Opinion
D074803
01-17-2020
NICOLE VALDEZ, Plaintiff and Respondent, v. MISSION VALLEY HEIGHTS SURGERY CENTER, L.P., Defendant and Appellant.
Higgs Fletcher & Mack, John Morris, Jason C. Ross, Kyle W. Nageotte, and Rachel E. Moffitt for Defendant and Appellant. Derek T. Anderson for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00018772-CU-OE-CTL) APPEAL from an order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Higgs Fletcher & Mack, John Morris, Jason C. Ross, Kyle W. Nageotte, and Rachel E. Moffitt for Defendant and Appellant. Derek T. Anderson for Plaintiff and Respondent.
Defendant Mission Valley Heights Surgery Center, L.P. (Surgery Center) appeals an order granting in part and denying in part its special motion to strike under Code of Civil Procedure section 425.16 (commonly known as an "anti-SLAPP" motion). The Surgery Center was sued by its former employee, plaintiff Nicole Valdez, after it terminated Valdez and reported her to the California Board of Registered Nursing. In its anti-SLAPP motion, the Surgery Center argued that Valdez's claims all arose from its protected activity, including its complaint to the nursing board and earlier emergency calls to police. The trial court agreed that three claims arose from protected activity, at least in part: unlawful prevention of employment by misrepresentation or "blacklisting" (Lab. Code, § 1050), defamation, and intentional infliction of emotional distress. As to the first two claims, the trial court found that Valdez could not establish a prima facie case and struck them. As to the third, for intentional infliction of emotional distress, the trial court struck allegations of protected activity related to the Surgery Center's complaint to the nursing board but otherwise allowed the claim to proceed. The trial court found that Valdez's remaining claims, for wrongful discharge, retaliation (Gov. Code, § 12940, subd. (h)), and civil rights violations (Civ. Code, § 52.1), did not arise from protected activity and therefore were not subject to a special motion to strike.
The Surgery Center states that its true name is San Diego CA Multi Specialty ASC, LLC. Subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
On appeal, the Surgery Center contends that the trial court should have granted its motion in full. As to Valdez's wrongful discharge, retaliation, and civil rights claims, the Surgery Center argues that the conduct underlying those claims (i.e., termination of Valdez's employment) was in furtherance of its right to free speech and petition, specifically its calls to police and complaint to the nursing board. As to the intentional infliction of emotional distress claim, the Surgery Center argues that Valdez cannot establish a prima facie case because she cannot show extreme and outrageous conduct or substantial emotional distress. As we discuss below, the Surgery Center misstates the substance of the court's order in making the latter argument.
On the merits, we affirm the order. We conclude Valdez's termination was not protected activity under the anti-SLAPP statute. It did not assist or advance the Surgery Center's exercise of its right to free speech or petition. The trial court properly denied the motion as to Valdez's causes of action for wrongful discharge, retaliation, and civil rights claims on this basis. We further conclude the Surgery Center has not shown that Valdez's intentional infliction of emotional distress claim is based on any protected activity beyond that already struck by the trial court. We therefore do not consider whether Valdez can establish a probability of prevailing on that claim.
FACTUAL AND PROCEDURAL BACKGROUND
Valdez worked as a nurse at the Surgery Center. After the Surgery Center terminated her employment, Valdez filed this lawsuit. In her complaint, she made the following allegations: Valdez is a religious Christian and discussed her faith with other employees at the Surgery Center. In late May 2017, Valdez told her supervisor that her grandmother was very sick. Valdez explained that she had prayed for her grandmother and had a religious experience during which Valdez had spoken in tongues. The following week, Valdez told three coworkers that she had another religious experience at a church. While standing outside, she had a strong feeling that something bad was going to happen there. A coworker reported this conversation to Valdez's supervisor, who "made a report . . . that [Valdez] had made statements about a potential shooting and might be mentally unstable." The supervisor summoned Valdez to a coworker's office, where she was met by two police officers and a social worker in a bulletproof vest. They asked if Valdez would voluntarily submit to a psychiatric evaluation, and she agreed. They escorted her out of the building, and Valdez felt humiliated. Medical personnel at a local hospital examined Valdez. They found no drug or alcohol use, no auditory or visual hallucinations, and no metabolic abnormalities. Valdez was discharged and went home.
