Opinion
A151689
07-23-2018
BLAKE WENTWORTH, Plaintiff and Appellant, v. ERIN BENNETT et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG16831466)
Defendants Erin Bennett, Kathleen Gutierrez, Michael Flynn, Flynn Law Office (FLO), and Oakland Law Collaborative (OLC) appeal the partial denial of a motion brought under Code of Civil Procedure section 425.16 (or the anti-SLAPP statute) that they filed in response to plaintiff Blake Wentworth's allegations of defamation, false light publicity, abuse of process, intentional infliction of emotional distress, and unfair business practices. Plaintiff has filed a cross-appeal, contesting the trial court's decision to strike his claim for abuse of process. Concurring with the court's ruling that four out of plaintiff's five claims have at least minimal merit, we affirm.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Background
In 2011, the University of California at Berkeley (UCB) hired plaintiff as an assistant professor in the Department of South & Southeast Asian Studies (SSEAS). He specializes in the Tamil language.
Bennett enrolled at UCB as a graduate student in the fall of 2014 to study comparative literature.
On September 11, 2014, Bennett sent an e-mail message to plaintiff, asking to meet with him to discuss Tamil literary study and how best she could go about learning written Tamil. She requested independent study with him in Tamil language. Subsequently, it appears she fell behind in her work, as documented in several e-mail messages she sent to plaintiff indicating that she was "swamped" with her other studies and activities.
On November 7, 2014, Bennett e-mailed plaintiff to say that she had "decided to drop the independent study course." She stated that she was "disappointed to have to make this decision, but [she had] too much on [her] plate right now and want[ed] to explore other paths." She wrote that she was "grateful for [plaintiff's] time and [his] academic guidance." This was the last contact or communication between Bennett and plaintiff.
Gutierrez was a graduate student in SSEAS. Plaintiff's office was near the SEASS graduate student office. According to plaintiff, Gutierrez developed a "cordial, friendly relationship" with him. She discussed personal matters with him, such as her relationships with other men and her breakup with a boyfriend. On occasion, plaintiff brought his dog, Herbert, to campus. Gutierrez regularly exclaimed "Herbert!" when he brought the dog and would pet the dog. Plaintiff never "expressed romantic interest" in her.
On February 7, 2015, a sexual harassment complaint was referred by the SSEAS Department Chair, Jeffrey Hadler, to the UCB Office for the Prevention of Harassment & Discrimination (OPHD) on behalf of Bennett.
On or about February 17, 2015, Gutierrez went for a walk with plaintiff on campus. They spent about two hours discussing personal, social, and academic topics. Plaintiff maintains that he "never made an advance or touched [her]." Gutierrez has a different version of events, which is set forth below.
On February 23, 2015, Gutierrez e-mailed plaintiff and asked him to meet her for coffee. Subsequently, they arranged to meet at a coffeehouse in the Rockridge neighborhood.
On February 27, 2015, plaintiff met with Gutierrez at the coffeehouse. According to him, the discussion was social, not academic. They were together 30 to 45 minutes. Later that day, he thanked her in an e-mail: "Thanks again for meeting with me this morning, Kat, and hearing out my voyage of self-discovery. I feel better and lighter in the world than I have in some time as a result. I am very grateful!" She replied: "Thanks for the kind message, Blake. I'm glad we got to discuss life in Herbert's good company. This is your time to do you." According to plaintiff, she never advised him that she viewed any of his words or deeds as inappropriate, unprofessional, or unwelcome. She also never advised him that their conversations made her uncomfortable or interfered with her studies or work. Allegedly, she fabricated harassment allegations against him to excuse her own actions and to aid Bennett.
Between February 2015 and October 2015, during OPHD's review of allegations made by both Bennett and Gutierrez, plaintiff continued to teach classes and work in his office. The parties did not have contact, and plaintiff sought to avoid the women.
On October 8, 2015, OPHD determined that plaintiff did not sexually harass Bennett. OPHD also determined under a preponderance of the evidence standard that plaintiff had made an unwelcome "sexual advance" toward Gutierrez, in violation of UCB sexual harassment provisions.
