Plaintiff Lisa Aber sued her employer and two of its employees based on an alleged sexual assault by the employees. Defendant Michael Comstock, one of the employees, filed a cross-complaint against Aber, alleging claims for defamation and intentional infliction of emotional distress. Aber filed a special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court granted the motion and dismissed the cross-complaint. Comstock appeals. We affirm.
The litigation began with a complaint filed by Aber on August 31, 2010. It named three defendants: Wolters Kluwer United States (Kluwer), her employer, and Comstock and James Cioppa, two employees of Kluwer. The complaint alleged four causes of action: (1) sexual harassment; (2) failure to
The complaint was based on events on the evening of June 5, 2010, at and after a business-related social gathering where, Aber essentially alleged, Cioppa, her supervisor and an officer at Kluwer, and Comstock, a fellow employee, tried to get her drunk and convince her to have sex with them, implying that her job would be secure if she did so. Aber alleged what occurred that evening in vivid detail, in 12 paragraphs to be exact.
On December 21, 2010, Kluwer filed its answer to the complaint, and on April 6, 2011, Cioppa filed his answer. Meanwhile, Comstock was not served with the complaint until May 7, 2011. On June 3, 2011, Comstock filed his answer and also a cross-complaint, the pleading that is the subject of this appeal.
Comstock's cross-complaint alleged two causes of action: (1) defamation and (2) intentional infliction of emotional distress. Both causes of action were alleged to arise out of the same "common allegations," which included the following:
Comstock first "denies any wrongdoing and denies all material allegations against him" in Aber's complaint. Then, Comstock went on to allege a version of events on June 5, 2010, that was in stark contrast to that alleged by Aber. It began with Aber e-mailing Comstock that she would "love to meet" Comstock and Cioppa on June 5; that they met and had one or more drinks at the One Market Restaurant; and then it alleged this:
On July 8, 2011, Aber filed a special motion to strike the cross-complaint under Code of Civil Procedure section 425.16 (SLAPP or anti-SLAPP motion).
On July 26, 2011, Comstock filed his opposition to the SLAPP motion. It included a memorandum of points and authorities and three declarations, of Comstock's attorneys, Shane Anderies and Anne Leinfelder, and of Comstock himself. Comstock's opposition also included a request for judicial notice, seeking notice of a description of a case handled by Comstock's attorney, Anderies.
The Anderies declaration attached numerous pages from Aber's deposition and what were claimed to be copies of telephone records and the notes of Kluwer human resources manager Erin Bush. The Leinfelder declaration
On August 1, 2011, Aber filed her reply. It included a memorandum of points and authorities; a declaration of her attorney, John Scott Bonagofsky; and evidentiary objections to portions of the Comstock and Anderies declarations. Aber also filed opposition to the request for judicial notice.
The motion was scheduled for hearing for August 8. It came on as scheduled, and the trial court granted it that day. However, Comstock's
The motion was heard again on December 6, 2011, and following a hearing
Comstock filed a timely notice of appeal.
We recently described the SLAPP law and its operation in Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463-464 [137 Cal.Rptr.3d 455] (Hecimovich):
As quoted above, Comstock's two causes of action are based on the fundamental allegations that Aber published false statements about him to others, specifically as follows: Aber "orally published false statements about COMSTOCK to third parties, including but not limited to friends, employees of WOLTERS KLUWER, health care practitioners, and the police. These false statements included the fabricated story that COMSTOCK had sexually assaulted ABER on the night of June 5, 2010"; "ABER reported to a nurse at Kaiser Permanente in or around June 2010 that she had been sexually assaulted.... Aber provided the nurse with COMSTOCK's name and place of employment.... [T]he nurse then told ABER the nurse must report the sexual assault to the police.... [T]he nurse then called the police and asked ABER to repeat her story to the police." Finally, Aber is alleged to have reported the claimed sexual assault to "ERIN BUSH, Human Resources, at WOLTERS KLUWER in or around late June 2010."
In short, Comstock alleges statements to four persons or groups of persons: (1) the police; (2) health care practitioners, specifically the nurse at Kaiser Permanente; (3) employees of Kluwer, including specifically Erin Bush; and (4) "friends."
