in both cases because Petersen was the “lead plaintiff” in Petersen I, and described himself as “‘integral’” to the Ramirez action “because of his investigation and research skills.” (Italics omitted.)
Assuming without deciding that Petersen’s credibility was an issue under consideration or review in Petersen I and Ramirez at the time Dagrella’s statements were made, we disagree that the statements were made “in connection” with the issue of Petersen’s credibility within the meaning of section 425.16, subdivision (e)(2). The statements were too remotely related to the issue of Petersen’s credibility to bring them within the scope of subdivision (e)(2).
Paul, supra, 95 Cal.App.4th 853 illustrates that an act or statement is not made “in connection with” an issue under consideration or review unless it is directly relevant to the issue. A remote or tenuous relationship to the issue will not suffice. As the court said, section 425.16, subdivision (e)(2) does not apply to just any act or statement “having any connection, however remote, with an official proceeding.” (Paul, supra, at p. 866.)
Paul, a securities broker, sued several of his former brokerage clients and their lawyer, Friedman. Friedman represented the clients in an arbitration against Paul, in which the clients sought damages from Paul for, among other things, Paul’s negligent investment recommendations. Paul was completely vindicated in the arbitration, and later sued Friedman and the brokerage clients, alleging several tort claims based on Friedman’s “investigation” of Paul that far exceeded the scope of permissible discovery in the arbitration. (Paul, supra, 95 Cal.App.4th at pp. 856-857.) In conducting the investigation, Friedman made public disclosures of embarrassing private facts about Paul, “including his financial affairs, spending habits, taxes and tax liabilities, relations with his clients, and close personal relationship with another individual (as well as the allegations made in the arbitration).” (Id. at p. 857.)
Friedman moved to strike Paul’s complaint under section 425.16, on the ground its allegations were based on Friedman’s efforts as the brokerage clients’ counsel to diligently pursue their petition rights. In his affidavit, Friedman asserted his investigation concerning Paul’s personal financial condition and his drug and alcohol use were relevant to prove whether he acted negligently or breached his fiduciary duties to the claimants. (Paul, supra, 95 Cal.App.4th at p. 858.) Paul submitted evidence that the arbitrators sustained objections to Friedman’s discovery requests for documents “showing ‘treatment for alcohol, drug, substance abuse, psychological or psychiatric conditions,’” and documents concerning Paul’s personal financial affairs. (Id. at p. 859.)
The appellate court concluded that Friedman’s motion to strike was erroneously granted as to Paul’s tort claims, because Friedman did not make a prima facie showing that the claims fell within section 425.16, subdivision (e)(2). (Paul, supra, 95 Cal.App.4th at pp. 861, 865.) The court said, “[a] lawsuit seeking redress for a harassing investigation of topics unrelated to those under consideration in an official proceeding is not the type of ‘abuse of the judicial process’ that the Legislature sought to prevent when it enacted the anti-SLAPP statute.” (Id. at p. 861, italics added.) The court rejected Friedman’s claim that his investigation of Paul’s personal financial affairs and drug and alcohol use was relevant to whether Paul’s judgment was impaired and, by extension, to whether Paul gave fraudulent or negligent investment advice to the claimants. (Id. at pp. 867-868.)
Although the arbitration panel had permitted some testimony concerning Paul’s conviction for driving under the influence and other “distractions” in his personal life, the appellate court explained, “a lawyer’s attempt to inject an issue into a proceeding does not render the issue relevant, nor can the attempted injection of an irrelevant matter transform it into an issue ‘under consideration or review’ [(§ 425.6, subd. (e)(2)] in the proceeding.” (Paul, supra, 95 Cal.App.4th at pp. 867-868.) In sum, the court concluded that, “[t]he issues actually under review by the arbitrators bore no relationship to the allegations in Paul’s lawsuit.” (Id. at p. 868, italics added.)
Here, too, Dagrella’s alleged statements that Petersen was a “crook,” sued people for a living, learned how to do so while he was in prison, and took or stole his clients’ money after a case settled, were irrelevant to the issues under consideration or review in Petersen I and Ramirez, and bore no practical relationship to the issue of Petersen’s credibility. Defendants’ argument that the statements were relevant because they had some bearing on Petersen’s “credibility” as the “lead plaintiff” in Petersen I or as an “integral” participant in Ramirez is simply too tenuous to bring the statements within the scope of section 425.16, subdivision (e)(2). To the extent Petersen’s credibility was or would be an issue under consideration or review in Petersen I or Ramirez, Dagrella’s alleged statements were too remotely related to the issue.