On March 27, 2016, plaintiff was informed that he had been suspended from teaching duties and needed to stay home "until this blows over." The next day, the San Francisco Chronicle published the first of multiple media stories concerning the allegations made by Bennett and Gutierrez. II. Publicity and Media Reports
A. The March 31 , 2016 Daily Californian Article
On March 31, 2016, a Daily Californian article entitled Faculty members condemn slow investigation of sexual harassment allegations reported that Flynn made the following remarks concerning plaintiff's conduct: "Flynn said that in February 2015, Wentworth allegedly went on a walk with Gutierrez, held her hand and told her he was attracted to her and he could lose his job as a result. Within the next day, when Gutierrez attempted to initiate a conversation with Wentworth regarding his behavior, he allegedly shifted the conversation and asked her out on a date. [¶]. . . [¶] 'He told (Bennett) that learning Tamil is like having sex, and he touched her inappropriately on multiple occasions,' Flynn said, adding that he felt '(Wentworth was) trying to test her boundaries.' " The article also quotes Flynn stating that the two women would "proceed with a lawsuit against Wentworth and the UC Board of Regents under the Fair Employment and Housing Act" "should the campus fail to take their desired actions." Flynn described the "desired actions" as "they don't want [plaintiff] on the campus anymore."
B. April 11 , 2016 Rally
On or about April 8, 2016, Flynn, FLO and OLC posted notice of a rally to be held on April 11, 2016, entitled "Take Back The Campus," which included a photo of a picketer holding a "Rape Free Campus" sign. The web page had a document entitled "Demands" in downloadable format. One of the first demands was that "[plaintiff's] employment with [UCB] must be immediately terminated."
Bennett spoke at the April 11 rally, which was covered by television and print media. She claimed that plaintiff sexually harassed her, including instances of unwanted touching. She stated she was forced to go on medical leave in November 2015 due to his alleged conduct and her purported fear that he might harass her again. She asserted that he had "completely derailed my education, my future," and claimed he needed to be banned from campus in order for her to feel safe.
C. The Guardian UK Article
On April 10, 2016, Gutierrez was quoted in an interview with The Guardian UK, referencing meeting with plaintiff in February 2015. She said, "It was so disturbing to me to know that was happening in my workplace, that he made such an assertive come-on to me . . . . I remember being very scared to think I might be alone with him." The Guardian quoted her as claiming that "the root of her stress is her fear that at any moment on campus, she could run into Blake Wentworth, a professor in her department who she says repeatedly sexually harassed her—touching her inappropriately and making offensive comments, including telling her 'I'm so attracted to you' and bragging about doing drugs off of a stripper's body."
The same article quoted Bennett as saying, "I can't be on campus . . . . I don't know what graduate school is like without harassment . . . . [¶] . . . [¶] I became increasingly uncomfortable with his behavior . . . . The power dynamic was very strong and palpable." The women's statements in this article were republished by other media.
D. Draft DFEH Charges
On or about April 10, 2016, Flynn prepared a draft Department of Fair Employment and Housing (DFEH) charge regarding Bennett, posting a copy of the document in downloadable format on the OLC website. A DFEH charge was also prepared regarding Gutierrez.
It appears this charge was subsequently withdrawn.
Bennett's DFEH charge stated that she was presently on medical leave from her academic studies "due to having been subjected to sexual harassment by [plaintiff]." Among other things, the document relates that during their four independent study meetings, plaintiff "primarily talked to [her] about his personal life, specifically about his failing marriage." He compared learning Tamil "to being 'better than sex.' " He placed his hand on her hand when she was petting his dog, attempting to hold her gaze. He also translated into English a passage from a book describing, in detail, a woman being raped by her husband. During their last meeting, he twice approached her and placed his hand on her shoulders and leaned in towards her. He also called her his " 'poor little lamb.' "
The April 10, 2016 Guardian UK reported on and quoted from Bennett's DFEH charge.
E. April 11 , 2016 Daily Californian Article
On April 11, 2016, the Daily Californian reported that Flynn had reiterated his threat to pursue DFEH charges unless UCB fired plaintiff immediately: "If the campus takes appropriate action, the DFEH may not need to get involved, he noted. 'We're giving the University the opportunity to do the right thing,' Flynn said." The newspaper posted the draft DFEH charge on its website. The San Jose Mercury News reported on the rally and the DFEH charges and the Associated Press distributed wire reports to media across the country relating the story. The New York Daily News referred to plaintiff as a "creep" in reporting on the story. II. Procedural History
On September 22, 2016, plaintiff filed the operative first amended complaint (FAC) alleging causes of action against defendants for defamation, false light publicity, abuse of process, intentional infliction of emotional distress, and unfair business practices.