Aber contends that Comstock's cross-complaint is within the SLAPP statute on two separate bases. The first is under section 425.16, subdivision (e)(1) and (2), as statements made in, or in connection with matters under review by, an official proceeding or body. The second is under section 425.16, subdivision (e)(4), as statements made in connection with an issue of public interest. We agree with Aber's first contention. We need not reach the second.
Comstock now admits that filing a report with the police is within section 425.16, subdivision (e)(1) and (2).
An anti-SLAPP motion is brought against a "cause of action" or "claim" alleged to arise from protected activity. (See § 425.16, subds. (b)(1), (3) & (c)(2).) The question is what is pled — not what is proven. The observations by our colleagues in Division Five make the point. As they recently put it in Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1548 [110 Cal.Rptr.3d 129]: "Smith's purported oral statements ... constitute statements made in connection with an issue under consideration by a judicial body [citation]. [Citation.] The alleged activity therefore falls within the scope of the SLAPP statute." (Italics added.) Or earlier, in Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 1004 [85 Cal.Rptr.3d 880]: "[B]y demonstrating that ... alleged statements were in connection with an issue under consideration by the district attorney, respondents made a prima facie showing that the acts underlying Schaffer's causes of action are within the ambit of the anti-SLAPP statute." (Italics added.)
In short, it is Comstock's allegation that Aber complained to the police that brings his cross-complaint within the SLAPP statute. Comstock cannot defeat that allegation by claiming that Aber did not do what he alleges she did.
Relying on Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1579 [31 Cal.Rptr.3d 368] (Siam), Aber argued that her statements to the Kaiser nurse were within SLAPP, as statements made to a mandated reporter and thus within section 425.16, subdivision (e)(2).
While it is true that Siam involved a different Penal Code section — 11172 rather than 11160, applicable here — we fail to see the significance. Both statutes mandate reports to the government; both provide immunity for reporters. It would thus appear that the Legislature intended that information about potential criminal conduct be provided to law enforcement, for it to determine what action, if any, to take. Put otherwise, it would appear that the Legislature intended that reporting of information to a mandatory reporter result in a governmental investigation — an "official proceeding" — even when the victim does not directly report to the law enforcement agency.
As the court put it in Siam, involving child abuse: the causes of action were "based upon defendant's reports of child abuse to `people who were legally required to report any child abuse allegations ... in an attempt to manufacture corroboration' for his own false allegations. That is, the statements were designed to prompt action by law enforcement or child welfare agencies. Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784 [54 Cal.Rptr.2d 830]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109-1110 [81 Cal.Rptr.2d 471, 969 P.2d 564]; ComputerXpress, Inc. v. Jackson[, supra,] 93 Cal.App.4th [at p.] 1009 ....) Thus, defendant's reports of child abuse to persons who are bound by law to investigate the report or to transmit the report to the
As quoted above, section 425.16 must be "construed broadly." And we construe it to hold that Aber's statements to the Kaiser nurse — who was required to, and did, report it to law enforcement — is protected activity under section 425.16.
Aber argued that her statements to Bush, the Kluwer HR manager, are protected under section 425.16, subdivision (e)(1) and (2), as statements prior to litigation or other official proceedings. Her theory was that the statements were necessary to address a commonly used affirmative defense by an employer in a sexual harassment case — a defense, not incidentally, that Kluwer has in fact asserted against Aber here.
The defense is that set forth in Faragher v. City of Boca Raton (1998) 524 U.S. 775 [141 L.Ed.2d 662, 118 S.Ct. 2275], which held that in an action by an employee, the employer can assert as an affirmative defense that the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer. (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1038-1039 [6 Cal.Rptr.3d 441, 79 P.3d 556] [analyzing the defense].)
Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115, on which Aber relies, is persuasive. There, the Supreme Court held that "`[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation],... such statements are equally entitled to the benefits of section 425.16.'" Thus, the court held that some of the allegedly defamatory statements protected by section 425.16 were in connection with a potential complaint to HUD and a potential small claims case, neither of which had been filed. (Briggs v. Eden Council for Hope & Opportunity, supra, at pp. 1109-1110, 1114-1115.) Other cases are to the same effect, holding that actions based on prelitigation statements or writings may be within the SLAPP statute. (See, e.g., Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [73 Cal.Rptr.3d 383] [letter to employer's customers accusing ex-employee of misappropriation of trade secrets and threatening to file litigation]; CKE Restaurants, Inc. v. Moore
Comstock's response is to say that reliance on Briggs is "misplaced," and that Aber's argument "completely ignores, or at least disregards, Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501 [38 Cal.Rptr.3d 467], which is precisely on point." Olaes is not on point, let alone precisely.