The complaint further alleged that Valdez went to work the next morning and confronted her supervisor. Valdez told her supervisor that her statements about Valdez's religious experiences, as well as about the appearance, marital status, and political beliefs of other employees, created a hostile work environment and negatively impacted patient safety. Valdez said she would report her supervisor because the supervisor's conduct was illegal. The supervisor then "lunged at [Valdez] and screamed that she was going to call 911." Valdez left the Surgery Center. After she left, her supervisor falsely told Valdez's coworkers that she was mentally unstable and had made additional threats of violence. Valdez later emailed the Surgery Center, with a copy to her supervisor, summarizing the events of the past few days and documenting her complaints about the hostile work environment. Shortly afterward, Valdez's supervisor contacted her by phone and told her she had been fired.
Additionally, the complaint alleged that after Valdez's termination, the Surgery Center contacted the nursing board and prospective employers and made knowingly false representations that Valdez was mentally unstable and could pose a threat to herself and others. Similarly, Valdez's supervisor told her former coworkers that Valdez abused drugs, was mentally unstable, and posed a threat to herself.
Based on these allegations, Valdez asserted six causes of action: wrongful discharge, retaliation, civil rights violations, blacklisting, defamation, and intentional infliction of emotional distress. Her causes of action for wrongful discharge, retaliation, civil rights violations, and intentional infliction of emotional distress are primarily relevant here. The cause of action for wrongful discharge alleged that Valdez was placed on administrative leave and subsequently fired for complaining about the hostile work environment at the Surgery Center and the assault perpetrated by her supervisor. The cause of action for retaliation alleged that the Surgery Center retaliated against Valdez after she complained about harassment and discrimination based on religion, appearance, marital status, and political beliefs. The cause of action for civil rights violations alleged that Valdez's supervisor assaulted her and the Surgery Center took "adverse action" against her because of her complaints. And the cause of action for intentional infliction of emotional distress alleged that the Surgery Center's conduct was outrageous, outside the normal scope of the employment relationship, and intended to inflict humiliation, mental anguish, and severe emotional distress.
The Surgery Center filed an anti-SLAPP motion under section 425.16. As relevant here, the Surgery Center contended that Valdez's intentional infliction of emotional distress cause of action arose from the Surgery Center's protected activity in reporting Valdez's conduct to police and the nursing board. The wrongful discharge and retaliation causes of action arose from conduct (i.e., Valdez's termination) in furtherance of such protected activity. The cause of action for civil rights violations was based on her supervisor's threat to contact police and the alleged assault related to it. The Surgery Center also contended that Valdez could not establish a probability of prevailing on these claims because the reports to police and the nursing board were privileged and because any statements to prospective employers did not occur, were not false, or were protected by the common interest privilege. Valdez likewise could not show that her termination was unlawful or that the Surgery Center had threatened or committed any act of violence to prevent her from exercising her civil rights. In support of its motion, the Surgery Center submitted declarations from Valdez's supervisor and several coworkers. They claimed, among other things, that Valdez told them that there would be a mass shooting at a nearby church and many people would die.
Valdez opposed the motion. She argued that her causes of action were not based on protected activity. Her wrongful discharge and retaliation claims were based on her termination, and her claim of civil rights violations was based on the termination and her supervisor's alleged assault. Her intentional infliction of emotional distress claim was "based primarily on [Valdez's] termination and the events leading up to it, with a smaller portion of the claim being based upon conduct after [Valdez's] termination, including lies and gossip to co-workers and prospective employers, as well as [her supervisor's] complaint to the nursing board." (Fn. omitted.) Valdez submitted a declaration in support of her opposition, in which she denied telling her coworkers there would be a shooting (among other things).
In a tentative ruling, the trial court indicated it would deny the motion as to Valdez's claims for wrongful discharge and retaliation because the gravamen of those claims was termination in retaliation for complaining about her supervisor's hostile conduct. Similarly, it would deny the motion as to Valdez's claim of civil rights violations because its gravamen was retaliatory termination and assault. It tentatively found that Valdez's claim for intentional infliction of emotional distress was based in part on protected conduct, but that Valdez had shown a probability of prevailing based on unprotected conduct. The court noted that it had the power to strike portions of a pleaded cause of action that were based on protected activity, but the Surgery Center had not identified any such portions in its motion. As to Valdez's remaining claims for defamation and blacklisting, the court indicated that they were based on protected activity, did not have at least minimal merit, and should be struck.