On September 20, 2016, plaintiff filed a similar complaint against Nicole Hemenway, a former UCB student who had also accused him of sexual harassment.
On November 14, 2016, defendants filed a joint special motion to strike the FAC pursuant to section 425.16. In their motion, they asserted plaintiff's claims arose from protected activity. They also asserted his claims had "no reasonable probability of success," in part because they were barred by "absolute privileges."
On December 1, 2016, defendants submitted their objections to evidence filed by plaintiff in opposition to their motion.
On January 25, 2017, plaintiff filed an ex parte application for an order permitting him to file supplemental evidence.
On March 7, 2017, the trial court held a hearing on defendants' motion.
On May 25, 2017, defendants submitted a request for judicial notice of a letter dated May 24, 2017, written by then chancellor Nicholas Dirks. The letter is captioned as " PERSONAL AND CONFIDENTIAL ," and states that plaintiff was being dismissed from the university based on multiple student complaints of sexual harassment. The request for judicial notice was opposed by plaintiff. It does not appear that the court ruled on the request, and the document is not mentioned in the trial court's written findings.
On June 7, 2017, the trial court issued its written ruling on defendants' motion to strike, granting it in part and denying it in part. The court struck the FAC's cause of action for abuse of process, along with paragraphs in the FAC based on the contemplated DFEH proceeding and the alleged "sham" DFEH complaint, as well as a paragraph pertaining to the letter from Flynn to plaintiff dated April 11, 2016. As indicated above, both sides have appealed from this ruling.
DISCUSSION
I. Applicable Law and Standard of Review
The anti-SLAPP pretrial motion is derived from section 425.16, a statute enacted to prevent the chilling effect of meritless lawsuits which force an individual into litigation for exercising the right of petition or free speech. Section 425.16, subdivision (b)(1) 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." Put simply, the statute's purpose is to "[weed] out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) In that sense, the anti-SLAPP motion is similar to summary judgment, except it is a more narrowly tailored remedy, which in turn makes it procedurally more complicated. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [trial court evaluates the suit's merits using a "summary-judgment-like procedure"].)
An anti-SLAPP motion differs from summary judgment in that it involves a two-step process. In the first step, the defendant must make " ' "a threshold showing that the challenged cause of action is one 'arising from' protected activity." ' " (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321 (Barry); Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier) [the court must determine whether the defendant has met this burden].) In this context, the term "protected activity" refers to speech or petitioning activities. (Barry, at p. 321.)
If the court finds the defendant succeeds at the first step, then the burden shifts to the plaintiff to " ' "demonstrate[] a probability of prevailing on the claim." ' " (Barry, supra, 2 Cal.5th at p. 321.) At the second step, the court " ' " 'accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s] the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' " ' " (Ibid.) The plaintiff cannot rely solely on its complaint to satisfy its burden on the second step; it must provide competent admissible evidence that would be sufficient to sustain a favorable judgment. (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376.) If the cause of action satisfies both prongs of the anti-SLAPP statute, then it is subject to being stricken. (Barry, at p. 321.)
We review the trial court's denial of defendants' anti-SLAPP motion de novo, following the same two-step process outlined above. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley).) II. Whether Plaintiff's Causes of Action Arise from Protected Conduct
A. Plaintiff's Extortion Argument
Plaintiff asserts that the trial court erred in concluding that the FAC is based on protected conduct, claiming defendants' "extortionate threats" fall outside the scope of section 425.16. The cases he relies on are inapposite.
In Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1269-1270 (Overhill Farms), the appellate court concluded the trial court properly refused to strike a plaintiff's cause of action for extortion, in part because a future threat to boycott a business for allegedly false allegations of racist motivations for a mass firing would clearly cause the plaintiff further harm. The discussion does not apply to the first prong of the anti-SLAPP statute, but instead addressed the second prong in finding that the plaintiff's cause of action for extortion passed muster. "[I]t is axiomatic that cases are not authority for propositions not considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
Plaintiff also relies on Cohen v. Brown (2009) 173 Cal.App.4th 302. In that case, the defendant (an attorney) had associated the plaintiff (an attorney and physician), to represent a client in a personal injury matter. (Id. at pp. 306-307.) After a dispute arose between the two attorneys, the defendant made a written demand, threatening to file an administrative complaint with the State Bar if the plaintiff did not sign off on the client's settlement check to allow all fees to be paid to the defendant. (Id. at pp. 310-311.) The plaintiff did not comply, and the defendant went forward with a State Bar complaint. (Id. at p. 311.) The appellate court held that the complaint was not subject to the anti-SLAPP statute because the defendant's conduct constituted extortion. (Id. at pp. 317-318.)