As noted, the “in connection with” requirement of section 425.16, subdivision (e)(2) is directly analogous to the requirement, in the context of the litigation privilege, that a statement, in order to be protected by the privilege, must be reasonably relevant or closely related to an issue in a pending or anticipated action. Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140 (Nguyen) illustrates the importance of enforcing the “reasonable relevancy” requirement in the context of the litigation privilege.
In Nguyen, the plaintiff, Nguyen, sued his former employer, Proton, and Proton’s attorneys for defamation and other tort claims. (Nguyen, supra, 69 Cal.App.4th at p. 145.) The trial court granted summary judgment in favor of defendants on the ground their statements about Nguyen, which formed the basis of Nguyen’s tort claims, were subject to the litigation privilege. (Civ. Code, § 47, subd. (b).) The appellate court reversed. (Nguyen, supra, at p. 143.)
After working for Proton for several months, Nguyen went to work for Excelsior, a competitor of Proton. Thereafter, Proton’s attorneys sent a letter to Excelsior, alleging that Nguyen had been unlawfully soliciting Proton’s customers on behalf of Excelsior, and that Nguyen and others were “raiding” Proton’s employees to induce them to work for Excelsior. The letter warned that Excelsior would be sued for unfair competition, and stated, “We think you should be aware that [Nguyen] was working for Proton under a work furlough program . . . [and] was in prison for repeatedly and violently assaulting his wife. . . .” (Nguyen, supra, 69 Cal.App.4th at pp. 143-144.) Proton’s attorneys later investigated Nguyen’s criminal history, and learned that Nguyen had not served time in prison for assaulting his wife but had instead served time in jail for shooting at an unoccupied vehicle and vandalism. Proton’s attorneys sent a second letter to Excelsior, correcting the error and noting Nugyen had pleaded guilty to “these felonies.” (Id. at pp. 144-145.)
Quoting Silberg, supra, 50 Cal.3d at pages 219 and 220, a leading case on the purposes and scope of the litigation privilege, the court in Nguyen observed that “‘a statement made in a judicial proceeding is not privileged unless it has some reasonable relevancy to the subject matter of the action.’” (Nguyen, supra, 69 Cal.App.4th at p. 147, italics added.) Although the court also acknowledged that, broadly speaking, statements made prior to litigation and having “‘some relation’” to the anticipated litigation could fall within the scope of the privilege (id. at pp. 147-148, citing Rubin v. Green (1993) 4 Cal.4th 1187, 1194), the court stressed that “the privilege obviously cannot extend to anything that is written just because it is contained in a prelitigation demand letter.” (Nguyen, supra, at p. 148.)
The Nguyen court interpreted Silberg and some pre-Silberg cases (e.g., Younger v. Solomon (1974) 38 Cal.App.3d 289), as demonstrating that the “reasonable relevancy” requirement was an important limitation on the scope of the litigation privilege. (Nguyen, supra, 69 Cal.App.4th at pp. 148-150, and cases cited.) As the Nguyen court put it, Silberg and other cases showed that “[Civil Code] section 47[, subdivision] (b) does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals.” (Nguyen, supra, at p. 150.)
The Nguyen court accordingly had “no difficulty” in holding that the references to Nguyen’s criminal record in the defendants’ prelitigation demand letter to Excelsior fell outside the scope of the privilege. More important than the defendants’ initial error regarding Nguyen’s criminal history (he had not served time in prison for assaulting his wife, but had only served time in county jail for shooting at an unoccupied vehicle and vandalism), the court stressed that “any ‘connection’ between such a conviction and the civil unfair competition focus of [the] demand letter is, to be charitable about it, tenuous.” (Nguyen, supra, 69 Cal.App.4th at p. 151.) The court pointed out that Nguyen’s proclivity to engage in unfair competition was “in no way, shape or form predicable” by whether he “(a) beats his wife[,] (b) shoots at unoccupied cars, or (c) commits vandalism.” (Ibid.)