At the hearing, the Surgery Center identified five paragraphs of the complaint that it believed contained allegations of protected conduct that should be struck. These paragraphs alleged, among other things, that Valdez's supervisor had made false statements about Valdez to her coworkers, prospective employers, and the nursing board.
Following the hearing, the trial court confirmed its tentative ruling but struck the allegations from the complaint referencing the Surgery Center's report to the nursing board. The court also awarded the Surgery Center approximately $6,000 in attorney fees. The Surgery Center appeals.
DISCUSSION
I
Anti-SLAPP Principles
"The Legislature enacted section 425.16 in response to 'a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' [Citation.] These lawsuits prompted the Legislature to declare that 'it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.' [Citation.] To limit such risks, the anti-SLAPP legislation provides a special motion to strike 'intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.' [Citation.] In 1997, the Legislature amended the statute to provide that, directed to this end, the statute 'shall be construed broadly.' " (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.)
The statute provides, "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) Section 425.16, subdivision (e) identifies four categories of activity protected by the anti-SLAPP statute. It states, "As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
"A court evaluates an anti-SLAPP motion in two steps. 'Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." ' [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).)
Under the first step, courts examine the plaintiff's allegations to determine whether the claims arise from protected activity. "A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, 'the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.' [Citations.] '[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.' [Citations.] Instead, the focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.' [Citation.] 'The only means specified in section 425.16 by which a moving defendant can satisfy the ["arising from"] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .' [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063 (Park).)
If a pleaded cause of action contains allegations of protected and unprotected activity, courts must evaluate whether and to what extent a plaintiff has alleged a cause of action based on protected activity. At the outset, a court must identify causes of action or claims for relief that rely on protected activity, regardless of a plaintiff's form of pleading. "The scope of the term 'cause of action' in section 425.16(b)(1) is evident from its statutory context. When the Legislature declared that a 'cause of action' arising from activity furthering the rights of petition or free speech may be stricken unless the plaintiff establishes a probability of prevailing, it had in mind allegations of protected activity that are asserted as grounds for relief The targeted claim must amount to a 'cause of action' in the sense that it is alleged to justify a remedy. By referring to a 'cause of action against a person arising from any act of that person in furtherance of' the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. [Citation.] Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity. Unless the plaintiff can do so, the claim and its corresponding allegations must be stricken. Neither the form of the complaint nor the primary right at stake is determinative." (Baral v. Schnitt (2016) 1 Cal.5th 376, 395 (Baral).)
Because there appears to have been some confusion regarding the court's proper role in evaluating such mixed pleadings, we describe the correct standard in detail.
"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated." (Baral, supra, 1 Cal.5th at p. 396.)
A claim for relief based on unprotected activity, even if pleaded together with a claim based on protected activity, falls outside the anti-SLAPP statute and is simply ignored. (Baral, supra, 1 Cal.5th at p. 396; Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772.) "[W]hen a cause of action is supported by allegations of both protected and unprotected activity, the anti-SLAPP statute applies to the former but does not reach the latter." (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1104 (Symmonds).) Allegations of unprotected activity cannot be used to save a claim based on protected activity, and they cannot be struck by an anti-SLAPP motion. (Cho v. Chang (2013) 219 Cal.App.4th 521, 527; see Wilson, supra, 7 Cal.5th at p. 898 [discussed in footnote 3, post].) The terms in the statute "express the Legislature's desire to require plaintiffs to show a probability of prevailing on 'the claim' arising from protected activity, not another claim that is based on activity that is beyond the scope of the anti-SLAPP statute but that happens to be included in the same count." (Baral, at p. 393.)
"We review de novo the grant or denial of an anti-SLAPP motion. [Citation.] We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. [Citations.] In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. [Citations.] We do not, however, weigh the evidence, but accept the plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park, supra, 2 Cal.5th at p. 1067.)
II
The Termination-Related Claims
The Surgery Center first contends the trial court erred by finding that Valdez's claims for wrongful discharge, retaliation, and civil rights violations did not arise from protected activity. The Surgery Center describes these claims as the "termination-related claims," and we adopt this description as well. As noted, "To determine whether a claim arises from protected activity, courts must 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of ' "act[s]" ' protected by the anti-SLAPP statute." (Wilson, supra, 7 Cal.5th at p. 884; accord, Park, supra, 2 Cal.5th at p. 1060.)