In Olaes a former employee sued his former employer for defamation, alleging that the company falsely accused him of sexual harassment and failed to adequately investigate prior to terminating him. The company filed a SLAPP motion, which the trial court denied. The Court of Appeal affirmed, but not on any basis availing to Comstock. There, the court noted, it was the "clause, `any other official proceeding authorized by law,' that forms the heart of this dispute." (Olaes v. Nationwide Mutual Ins. Co., supra, 135 Cal.App.4th at p. 1505 (Olaes).) And, the court went on to conclude, the employer's sexual harassment procedure was not within the ambit of section 425.16. The fact that the company's personnel department was charged with implementing an antiharassment policy and established procedures mimicking those of a governmental agency did not transform it into an administrative body. The company possessed neither the powers nor the responsibilities of a government agency and its human resources specialist was not an administrative body possessing quasi-judicial powers. (Olaes, supra, at pp. 1508-1509.)
In short, the employer's argument in Olaes was that the investigation of a harassment claim was an official proceeding authorized by law, and therefore the claims against it were subject to section 425.16, subdivision (e)(1) and (2). (Olaes, supra, 135 Cal.App.4th at pp. 1505-1508.) That is not Aber's argument here, which is that her statements to Bush were protected because they were statements prior to litigation, necessary to defeat an affirmative defense that Kluwer could — indeed, did — assert in her lawsuit. That argument was not raised or considered in Olaes.
Our colleagues in Division Three have weighed in on the point: a "`cause of action will be subject to section 425.16 unless the protected conduct is "merely incidental" to the unprotected conduct.'" (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [35 Cal.Rptr.3d 31].) Likewise, Division Five wrote: "A mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the unprotected activity."
Applying that rule here leads to the conclusion that Comstock's causes of actions are within SLAPP, as the only allegation that is "incidental" is the vague allegation about "friends." Or, to state it conversely, the essence of the defamation claims are the specific allegations about what Aber said to the Kaiser nurse and to Bush. It is the generic allegations that are "incidental."
Arguing to the contrary, Comstock cites the recent case of City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 772 [142 Cal.Rptr.3d 74] where, Comstock asserts, the Court of Appeal dealt with a similar situation. Thus Comstock quotes: "`Given the foregoing analysis, we are confronted with the following situation: What should be the result of an anti-SLAPP motion when a combined, or mixed, cause of action includes one allegation of unprotected activity, in which the cross-complainant has established a probability of prevailing, and a second allegation of protected activity, in which the cross-complainant has not established a probability of prevailing. We conclude the lawsuit-related allegations may be parsed from the causes of action and stricken, while the allegations related to non-protected activity may remain as part of the complaint.'"
We thus conclude Aber has met the threshold showing under step 1 of the SLAPP analysis, demonstrating that the allegations in Comstock's cross-complaint are within the SLAPP law as within section 425.16, subdivision (e)(1) and (2).
We confirmed the applicable law in Grewal v. Jammu, supra, 191 Cal.App.4th at pages 989-990: "We decide the second step of the anti-SLAPP analysis on consideration of `the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).) Looking at those affidavits, `[w]e do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law.' (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700 [61 Cal.Rptr.3d 29].) [¶] That is the setting in which we determine whether plaintiff has met the required showing, a showing that is `not high.' (Overstock.com, Inc. v. Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of the Supreme Court, 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 [97 Cal.Rptr.2d 179, 2 P.3d 27].) In the words of other courts, plaintiff needs to show only a case of `minimal merit.' (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP[, supra,] 133 Cal.App.4th [at p.] 675 ..., quoting Navellier v. Sletten[, supra,] 29 Cal.4th 82, 95, fn. 11 ....)