Plaintiff does not argue on appeal that defendants threatened him with litigation. Instead, he states that they threatened UCB, his employer, with litigation under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) unless it fired him immediately. This focus on a third party contrasts the present action with the seminal case on extortionate threats, Flatley, supra, 39 Cal.4th 299.
In a slightly different context, courts have held that "the threatened disclosure of a secret affecting a third party, who is neither a relative nor a family member, does not constitute extortion." (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1299.)
In Flatley, the plaintiff, a well-known entertainer, sued an attorney for conduct arising out of his representation of a client who claimed the plaintiff had raped her in his Las Vegas hotel suite. (Id. at p. 305.) The plaintiff alleged (among other claims) a cause of action for civil extortion arising out of a demand letter the attorney had sent. (Ibid.) The attorney responded to the suit by filing an anti-SLAPP motion. (Ibid.) He argued that the demand letter "was a prelitigation settlement offer in furtherance of his constitutional right of petition" and thus subject to protection under section 425.16. (Flatley, at p. 311.) The trial court, affirmed by the Court of Appeal and the Supreme Court, held that the attorney's communications constituted criminal extortion and were therefore not protected under the anti-SLAPP law. (Ibid.) The present case is not similar.
We also conclude plaintiff has not shown that defendants' conduct constituted criminal extortion. We note "[s]everal Court of Appeal opinions have rejected attempts to apply the rule from Flatley, supra, 39 Cal.4th 299, to noncriminal conduct." (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169.) Thus, even if the rule can be applied to third parties like UCB, plaintiff does not persuade us that defendants' conduct satisfies the requirements of Flatley.
B. The Challenged Acts Are Protected Activity
1. March 31 , 2016 Daily Californian Article
The trial court found the statements attributed to Flynn in the March 31, 2016 Daily Californian article constitute protected activity under section 425.16, subdivisions (e)(3) or (e)(4), for statements made " 'in connection with an issue of public interest' " or " 'in connection with a public issue.' " We concur.
The anti-SLAPP statute does not define the terms "public issue" or "issue of public interest." However, courts have held that there must be " 'some attributes of the issue which make it one of public, rather than merely private, interest. A few guiding principles may be derived from decisional authorities. First, "public interest" does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker's conduct should be the public interest rather than a mere effort "to gather ammunition for another round of [private] controversy . . . ." [Citation.] Finally, "those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure." [Citation.] A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.' " (Baughn v. Department of Forestry & Fire Protection (2016) 246 Cal.App.4th 328, 335-336.)
Plaintiff asserts that Flynn's remarks involved private personnel matters, and that Flynn "aimed to generate leverage for his clients' personal interests, nothing more." However, as evidenced by the title of the article, the piece was focused on how UCB faculty members were disturbed by slow progress in investigating harassment claims made by students, noting that six complaints against plaintiff "were 'dismissed or shut down' " by the OPHD. From the article, it also appears that persons other than defendants had pursued complaints against plaintiff. While Flynn's statements did pertain to his clients only, the statements were made in the broader context of criticisms as to how UCB was responding to sexual harassment allegations, an issue that clearly concerns a broad segment of the population. These factors lead us to conclude that Flynn's statements were made in connection with an issue of public interest.
Plaintiff relies on Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 915-917 (Rivero). In that case, a janitorial supervisor at UCB filed an action against a union, alleging, inter alia, libel and slander, after the union published information about him in union publications and a petition. (Id. at pp. 916-917.) Our colleagues in Division Two observed that the union's statements concerned supervision of eight custodians by Rivero, "an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were Rivero and the eight custodians. Rivero's supervision of those eight individuals is hardly a matter of public interest." (Rivero, at p. 924.) The present case is distinguishable in that the challenged statements were made in a newspaper article that was addressing the broader issue of a prominent public institution's allegedly lax enforcement of sexual harassment violations. The trial court's findings are correct.
2. Posting "Draft" DFEH Charges on OLC's Website
Plaintiff asserts that "[p]osting 'draft' complaints [on the Internet] is unrelated to petition rights" under the anti-SLAPP statute. He argues that the postings were "merely 'ammunition' for Defendants to generate coercive leverage in their media campaign to fire [him] and get money . . . ." The trial court concluded that the posting of the DFEH complaints on the OLC website "were statements in connection with matters of public interest" for the same reasons as the statements made in the March 31, 2016 Daily Californian article. For the reasons stated above, we concur.