The Surgery Center's primary argument is that Valdez's termination, which forms the basis of her termination-related claims, was an act in furtherance of the Surgery Center's constitutional rights of petition and free speech, embodied by its complaints to the police and nursing board. (See § 425.16, subd. (e)(4).) " 'An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.' " (Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1521 (Hunter); accord, Doe v. State of California (2017) 8 Cal.App.5th 832, 841 [" 'Furtherance means helping to advance, assisting.' "].)
In Wilson, supra, 7 Cal.5th 871, our Supreme Court examined whether and under what circumstances an employee's termination could be protected activity under the anti-SLAPP statute. The plaintiff, a writer and producer at the Cable News Network (CNN), sued CNN for discrimination, retaliation, and other claims after CNN terminated him for alleged plagiarism. (Id. at pp. 881-882.) CNN filed an anti-SLAPP motion, in which it argued that its employment decisions were in furtherance of its right to free speech. (Id. at p. 882.)
The Supreme Court agreed, in part. It articulated the dispositive issue as follows: "The question we must consider is whether, and when, a news organization's selection of its employees bears a sufficiently substantial relationship to the organization's ability to speak on matters of public concern to qualify as conduct in furtherance of constitutional speech rights." (Wilson, supra, 7 Cal.5th at p. 894.) It noted that, "as a general rule, a legal challenge to a particular staffing decision will have no substantial effect on the news organization's ability to speak on public issues, which is the anti-SLAPP statute's concern." (Id. at p. 896.) But, because CNN showed that it terminated the plaintiff for plagiarism, its decision did implicate its ability to speak on public issues. "CNN presented evidence tending to show that its ability to participate meaningfully in public discourse on these subjects depends on its integrity and credibility. Plagiarism is universally recognized as a serious breach of journalistic ethics. Disciplining an employee for violating such ethical standards furthers a news organization's exercise of editorial control to ensure the organization's reputation, and the credibility of what it chooses to publish or broadcast, is preserved. These objectives lie 'at the core' of the press function. [Citations.] CNN has made out a prima facie case that its staffing decision was based on such considerations, and that such decisions protect the ability of a news organization to contribute credibly to the discussion of public matters. The staffing decision thus qualifies as 'conduct in furtherance' of CNN's 'speech in connection with' public matter." (Id. at p. 898.)
The Supreme Court distinguished other pleaded conduct, which did not constitute protected activity and which would survive even if the allegations of protected activity were stricken: "The lone act CNN justifies as motivated by the need to enforce editorial standards forbidding plagiarism is its termination of Wilson. . . . To the extent Wilson's causes of action include claims of illegal discrimination and retaliation based on other acts—passing him over for promotions, menial assignments, and so on—these causes of action will survive, even if the termination-specific claims are stricken." (Wilson, supra, 7 Cal.5th at p. 898.)
Other courts have similarly held that employment decisions by news and entertainment organizations may be conduct in furtherance of the right to free speech. (See, e.g., Symmonds, supra, 31 Cal.App.5th at p. 1106 ["A singer's selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech."]; Hunter, supra, 221 Cal.App.4th at p. 1521 ["CBS's selections of its KCBS and KCAL weather anchors, which were essentially casting decisions regarding who was to report the news on a local television newscast, 'helped advance or assist' both forms of First Amendment expression."]; Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 ["Here, defendants' acts helped to advance or assist in the creation, casting, and broadcasting of an episode of a popular television show."].)
Wilson cautioned, however, that employment decisions that implicate an employer's right to petition or free speech will be rare. "We see no realistic possibility that anti-SLAPP motions will become a routine feature of the litigation of discrimination or retaliation claims. The anti-SLAPP statute does not apply simply because an employer protests that its personnel decisions followed, or were communicated through, speech or petitioning activity. A claim may be struck under the anti-SLAPP statute 'only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.' [Citation.] Put differently, to carry its burden at the first step, the defendant in a discrimination suit must show that the complained-of adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights. Cases that fit that description are the exception, not the rule." (Wilson, supra, 7 Cal.5th at p. 890.)