Furthermore, the court rejected as “equally attenuated” defendants’ theory that Nguyen’s criminal history was relevant to Proton’s anticipated unfair competition action because, if Nguyen became a witness in that action, his criminal history would be admissible to impeach him under Evidence Code section 788. (Nguyen, supra, 69 Cal.App.4th at p. 151.) The court said the defendants “overlook the fact that admission of a prior felony conviction in a civil action is very much subject to the exercise of a court’s discretion under Evidence Code section 352. [Citation.] Second, it simply stretches credulity to the breaking point to believe that any part of respondents’ motivation for including a reference to appellant’s alleged wife beating was a desire to advise Excelsior that he might be subject to impeachment if used as a witness in a civil unfair competition action.” (Ibid.) Instead, the court said that “possibly the only reasonable” interpretation of the demand letter was that it was “vindictive” behavior on the part of Proton and its attorneys. (Id. at p. 152.)
Just as the reasonable relevancy requirement was not met in Nguyen, the directly analogous “in connection with” requirement of section 425.16, subdivision (e)(2) has not been met in this case. Dagrella’s statements that Petersen was a “crook,” sued people for a living, learned how to do so while in prison, and took his clients’ money and ran after a case settled were too remotely related to the issue of Petersen’s credibility to fall within the scope of section 425.16, subdivision (e)(2). Indeed, in view of the circumstances surrounding Dagrella’s alleged statements about Petersen to the McCarns, it strains credulity to believe they were made “in connection with” impeaching Petersen’s credibility as a witness in either Petersen I or Ramirez.
Despite Dagrella’s denial that he made the alleged statements to the McCarns and despite his claim that he only spoke to the McCarns about a home warranty matter, we are required to assume that Dagrella made the derogatory statements to the McCarns, as the complaint in Petersen II alleges. (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212.) Dagrella admitted he spoke to the McCarns in April 2005. The McCarns recalled that the conversation occurred in July 2005. In either event, the conversation took place while Petersen I was pending but before Ramirez was filed in August 2005.
It is undisputed that the McCarns were not parties to Petersen I and never became parties to Ramirez. Still, the evidence showed that Dagrella and BB&K were anticipating the filing of the Ramirez suit at the time Dagrella made the alleged statements to the McCarns. Dagrella knew Petersen had been soliciting Century homeowners to be plaintiffs in a second lawsuit after Petersen I was filed. Indeed, he claimed that the McCarns mentioned Petersen’s solicitation letter to him during their conversation and asked him what it was about. He also claimed he did not believe the McCarns were represented by Greenblatt & Associates and were not parties to any litigation when he spoke to them.
In view of Dagrella’s claims, it is unreasonable to believe he made the derogatory statements about Petersen to the McCarns to impeach Petersen’s credibility in Petersen I or Ramirez. In any event, defendants’ attempt to link Dagrella’s alleged statements to Petersen’s credibility is too attenuated for the same reasons the courts in Paul and Nguyen rejected analogous attempts to link irrelevant or remotely related evidence to the issues actually under consideration. We therefore conclude that Dagrella’s statements to the McCarns and others, including Gordon Blush and Ramon Ramirez, were too remotely related to the issue of Petersen’s credibility in Petersen I or Ramirez to fall within the ambit of section 425.16, subdivision (e)(2).
As discussed, the complaint in Petersen II alleges Dagrella made the same or substantially similar statements to Gordon Blush, Ramon Ramirez, and an unknown number of Petersen’s other clients or potential clients.
At oral argument on this appeal, counsel for defendants argued for the first time that Dagrella’s alleged statements to the McCarns were made in response to the McCarns’ question concerning Petersen’s March 2005 solicitation letter and what it was about. For this reason, counsel argued that alleged statements must be deemed made “in connection with” the pending litigation in Petersen I or the anticipated litigation in Ramirez. (§ 425.16, subd. (e)(2).)
First, the record belies counsel’s claim that Dagrella’s alleged statements were made in response to the McCarns’ query about Petersen’s solicitation letter. In his reply declaration in support of Century’s motion to exclude Petersen from attending depositions in the Ramirez action, Dagrella pointedly did not discuss what, if anything, he told the McCarns in response to their inquiry about Petersen’s solicitation letter. Instead, he claimed that the “crux” of his conversation with the McCarns concerned construction defect issues the McCarns raised, and had “nothing whatsoever” to do with the Ramirez action, which was not filed until August 2005. Dagrella also claimed that the “vast majority” of the McCarns’ statements were “completely fabricated.”
Moreover, assuming that Dagrella made the alleged defamatory statements about Petersen in response to the McCarns’ inquiry about Petersen’s solicitation letter, the statements did not meet the “reasonable relevancy” requirement of the litigation privilege or the analogous “in connection with” requirement of section 425.16, subdivision (e)(2). As discussed, the statements were too remotely related to Petersen’s credibility or to other issues under consideration in Petersen I.