3. Statements in the Guardian UK
Plaintiff asserts The Guardian UK interview with Bennett and Gutierrez failed to address issues of public interest because it focused on private claims. He asserts the statements contained in the article were made "simply to publicize [defendants'] intent to initiate private litigation." He relies on Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1298 (Abuemeira) for the proposition that the distribution of information regarding a private dispute to the media does not transform " 'private, anonymous' " conduct into an issue of public interest.
In Abuemeira, the defendants had recorded a video of a physical altercation between neighbors. (Abuemeira, supra, 246 Cal.App.4th at p. 1294.) The video was later shown to attendees at homeowners association meetings and to a television news reporter, in which they "described the incident as a 'hate crime' against homosexuals." (Id. at p. 1295.) The plaintiffs filed a complaint for damages that included claims of defamation based on the publication of the video. (Ibid.) The trial court denied the defendants' anti-SLAPP motion filed as to the causes of action for intentional infliction of emotional distress and defamation, reasoning that the case " 'involves a dispute between private persons,' " and that " '[t]he efforts of the defendants to publicize it do not transform it into an issue of public interest.' " (Id. at p. 1296.)
The circumstances here are different. While defendants' statements in the article concerning harassment arise out of conduct that involved plaintiff and his two accusers only, again, the public nature of the issue centers on the allegedly lax response of UCB to allegations of sexual harassment made by students. Thus, the statements were made in connection with an issue of public interest and are protected by the anti-SLAPP statute.
4. Statements Made at April 11 Rally
Finally, without citing to any legal authority, plaintiff asserts that "[g]arden-variety claims involving unknown people is not a public issue," claiming defendants' statements at the rally "focused on themselves, not issues of public interest." For the reasons stated above, we are not persuaded. In sum, we conclude the FAC arises from protected activity and now move to consider whether plaintiff has demonstrated a probability of prevailing on his claims. III. Whether Plaintiff's Claims Have Minimal Merit
When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.)
A. General Principles
"If the defendant makes the required showing [that the allegations arise from protected conduct], the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral, supra, 1 Cal.5th at p. 384.) The California Supreme Court has characterized this step as a " 'summary-judgment-like procedure.' " (Ibid.) In analyzing whether the plaintiff has demonstrated a probability of prevailing on the merits, the court measures the plaintiff's showing against a standard similar to that used in deciding a motion for nonsuit, directed verdict, or summary judgment. The court determines only whether the plaintiff has made a prima facie showing of facts that would support a judgment if proved at trial. The court does not weigh the plaintiff's evidence. However, the plaintiff may not rely solely on the complaint, even if verified; instead, proof must be made upon competent admissible evidence. (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109.)
"The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral, supra, 1 Cal.5th at p. 396.) In the words of the Supreme Court, a plaintiff needs to show only a "minimum level of legal sufficiency and triability." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5.) Stated another way, a plaintiff needs to show only a case of " 'minimal merit.' " (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier, supra, 29 Cal.4th at p. 95, fn. 11.)
B. Defamation/False Light Invasion of Privacy/UCL Claims
Defamation requires a publication that is false, defamatory, unprivileged, and has a tendency to injure or cause special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus); Civ. Code, §§ 44, 45.) To establish his defamation claim, plaintiff must prove the publication contained a statement of fact (which can support a defamation action) rather than an expression of opinion (which cannot) that was false, defamatory, unprivileged, and had a tendency to injure or cause special damage. (Taus, at p. 720.)
To establish a false light invasion of privacy claim, plaintiff must meet the same requirements as in defamation. (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16; Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 149.) " 'One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.' " (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 781, p. 1078.)
Plaintiff's UCL claim is derivative of his defamation and false light claims; that is, it is based on the same assertedly false and defamatory statements, and likewise that cause of action stands or falls with those underlying claims. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 [UCL " 'borrows' violations from other laws by making them independently actionable as unfair competitive practices"].) We refer to these three causes of action collectively as the defamation-related claims.