The Surgery Center has not shown that the act of terminating Valdez itself was conduct in furtherance of its right to free speech or petition. The termination itself had little effect on the Surgery Center's ability to exercise its right to free speech or petition. The single report to police alleged in Valdez's complaint occurred before Valdez's termination. Her termination therefore did not have any effect on the Surgery Center's ability to contact police. The termination could not further a right that had already been exercised. The Surgery Center provided evidence of a second report in its anti-SLAPP motion. But it too occurred before Valdez's termination, and therefore the termination cannot be shown to further the Surgery Center's right to speech or petition for the same reasons. The Surgery Center's report to the nursing board occurred after Valdez's termination. But it provides no basis to conclude that her termination was in furtherance of the Surgery Center's right to speech or petition because, among other reasons, the Surgery Center has not shown that its ability to make such a report was enhanced or otherwise affected by Valdez's termination.
In sum, there was no sufficiently substantial relationship between Valdez's termination and the Surgery Center's right to speech or petition. Unlike in Wilson, where CNN showed that the plaintiff was terminated in order for CNN to continue to credibly report the news, the Surgery Center has not established Valdez was terminated in order for the Surgery Center to make reports to the nursing board or police.
The Surgery Center states that its act of terminating Valdez was a "natural and necessary protective measure," just like the reports to police and the nursing board. But the fact that the different acts were undertaken with the same motivation is insufficient to create a substantial relationship between the termination and the Surgery Center's exercise of free speech or petitioning activity. Prevention of workplace violence is an extremely important public policy goal. But conduct in furtherance of that goal does not, without more, constitute activity protected by the anti-SLAPP statute.
The Surgery Center asserts, "If this conduct is not protected, employees like [Valdez's supervisor] will be even less likely to call the police; and employers like the Surgery Center will be even less likely to terminate employees who pose a grave and dangerous threat to not only their workers but also their patients." We fail to see how a lawsuit challenging Valdez's termination would deter employees from calling police. The two types of conduct are unrelated for reasons we have already discussed. And, even assuming that such a lawsuit may make employers marginally less likely to terminate allegedly dangerous employees, such concerns do not implicate the anti-SLAPP statute. It is for the Legislature to identify the types of lawsuits that may be subject to a special motion to strike. The current statute does not cover conduct to prevent workplace violence, in the absence of some sufficiently substantial relationship to the right to free speech or petition. We may not rewrite the statute to expand its coverage beyond conduct in furtherance of the right to free speech and petition, however important the other conduct may be.
The Surgery Center points out that an act may qualify as one in furtherance of protected speech or petitioning if it "took the action for speech-related reasons." (See Wilson, supra, 7 Cal.5th at p. 889.) But, as the Surgery Center admits, it terminated Valdez because it believed she posed a threat to the physical safety of its employees and patients. This is a very good reason, if true, but it is not a speech-related reason.
The Surgery Center argues that the "inextricable proximity" between the reports and Valdez's termination shows that its conduct "easily" meets the standard for protected activity. But mere temporal proximity—or the fact that the events at issue occurred over a relatively short period of time—is insufficient. (See Wilson, supra, 7 Cal.5th at p. 890 ["The anti-SLAPP statute does not apply simply because an employer protests that its personnel decisions followed, or were communicated through, speech or petitioning activity."].) And the Surgery Center has not shown how the reports are "inextricable" from Valdez's termination. The reports occurred separately from her termination, and did not rely on it, as we have discussed.
The Surgery Center also appears to assert that the termination-related claims arise directly from its complaints to police and the nursing board. At most, however, the Surgery Center claims that only part of Valdez's termination-related claims rely on these allegations. The Surgery Center's assertion that these claims should be subjected in their entirety to the anti-SLAPP second stage is therefore unpersuasive. (See Baral, supra, 1 Cal.5th at p. 396; Wilson, supra, 7 Cal.5th at p. 898.) In any event, the Surgery Center has not established that any of the termination-related causes of action rely on the complaints to police or the nursing board as a basis of liability, even in part. "[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Park, supra, 2 Cal.5th at p. 1063; accord, Wilson, at p. 884.) The Surgery Center points out that Valdez incorporated all of her general allegations into each cause of action. Incorporation alone is insufficient. The Surgery Center must identify the elements of the termination-related claims and show that Valdez relies on the reports themselves to satisfy one of those elements. It has not done so. And, as we discuss further below, the trial court already struck the allegations referencing the nursing board, a fact which the Surgery Center does not disclose. The Surgery Center has not shown that Valdez's termination-related claims arise from conduct in furtherance of its right to free speech or petition.