"... [T]he anti-SLAPP statute operates like a `motion for summary judgment in "reverse."' (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719 [34 Cal.Rptr.2d 898, 882 P.2d 894].) Or, as that court would later put it, `Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like
While Comstock's burden may not be "high," he must demonstrate that his claim is legally sufficient. (Navellier v. Sletten, supra, 29 Cal.4th at p. 93.) And he must show that it is supported by a sufficient prima facie showing, one made with "competent and admissible evidence." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236 [132 Cal.Rptr.2d 57]; see Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497 [45 Cal.Rptr.2d 624].) Comstock's demonstration does not measure up.
Here, as noted, Comstock's pleading included the following:
Pleading is one thing. When Aber filed the SLAPP motion, Comstock now had to show a likelihood of success on his claims, a showing he had to make with admissible evidence. This, he has failed to do.
Referring to his burden in his opening brief, for example, Comstock asserts that he met his burden in his declaration where he referred to Aber's statements as false, citing to paragraph 7 of the declaration. In that paragraph Comstock merely asserts, however conclusorily, that he "learned from Aber's deposition testimony and documents produced by Aber and Wolters Kluwer that Aber had made false statements about me to third parties, including a nurse at Kaiser Hospital, possible [sic] the police, Wolters Kluwer's Senior Human Resources Manager, Erin Bush, and Aber's friends and other Wolters Kluwer employees." Such assertion does not identify "either the specific words or the substance of" the allegedly defamatory statements.
It is true that Comstock's cross-complaint alleged that Aber's statements were false. But as we confirmed in Hecimovich, supra, 203 Cal.App.4th at p. 474, "plaintiff cannot rely on his pleading at all, even if verified, to demonstrate a probability of success on the merits."
Comstock's opening brief also cites to evidence from Aber's deposition in which she admits she made calls to certain people; he also cites to an e-mail from a third party. From this evidence Comstock asserts that Aber "must have" made defamatory comments about him. Such an inference cannot be indulged. Not legally. Not factually.
As to the factual, asked at deposition about possible communications with third persons, Aber testified either that she did not tell anyone else anything specific about the incident with Comstock (just that something had happened that was work related) or that she did not remember what was discussed. Comstock does not explain how it can be reasonably inferred that merely because Aber may have had conversations with some people around the time of Comstock's claimed assault on her, they must have included defamatory statements about him.
Comstock's reply brief attempts to get more specific, asserting as follows: "Comstock has identified substantial, additional evidence that Aber likely repeated her defamatory statements to other third parties, which statements are clearly not protected. Specifically, Aber spoke with Mark Green, a trusted supervisor at Wolters Kluwer, the evening of the alleged assault. [Citation.] Aber also spoke with a friend, Nick Kavayiotidis, 19 times between 10:52 p.m. on June 5 and 7:51 a.m. on June 8, including three times the night of the alleged assault after she returned home (including two after midnight) and subsequently 12 more times on Sunday, June 6, the day after the alleged sexual assault took place. [Citations.] A few weeks after June 5, 2010, Aber told a friend, Katie Schiele, while crying, that she thought her job was in jeopardy, that there had been a merger and that `something happened,' prompting Schiele to give Aber an attorney's telephone number. [Citations.] Comstock received an email from Jim Cioppa on August 6, 2010 stating that Aber was telling employees at Wolters Kluwer that she got Comstock fired
We have several reactions to Comstock's position vis-à-vis Aber's friends. First, as noted, Aber's deposition was taken on March 10, 2011; Comstock was not served until May 7; his response was not due until late May, and in fact was not filed until June 3. Comstock could have taken the depositions of any of those claimed witnesses before any pleading was due. He did not. And even after Aber's anti-SLAPP motion was filed on July 8, Comstock could have sought discovery before the SLAPP motion was heard. (See § 425.16, subd. (g) [if good cause is shown, court may permit discovery after the motion to strike is filed].) In short, Comstock made no such attempt at discovery. Nor did he provide any declaration from Green (who supposedly worked with him), or from Kavayiotidis, or Schiele.
Second, and perhaps most telling, Comstock provided no declaration from Cioppa, his coworker — and codefendant. After all, it was Cioppa who could testify about the e-mail. But more importantly, Cioppa could support some of Comstock's specific allegations, including that Comstock had "fallen asleep" in the cab. He could also support the alleged communications between Aber and Cioppa, including the day after the incident and on June 7.