1. Absolute Privileges of Civil Code Section 47 , Subdivisions (b) and (d)
Defendants argue that plaintiff cannot establish a probability of prevailing on his defamation-related claims because they are all barred by California's litigation privilege under Civil Code section 47, subdivision (b). They also contend he cannot establish these claims because the challenged statements are absolutely privileged as a fair and true report of an official proceeding to a public journal (Civ. Code, § 47, subd. (d)). As we will explain, we disagree.
a. Litigation Privilege
Defendants first argue that their speech is privileged under Civil Code section 47, subdivision (b) as having been made " 'in any other official proceeding authorized by law.' " They assert the privilege applies to the signing and filing of the DFEH complaints. They also assert the privilege applies to Flynn's "pre-litigation letter." As to these two issues, the trial court agreed that the privilege applies.
The litigation privilege " 'exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.' " (People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 958.) While plaintiff asserts the DFEH complaints were merely "drafts," statements made in advance of litigation are generally protected. (See Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 31-32.) This same principle applies to prelitigation demand letters, such as the April 11, 2016 letter written by Flynn.
While the DFEH complaints and the demand letter are thus privileged, defendants seek to broaden the application of the privilege to cover Flynn's threats to take further legal action, the alleged demand that UCB pay the defendants money, the organizing and publicizing of the April 11 rally, and Bennett's statements made at the rally. They claim these are all examples of "privileged acts of marshalling support for [their] efforts to get a state agency, the University, to change its policies and procedures."
We agree with the trial court's conclusion that the litigation privilege applies to Flynn's demand letter and to the draft DFEH complaints that were posted on the OLC website. However, we do not agree with defendants' broader assertions. In arguing for the broad application of the privilege, defendants rely on Smith v. Silvey (1983) 149 Cal.App.3d 400, 403-404, 406 (Smith).
In Smith, a former resident of a mobilehome park appealed from a judgment granting the park owner an injunction restraining him from initiating complaints with public agencies in relation to the mobilehome park and from contacting any of the residents of the park. (Smith, supra, 149 Cal.App.3d 402-403.) The appellate court determined a civil harassment injunction could not issue where its effect was to prevent the person enjoined from contacting government agencies, and also interfered with his exercise of his rights to free speech and to petition for redress of grievances. (Id. at pp. 406-407.)
Here, the conduct alleged in the FAC does not concern defendants' rights to complain to UCB. Nor were defendants' communications limited to persons, like the residents of the park, who had a direct interest in the subject matter. Rather, the FAC complains that defendants were essentially litigating their grievances in the press. While the scope of the litigation privilege has been extended to publications made to nonparties with a substantial interest in the proceeding, " 'the expansion does not encompass publication to the general public through the press. Such an expansion would swallow up the general rule, which our Supreme Court . . . reaffirmed, that [the litigation privilege] does not privilege 'republications to nonparticipants in the action . . . .' " (Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 94, citing to Silberg v. Anderson (1990) 50 Cal.3d 205, 219.)
This principle was affirmed in Rothman v. Jackson (1996) 49 Cal.App.4th 1134 (Rothman). In Rothman, an attorney sued a celebrity and the celebrity's attorney and investigator, following a press conference in which they asserted the attorney and his clients had made false accusations against the celebrity in order to extort money from him. (Id. at p. 1139.) The trial court sustained the defendants' demurrer as to all causes of action on the ground of the litigation privilege. (Id. at p. 1138.)
The appellate court reversed, ruling the "challenged statements were made by the defendants in a press conference, and not in any context which the litigation privilege exists to protect." (Rothman, supra, 49 Cal.App.4th at p. 1138.) The court further held, "the litigation privilege should not be extended to 'litigating in the press.' Such an extension would not serve the purposes of the privilege; indeed, it would serve no purpose but to provide immunity to those who would inflict upon our system of justice the damage which litigating in the press generally causes: poisoning of jury pools and bringing disrepute upon both the judiciary and the bar." (Id. at p. 1149.) Following the reasoning of Rothman, we conclude that defendants' statements excluded from the trial court's order are not protected by the litigation privilege.
b. Fair Reporting Privilege
"Civil Code section 47 makes privileged 'a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.' [Citation.] [The party invoking the privilege] bears the burden of proving the privilege applies." (Burrill v. Nair (2013) 217 Cal.App.4th 357, 396 (Burrill), disapproved on other grounds by Baral, supra, 1 Cal.4th at p. 396, fn. 11.)