On reply, for the first time, the Surgery Center posits that Valdez's claim for retaliation relies on the allegation that "she was fired for complaining about the Surgery Center's decision to (engage in its protected right to) report her misconduct." But, even accepting this framing, the injury-producing conduct alleged by Valdez is still her termination. It is not the police report. Thus, Valdez's claim does not arise from conduct in furtherance of the Surgery Center's right to petition or free speech. (See Wilson, supra, 7 Cal.5th at p. 884; Park, supra, 2 Cal.5th at p. 1063.)
III
Intentional Infliction of Emotional Distress
The Surgery Center next contends the trial court erred by not striking Valdez's claim for intentional infliction of emotional distress. The court found that this claim "encompass[ed] all of the alleged misconduct, including reports to law enforcement and the Nursing Board. As a result, [this claim encompasses] protected conduct such that a 'second prong' analysis is necessary[.]" It wrote, in its tentative ruling, that "[t]he fifth cause of action for IIED is premised on all of the 'conduct' alleged within the preliminary allegations. This necessarily includes the alleged termination in retaliation for complaining about [her supervisor's] hostile conduct [i.e., unprotected activity]. Plaintiff's declaration provides evidence that this retaliatory conduct did take place. Such conduct could be deemed 'outrageous,' such that it serves as a predicate basis for an IIED claim. [¶] Defendant cites Baral v. Schnitt (2016) 1 Cal.5th 376 for the proposition that this Court should strike portions of individual causes of action even if the entire cause of action is not stricken. However, the notice of Motion does not specify the allegations to be stricken." At the subsequent hearing, the Surgery Center identified five paragraphs of the complaint that contained allegations it believed should be stricken. The court's final order adopted its tentative but agreed that the references to the nursing board complaints should be stricken.
Before we address the merits, we note that the Surgery Center has failed to accurately describe the trial court's order. In its opening brief, the Surgery Center asserts that the court erred "because in no event could the Surgery Center's conduct be considered so egregious as to exceed all bounds of decency; and because, at the very least, the trial court erred in failing to strike the portions of the IIED claim indisputably based on the protected police and Nursing Board reports." Its argument emphasizes—using italics, as we quote below—the purported error in allowing specifically the nursing board allegations to remain. The Surgery Center's opening brief never discloses that the trial court actually struck the complaint's references to the nursing board, in its procedural history or otherwise. Instead, the Surgery Center erroneously represents the substance of the court's ruling as "refusing" to strike such allegations.
In its reply brief, after Valdez points out in her respondent's brief that the court had in fact struck references to the nursing board, the Surgery Center does not acknowledge its error. After admitting in passing that the trial court struck certain allegations, the Surgery Center returns to its prior, inaccurate framing of the trial court's order. It again argues that the court erred "in failing to strike at least those portions of Valdez's IIED claim that are admittedly predicated on the Surgery Center's protected reports," including specifically the nursing board allegations, again without disclosing that the trial court had already struck them. Although the Surgery Center's initial mischaracterization of the trial court's order can be attributed to an oversight, we are concerned that counsel has continued to resist full disclosure in the Surgery Center's reply brief.
Turning to the substance of the Surgery Center's contention that the trial court should have struck Valdez's cause of action for intentional infliction of emotional distress, we proceed with the same two-step analysis outlined above. "At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them." (Baral, supra, 1 Cal.5th at p. 396; accord Wilson, supra, 7 Cal.5th at p. 884; Park, supra, 2 Cal.5th at p. 1060.) The Surgery Center's briefing on this issue is somewhat unclear. Its primary argument appears to be, since the trial court found that this pleaded cause of action relies in part on allegations of protected activity, the entire pleaded cause of action is subject to a second-step analysis. This argument does not reflect the correct legal standard. "When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage." (Baral, at p. 396.) To the extent a plaintiff's causes of action include allegations based on unprotected activity, these allegations will survive, even if the allegations based on protected activity are subjected to the second-step analysis and stricken. (Wilson, at p. 898; Baral, at p. 393; Symmonds, supra, 31 Cal.App.5th at p. 1104.)
In response to Valdez's contention that her intentional infliction of emotional distress cause of action does not arise from protected activity, the Surgery Center responds only that the cause of action incorporates the entirety of the complaint, which "includes the Surgery Center's protected reports." Besides "protected reports," which we address below, the Surgery Center does not identify or explain how any of the remaining allegations in the complaint constitute protected activity. To the extent the Surgery Center attacks Valdez's allegations related to her termination, it does not constitute protected activity for the reasons already discussed. The Surgery Center's contention that the trial court should have struck the entire pleaded cause of action for intentional infliction of emotional distress is meritless.