Comstock contends that there is no evidence in the record that Aber in fact followed up with the Kaiser nurse or the police, which shows that she did not believe her statements about the claimed assault to be true. There is nothing in the record indicating whether Aber did or did not follow up with the Kaiser nurse after their phone call. But whether she did or not, it does not support a reasonable inference that Aber believed her statement was false.
Finally, Comstock asserts that because Aber allegedly made similar statements to Bush and then sued Kluwer, a jury could reasonably conclude that her "statements were knowingly false." We fail to follow the logic.
Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696 [131 Cal.Rptr.3d 171], relied on by Comstock, is inapplicable. It is true that the Court of Appeal affirmed that the defendants failed to show that the reports they filed with the police authorities were not "`protected activity'" within the SLAPP statute. (Id. at p. 701.) But the reason was, as the trial court found, "that the record `conclusively' established that Alice's and Toothman's statements to the
In sum, Comstock has not submitted any admissible evidence that Aber made defamatory statements about him. But even if he had, he would still not prevail, because of the law of privilege set forth in Civil Code section 47, subdivisions (b) and (c).
Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 [2 Cal.Rptr.3d 385], cited by Comstock in his reply brief, is not to the contrary. The plaintiff there was a token collector who sued another token collector, asserting that the defendant had told private citizens that the plaintiff had stolen a valuable item from him. The trial court denied a SLAPP motion, and the Court of Appeal
Civil Code section 47, subdivision (c) provides that a privileged publication is one made "[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information."
Here, Aber's report to the Kaiser nurse was to an interested person, not to mention one who was a mandated reporter. Likewise, Comstock's allegations against Aber show that Aber's report to Bush, made pursuant to her employer's policy requiring that sexual harassment be reported to its human resources personnel, was to a person interested in the communication. Thus, the reports to the Kaiser nurse and to Bush are therefore conditionally privileged under Civil Code section 47, subdivision (c), providing Aber a possible affirmative defense, one lost only if Comstock could show malice.
Comstock's second cause of action for intentional infliction of emotional distress is based on the same allegations as his first cause of action. As Comstock's brief bluntly puts it, "The same false statements establish outrageous conduct by Aber to support Comstock's intentional infliction of emotional distress claim." Comstock is wrong.
The complained-of conduct here — reporting a sexual assault to the Kaiser nurse and Kluwer's HR department — is hardly "extreme and outrageous." Beyond that, Comstock has provided no evidence that he suffered any emotional distress, let alone severe distress.
Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893 [136 Cal.Rptr. 321], disapproved in Silberg v. Anderson, supra, 50 Cal.3d at page 219, and Conley v. Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126 [102 Cal.Rptr.2d 679], the two cases cited by Comstock, are easily distinguishable. To begin with, both of them involved demurrers, not a setting, as here, where declarations were involved. Beyond that, the facts are hardly comparable.
Kinnamon sued a lawyer who, in an attempt to collect $250 owed on a check written on insufficient funds, sent a letter to Kinnamon threatening to file a criminal complaint. The Court of Appeal held it stated a claim: "Here the first amended complaint alleges outrageous conduct on the part of the attorney defendants acting as agents of defendant O'Cana. Rule 7-104 of the California Rules of Professional Conduct states in pertinent part: `A member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action ....' Thus, the conduct charged in the complaint is of such an extreme nature as to be `outrageous.' (See Anno., Debt Collection — Emotional Distress, 46 A.L.R.3d 772, 780-781; [citations].)" (Kinnamon v. Staitman & Snyder, supra, 66 Cal.App.3d at p. 896.)
Conley, a Catholic priest, sued the Archdiocese, claiming it retaliated against him for conduct that was consistent with — if not mandated by — the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) The Court of Appeal held that the Archdiocese's conduct in sanctioning Conley
The order striking the cross-complaint is affirmed.
Kline, P. J., and Haerle, J., concurred.
"Assaultive or abusive conduct" includes battery, sexual battery, rape, or an attempt to commit any of said crimes. (Pen. Code, § 11160, subd. (d)(8), (9), (14), and (24).)