Defendants assert the privilege applies to "nearly all of the subject statements because they concern the University's proceedings, the DFEH proceedings, the OCR investigation, and ' "anything said in the course thereof." ' " With respect to the March 31, 2016 article in the Daily Californian, however, the statements were not a report of a judicial or other proceeding, but rather were Flynn's own assertions of fact. In particular, Flynn did not identify his clients' OPHD charges as the source of his information. (See Hayward v. Watsonville Register-Pajaronian & Sun (1968) 265 Cal.App.2d 255, 259 [statements must meet "the requirement that in order to qualify as privileged . . . [the author] must state the source of . . . [his or her] information."].)
"An attorney may not . . . make defamatory allegations in a complaint and then report the same alleged facts, as facts, to the media with impunity. This is because the fair report privilege protects reports and communications 'of . . . a judicial . . . proceeding, or . . . of anything said in the course thereof.' (Civ. Code, § 47, subd. (d)(1), italics added.) That is, the statements are privileged if they are fair and true reports about the proceedings or of what was said in the proceedings. [Citations.] There is thus a critical difference between communicating to the media what is alleged in a complaint and communicating the alleged facts without reference to the complaint." (Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 435.) The issue is whether the average viewer or listener of the media reports would understand the statements as communications about the DFEH complaints (which would be privileged) or as facts (which would not). (See Kilgore v. Younger (1982) 30 Cal.3d 770, 777.) For the foregoing reasons, we conclude the FAC's allegations regarding statements made by defendants to the news media are not covered by the fair report privilege.
2. The Defamation-related Claims Meet the Minimal-merit Standard
In his declaration accompanying his opposition to the motion to strike, plaintiff states that he had not met or spoken to Bennett until September 2014. She approached him and requested independent study with him. He did not encourage her to do so. It soon became apparent that she was not proficient in Tamil and she fell behind in her work. In November 2014, she e-mailed him that she had decided to drop the independent study course. The e-mail evidence contained in the record and described above supports this account.
Plaintiff denied many of the statements made in Bennett's declaration, including her statements that he had disparaged other professors and had told her to only communicate with him using his personal e-mail. He also denied touching her or calling her his " 'poor little lamb.' " He denied reading her a poem about a wife being raped by her husband, and said the poem actually was the female author's description of "the conditions of a highly socially conservative, constrained marriage and how the female author understands her own life within it, including sexuality." After learning that an anonymous complaint had been lodged by a student, Hadler told plaintiff he had met with Bennett and reported "there's nothing there."
As to Gutierrez, plaintiff said he told her that a harassment charge had been filed against him and that he " 'could lose [his] job over this,' " referring to the charge, not his feelings toward Gutierrez. He denied talking to her about personal drug use or sex acts, and stated that he never expressed any romantic interest in her. Again, his position that nothing untoward occurred is supported by the e-mails contained in the record.
"In determining whether a statement is libelous we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communication." (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803.) " ' "[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication . . . he may be held responsible for the defamatory implication, . . . even though the particular facts are correct." ' " (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1003, fn. 10.) A court examines the totality of the circumstances, including the context in which the statement was made. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261.) The "pertinent question" is whether a "reasonable fact finder" could conclude that the media statements "as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact that tended to injure" plaintiff's reputation. (James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 13.)
The statements in the March 31, 2016 Daily Californian article that the two women were prepared to proceed with a lawsuit against plaintiff are neither false nor defamatory. Plaintiff's contention that the DFEH lacked jurisdiction to receive student complaints against teachers did not make Flynn's remarks on this point false. However, the remaining portion of Flynn's statements strongly imply that plaintiff engaged in sexual harassment. Plaintiff acknowledges going for a walk with Gutierrez, but denies he touched her or made advances towards her. He also denies he ever said he was attracted to her. He agrees he told her he could lose his job over "this," but states he was referencing an OPHD investigation, not any infatuation with her. He also denies physical touching.
As to the Guardian UK article, the overall effect of the remarks by the two women could be seen as defamatory, under the standard of review that we must apply. Gutierrez relates that plaintiff made a "come-on" to her, causing her to fear running into him on campus. She also states that he "repeatedly" sexually harassed her, touched her inappropriately, and made inappropriate comments. Bennett also states that after her interactions with plaintiff, she does not know what it is like to be a graduate student without harassment. Additionally, the allegations of the DFEH complaints that were posted on the OLC website reinforce these allegedly defamatory allegations.