We therefore turn to the Surgery Center's argument that the trial court should have struck specific allegations supporting Valdez's cause of action for intentional infliction of emotional distress, i.e., the allegations of "protected reports." As we discuss, the Surgery Center's argument is hampered by its failure to properly recount the substance of the trial court's order, and it is ultimately unpersuasive.
In its opening brief, the Surgery Center claims that the trial court erred by failing "to strike those portions of [Valdez's] IIED claim that are admittedly based on the Surgery Center's protected reports to the police and Nursing Board." It focuses on the nursing board allegations, which, as discussed above, have already been struck by the trial court. The Surgery Center notes that Valdez admitted in the trial court that her claim is based in part on conduct after her termination, " 'including lies and gossip to co-workers and prospective employers . . . , as well as [her supervisor's] complaint to the Nursing Board.' " Notwithstanding the Surgery Center's italicized reference to the nursing board, it neither acknowledges the trial court's order striking those allegations nor identifies any nursing board allegations that remain. The Surgery Center implies that other allegations in the complaint comprise protected activity, in a bracketed comment, where the Surgery Center inserted "[i.e., the police report]" after " 'lies and gossip to co-workers and prospective employers.' " This does not appear to be an accurate characterization of Valdez's statement, which does not mention the police, and which describes in relevant part " 'conduct after [her] termination,' " i.e., after the reports to police. The Surgery Center never specifically identifies the challenged allegations in the complaint.
The Surgery Center's full statement, with original brackets and italics, reads as follows: "And Valdez herself conceded as much in her opposition to the Surgery Center's anti-SLAPP motion when she stated: '[Valdez's] fifth claim for IIED is based primarily on [her] termination and the events leading up to it, with a smaller portion of the claim being based upon conduct after [her] termination, including lies and gossip to co-workers and prospective employers [i.e., the police report], as well as [Ms.] Minero's complaint to the Nursing Board.' " Minero was Valdez's supervisor.
On reply, after acknowledging that the trial court struck the nursing board allegations, the Surgery Center complains that the trial court "actually refused to strike those portions of her IIED claim where she argued she was 'defamed' by the protected reports." The Surgery Center cites only the trial court's tentative ruling, not its subsequent order striking the allegations, and does not address the trial court's reasoning for refusing to strike specific allegations (which was, as noted, the Surgery Center's failure to identify any specific allegations to strike). The Surgery Center does not provide a citation to Valdez's complaint for the allegation that she was " 'defamed' by the protected reports," so it is unclear which allegation the Surgery Center is referencing in its briefing. Later, in the Surgery Center's discussion of allegations to be struck, it largely repeats the argument from its opening brief. This discussion includes the Surgery Center's attacks on the nursing board allegations (without italics this time), notwithstanding its earlier acknowledgment that they had been stricken already.
After reviewing the Surgery Center's briefing in light of the record, we are left with no cogent argument why any specific allegations supporting Valdez's cause of action for intentional infliction of emotional distress constitute protected activity that form the basis for her claim for relief. Its clearest argument concerns the nursing board report, but the trial court already struck the nursing board allegations from Valdez's complaint. To the extent the Surgery Center challenges the reference in Valdez's complaint to a police report, the Surgery Center has not shown that the report itself constitutes injury-producing conduct on which Valdez's cause of action for intentional infliction of emotional distress is based. (See Wilson, supra, 7 Cal.5th at p. 884; Park, supra, 2 Cal.5th at p. 1063.) Moreover, at the hearing on the Surgery Center's motion in the trial court, the Surgery Center identified five paragraphs in Valdez's complaint as alleging protected activity. The paragraph referencing the police report was not among them. The Surgery Center has therefore forfeited its contention that this paragraph should have been stricken. (See Hunter, supra, 221 Cal.App.4th at p. 1526; Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)
Because the Surgery Center has not shown that Valdez alleged a claim for relief based on protected activity (that was not already struck by the trial court), its contention that the court erred by not striking some or all of Valdez's cause of action for intentional infliction of emotional distress does not advance beyond step one of the anti-SLAPP analysis. We therefore need not consider step two, i.e., whether Valdez can make out a prima facie case to support any claim for relief based on protected activity.
DISPOSITION
The order is affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.