Counsel also relied on Rohde v. Wolf (2007) 154 Cal.App.4th 28 (Rohde), for the proposition that statements subject to the litigation privilege also fall within the ambit of section 425.16, subdivision (e)(2). Counsel noted that Rohde was decided after Flatley but drew no distinction between statements subject to the litigation privilege and statements made “in connection with an issue under consideration or review by a judicial body” within the meaning of section 425.16, subdivision (e)(2).
Counsel’s reliance on Rohde is also unavailing. The defendant in Rohde was an attorney who left a message on the answering machine of a real estate listing agent, accusing the agent and the plaintiff of engaging in a conspiracy to defraud the defendant-attorney’s client. (Rohde, supra, 154 Cal.App.4th at p. 33.) The issue in Rohde was not whether the defendant’s statements met the “reasonable relevancy” requirement of the litigation privilege. The issue, instead, was whether the defendant’s prelitigation statements were related to litigation that was “‘contemplated in good faith and under serious consideration.’” (Rohde, supra, 154 Cal.App.4th at pp. 36-37, citing Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.) The court held that the defendant’s statements met this requirement, because the “spectre of litigation loomed over all communications between the parties” at the time the statements were made. (Rohde, supra, at p. 36.)
Here, as in Rohde, Petersen and Century were in the throes of litigation at the time Dagrella made his alleged statements about Petersen. But here, as in Paul, Dagrella’s statements were too remotely related to the litigation to fall within with the ambit of section 425.16, subdivision (e)(2).
(b) Section 425.16, Subdivision (e)(4)
Defendants further claim that Dagrella’s statements are protected by section 425.16, subdivision (e)(4), which expressly applies only to conduct or statements made “in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(4).) “The ‘public interest’ component of [section 425.16, subdivision (e)(4)] is met when ‘the statement or activity precipitating the claim involved a topic of widespread public interest,’ and ‘the statement . . . in some manner itself contribute[s] to the public debate.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1246.) The issue of Petersen’s credibility in Petersen I or Ramirez was not even remotely an issue of public interest. Nor did Dagrella’s alleged statements contribute in some manner to a legitimate public debate on the issue. (Cf. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 [allegedly defamatory letter to townhouse owners’ association arguably involved nuisance and safety concerns, both matters of public interest].)
(c) Conclusion
Because defendants did not meet their threshold burden of showing that Dagrella’s statements fell within the ambit of section 425.16, subdivision (e), we conclude that defendants’ motion was erroneously granted as to all of Petersen’s eight tort claims. “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 v. Sletten, supra, 29 Cal.4th at p. 89.) We therefore do not reach the second prong of the two-step inquiry, that is, whether Petersen established a probability of prevailing on the merits of his claims.
We reject Petersen’s claim that Dagrella’s alleged statements to the McCarns were “unethical and illegal” as a matter of law and are therefore not constitutionally protected by section 425.16. (Flatley, supra, 39 Cal.4th at pp. 325-333.)
IV. ATTORNEY FEES
A. Petersen’s Appeal from the Judgment Subsumes the Award of Fees and Costs
After the judgment was entered dismissing Petersen’s complaint, the trial court awarded defendants $40,000 in reasonable attorney fees. (§ 425.16, subd. (c) [prevailing defendant on anti-SLAPP motion entitled to recover his or her attorney fees and costs].) Petersen challenges the fees award on several grounds. Defendants argue that this court has no jurisdiction to disturb the fees award, because the order awarding the fees was a postjudgment order that was appealable separately from the judgment, and Petersen only appealed from the judgment, not the order awarding fees. Defendants are mistaken.
1. Relevant Background
On March 28, 2006, the trial court issued an order granting defendants’ anti-SLAPP motion regarding each of Petersen’s eight causes of action. On the same date, the court entered judgment in favor of defendants, dismissing Petersen’s complaint in its entirety. The judgment awarded defendants “costs pursuant to Code of Civil Procedure [section] 1033” “upon proof.” It also awarded defendants reasonable attorney fees, “in an amount to be determined by the Court upon defendant’s post-judgment motion.” On March 30, defendant’s filed a motion to fix the amount of attorney fees. On April 5, they filed a cost bill for $996.
On April 7, Petersen filed a motion to tax costs. On June 7, following the parties’ briefing and argument on the amount of defendants’ reasonable attorney fees, the court issued an order awarding defendants $40,000 in attorney fees. Petersen’s motion to tax costs was denied. On June 5, Petersen filed a notice of appeal from the judgment.