Defendants assert that "[some] of the statements complained of are non-actionable opinion." While they provide record cites to the statements, they do not offer any further analysis as to why these statements are not actionable. Although mere opinions are generally not actionable, a statement of opinion that implies a false assertion of fact can be actionable. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19.) However, "[a]n opinion . . . is actionable only ' "if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false." ' " (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471.) Thus, the inquiry is not merely whether the statements are fact or opinion, but " 'whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.' " (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) The courts apply a "totality of the circumstances" test to determine both whether (a) a statement is fact or opinion, and (b) a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385-386.) "Under the totality of the circumstances test, '[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . . [¶] Next, the context in which the statement was made must be considered.' " (Id. at p. 385.) Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Overhill Farms, supra, 190 Cal.App.4th at p. 1261.) We have examined the passages from the FAC that defendants cite to and conclude they do not constitute nonactionable opinion.
Finally, on appeal defendants do not argue that the trial court erred in failing to consider their request for judicial notice of the May 24, 2017 dismissal letter from then chancellor Dirks. Instead, they rely on it in asserting "the truth of statements by [defendants] that [plaintiff] sexually harassed them can no longer be denied, because the University's administrative proceedings found that to be true, and he is collaterally estopped from relitigating the issue and underlying facts."
We as a reviewing court may take notice of matters properly subject to judicial notice, despite the failure of the trial court to do so. (See Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1380.) However, "[j]udicial notice is properly taken of the existence of a factual finding in another proceeding, but not of the truth of that finding. [Citations.] 'A court may take judicial notice of [another] court's action, but may not use it to prove the truth of the facts found and recited. [Citations.]' [Citation.] As our Supreme Court explained, judicial notice of findings of fact does not mean that those findings of fact are true; it means only that those findings of fact were made. [Citation.] ' "[N]either a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding . . . ." ' " (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.) Accordingly, defendants' collateral estoppel argument fails.
C. Intentional Infliction of Emotional Distress
The elements of the tort of intentional infliction of emotional distress are: " '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' [Citations.] . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Davidson v. City of Westminister (1982) 32 Cal.3d 197, 209.) The defendant must have engaged in "conduct intended to inflict injury or engaged in with the realization that injury will result." (Id. at p. 210.)
"Insults, indignities, annoyances, petty oppressions or other trivialities will not suffice. The conduct must be such that it would cause an average member of the community to immediately react in outrage." (Gomon v. TRW, Inc. (1994) 28 Cal.App.4th 1161, 1172; see Rest.2d Torts § 46, com. d, p. 73, quoted in Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Whether a defendant's conduct becomes "outrageous" normally presents an issue of fact, but "the court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)
In asserting that this claim should fail, defendants merely offer a conclusory statement that plaintiff failed to establish that they "committed 'outrageous conduct' or 'unlawful, unfair, or fraudulent practices.' " Viewing the evidence in the light most favorable to plaintiff, we have little difficulty in concluding that publicizing false allegations of sexual harassment for the purpose of inflicting potentially fatal damage to a person's career satisfies the relevant elements of this cause of action.
D. Abuse of Process
The tort of abuse of process arises when the court's process is used to accomplish a purpose for which it was not designed. (Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1019.) The elements of a cause of action are: "(1) an ulterior motive; and (2) a willful act in the use of process not proper in the regular conduct of the proceedings." (Ibid.) An action for abuse of process does not lie where process is used properly even though the motive may be bad. (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 826.)
Plaintiff asserts that defendants committed abuse of process by abusing DFEH procedures "as a pretext to defame [him], coerce UC to fire him, and extort financial gains." However, the tort of abuse of process "concerns the misuse of the tools the law affords litigants once they are in a lawsuit" (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40), and "requires abuse of legal process, not just filing suit. Simply filing a lawsuit for an improper purpose is not abuse of process." (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359.) Where, as here, the FAC "contains no facts which suggest that any process was used at all (like attachment or subpoena power) other than the mere filing of the suit in the first place," no abuse of process lawsuit lies. (Ibid.)
In fact, plaintiff acknowledges in his brief that the DFEH charges were never prosecuted. Thus, his reliance on Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103-104 and Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 467 to demonstrate the contrary is misplaced, as those cases permitted abuse of process claims to proceed in the limited context of litigants who demonstrated a pattern and practice of filing lawsuits in improper venues to heighten their chances of securing default judgments (Barquis), or filing a suit to initiate an improper seizure of goods (Templeton). Such is not the case here. The trial court properly struck the third cause of action.
DISPOSITION
The order is affirmed. The parties are to bear their own costs on appeal.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.