2. Applicable Law
An order awarding fees, if made after judgment, is a separately appealable order. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; see § 904.1, subd. (a)(2).) “[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 3:119.1, p. 3-45, italics omitted.) “This rule means that if appellant wishes to challenge an appealable postjudgment order that is rendered after appellant files a notice of appeal from the judgment, appellant must file a separate notice of appeal from the postjudgment order.” (Id. at ¶ 3:119.2, p. 3-46, italics omitted.)
But the rule requiring a separate appeal or a separately specified appeal from a postjudgment cost or fee award does not apply where, as here, the judgment includes an awards of costs and fees, and the amount of the costs and fees are later determined. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 996-998.) In these cases, the notice of appeal from the judgment subsumes the later order setting the amount of the costs and fees. (Ibid.) “[R]equiring a separate appeal from such an order when the judgment expressly makes an award of costs and/or fees serves no apparent purpose. The notice of appeal itself challenges the appropriateness of awarding fees and costs to respondents. Thus, appellate jurisdiction exists and respondents are on notice that appellants are seeking review of the award.” (Id. at p. 997.)
3. Conclusion
Because the judgment appealed from included an award of costs “upon proof” and reasonable attorney fees “in an amount to be determined by the Court upon defendant’s post-judgment motion,” Petersen was not required to separately appeal from the June 7 order awarding the exact amount of the fees and denying his motion to tax costs. Nor was he required to specify in his notice of appeal that he was appealing not only from the judgment, but also from the award of costs and fees included in the judgment. The notice of appeal from the judgment put defendants on notice that Petersen was appealing from the entire judgment—including its award of costs and fees.
4. Defendants Are Not Entitled to Recover Their Costs or Fees
Section 426.16, subdivision (c) provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Because defendants have not prevailed on their anti-SLAPP motion, defendants are not entitled to recover their costs and fees incurred in bringing the motion. (See Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 336-337 [defendants entitled to recover costs and fees associated with only one of four causes of action the appellate court determined should have been ordered stricken under anti-SLAPP statute].)
Petersen has requested that this court take judicial notice of several documents filed in connection with defendants’ motion to determine the amount of its attorney fees that were “inadvertently left out” of Petersen’s record designation. Exhibits A through C to the request consist of documents filed in connection with defendants’ motion to determine the amount of its fees. Because we are reversing the judgment in its entirety, including its award of fees and costs to defendants, it is unnecessary for us to take judicial notice of these documents. Exhibits D through G consist of documents not filed in the trial court and are not proper subjects of judicial notice. (See Evid. Code, §§ 451, 452, 459.)
5. Plaintiff is Not Entitled to Recover His Costs or Fees
Section 425.16 subdivision (c) further provides: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” Petersen asks this court to find that defendants’ anti-SLAPP motion was frivolous and intended solely for delay, and to remand the matter to the trial court with directions to award Petersen his reasonable attorney fees and costs. We decline to do so.
The trial court, not the Court of Appeal, is authorized to determine whether an award of attorney fees is warranted under sections 425.16 and 128.5. (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 288.) Petersen must therefore make his motion in the trial court. The trial court is also authorized to award Petersen his reasonable fees incurred at the appellate court level. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1368 [attorney fees incurred at trial and appellate court levels are recoverable under sections 425.16, subdivision (c), and 128.5], disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) In any event, as the prevailing party on this appeal, Petersen is entitled to recover his costs incurred on appeal. (Cal. Rules of Court, rule 8.764.)
V. DISPOSITION
The judgment of dismissal and the order granting defendants’ anti-SLAPP motion are reversed in their entirety, and the matter is remanded for further proceedings consistent with the views expressed in this opinion. Petersen is entitled to recover his costs on appeal.
We concur: Ramirez P.J. McKinster J.
First, we cannot conclude as a matter of law that Dagrella violated rule 2-100 of the Rules of Professional Conduct in initiating the conversation with the McCarns. It is undisputed that the McCarns were not parties to Petersen I and never became parties to Ramirez. In addition, Attorney Greenblatt’s letter to Dagrella listing 74 persons who had either retained the Greenblatt & Associates firm to represent them, or who had contacted the firm, did not identify Warren or Rhonda McCarns as clients of the firm. Nor can we conclude as a matter of law that Dagrella engaged in any “deceit or collusion” within the meaning of Business and Professions Code section 6128, as Petersen argues he did based on the discrepancies between Dagrella’s and the McCarns’ declarations.