In 2009, the United States Internal Revenue Service (IRS) informed plaintiff Overhill Farms, Inc. (Overhill), that 231 of its then current employees had provided invalid Social Security numbers. Overhill was advised its use of invalid tax identification information exposed it to the imposition of penalties and criminal liability. Overhill contacted the employees identified by the IRS, advised them that their Social Security numbers were invalid according to the IRS, and provided them the opportunity to correct the erroneous information to avoid the termination of their employment with Overhill. One of the identified employees provided Overhill information showing that the employee's invalid Social Security number was an error. The remainder of the identified employees either admitted they had submitted an invalid Social Security number and were not authorized to work in the United States, or ignored Overhill's requests for information; their employment with Overhill was thereafter terminated.
Several of Overhill's employees, including defendants Teresa Cortez, Alma Salinas Renteria, Bohemia Y. Agustiano Saguilan, Marcelino Arteago, Agapita Padilla and Fernando Morales Lira, led by defendant Nativo Lopez, a "community activist" (collectively referred to as defendants), participated in protests outside Overhill's two plants and outside of one of Overhill's customer's place of business. Defendants' protest efforts included issuing a press release, carrying signs, and handing out leaflets, flyers, and handbills which stated, inter alia, that Overhill had used a "supposed discrepancy" in
Overhill sued defendants for defamation, intentional interference with prospective economic advantage, intentional interference with contractual relations, extortion, and unfair competition; all of Overhill's claims were based on alleged defamatory statements made by defendants in the course of the protests. Although Overhill sought damages, it alleged that defendants are "virtually judgment proof," and made clear that injunctive relief to prohibit future misconduct was its primary goal. Defendants filed an anti-SLAPP motion to strike the first amended complaint pursuant to Code of Civil Procedure section 425.16.
We affirm. Defendants' primary contention on appeal is that none of their alleged statements were actionable as defamation because none declared or implied a provably false assertion of fact under the totality of the circumstances. (See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19 [111 L.Ed.2d 1, 110 S.Ct. 2695] (Milkovich).) However, the statements reflected in defendants' written press release, leaflets and flyers accused Overhill of more than harboring racist attitudes; they accused Overhill of engaging in a mass employment termination based upon racist and ageist motivations. Such a contention is clearly a "provable fact"; indeed an employer's motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases. Nor can we excuse the statements on the basis they were made on "fully disclosed facts." The record indicates defendants revealed only very selected facts in support of their claims that Overhill had used the discrepancies in Social Security numbers as a mere pretext for the firings.
Defendants' other arguments fare no better. We presume there was substantial evidence to support the court's determination Overhill demonstrated a prima facie case in support of its other causes of action, and defendants did not demonstrate otherwise. Moreover, the bulk of defendants' contentions in connection with these causes of action rest on the assumption they did nothing wrongful in connection with their "peaceful protests." We have
Overhill is a publicly traded company which manufactures frozen food products and employs 1,000 employees in Vernon, California. Most of Overhill's production workers are members of the United Food and Commercial Workers Union, Local 770 (the union), which is their certified collective bargaining representative.
In 2008, the IRS conducted a revenue and payroll audit of Overhill. In 2009, the IRS notified Overhill that many of its employee provided invalid Social Security numbers and that it might be subjected to over $80,000 in penalties for its "role in reporting tax withholding through an invalid social security number." The IRS provided Overhill with a list identifying former employees and 231 then current employees, who had provided invalid Social Security numbers (the IRS list). An IRS agent orally informed Overhill's tax attorney that Overhill could not continue to employ anyone who was unable to provide a valid number.
On April 6, 2009, Overhill sent a letter to each of the employees identified on the IRS list, including Agustiano Saguilan, Renteria, and Cortez, which informed them that they had provided an invalid Social Security or tax identification number and offered them the opportunity to correct any errors or discrepancies within 30 days, during which time they would continue to be paid. Only one employee attempted to provide information showing the invalid Social Security number was an error. Overhill confirmed the invalid Social Security number was an error, corrected the mistake, and the employee remained employed with Overhill. A few other employees responded to the letter by admitting they had provided false Social Security numbers, permanent residence cards, and had entered the United States illegally. In addition,
However, the vast majority of the employees who were sent the letter (including Augustiano Saguilan, Renteria, and Cortez) did not respond to the letter or request additional time to correct the problem with their Social Security number. Notwithstanding their failure to respond to the April 6 letter, Overhill sent these employees a second letter on May 1, providing the employees an additional 30-day period (until May 31) to comply with the instructions. These employees were suspended, but continued to receive benefits at Overhill's expense through May 31.
Before making the final decision to terminate the employment of the employees who were identified on the IRS list and failed to provide information correcting the invalid Social Security numbers, Overhill's president and director of human resources met with representatives from the union who acknowledged that nearly all of the affected employees are not "authorized to work in the United States." In a letter dated April 30, 2009, the union's packinghouse director informed Overhill that "we are in the process of obtaining the tax payer identification numbers for those employees who have been identified with invalid social security numbers." However, the union never provided any such numbers or copies of any applications seeking to obtain such numbers.
Effective May 31, 2009, Overhill terminated its employment relationship with "all employees who had been identified by the IRS as having invalid social security numbers and who had failed to explain why they had furnished invalid numbers and/or still had not furnished valid numbers," which included Agustiano Saguilan, Renteria, and Cortez. Overhill explained to these employees that their failure to provide a valid Social Security or tax identification number exposed Overhill to audits and penalties by the IRS and to criminal liability if Overhill continued to use numbers the IRS had concluded were invalid.
Defendant Nativo Lopez is the national director of Hermandad Mexicana Latinoamericana (HML) which is an organization "engaged in advocating for the rights for workers to come together to organize for fair treatment in the workplace." Lopez was approached by employees of Overhill "to help them organize in response to threatened mass firings of long-time employees" due to issues with their tax identification information.
The press release asserted employees were protesting "racist firings by Overhill," and explained that although "the company alleges discrepancy of social security numbers, . . . the Social Security Administration clearly establishes with employers that such discrepancy is NOT a cause for termination." The press release asserted that Overhill dismissed workers and "threatens to continue pursuing the policy of dismissing workers and replacing them with part-time workers who do not enjoy any benefits under the current collective bargaining agreement," and that "[i]t's no accident that many of the dismissed workers have the greatest seniority—many in excess of 10 and 15 years with the company, and numerous with 19 and 20 years of service."
The signs carried by participants during the demonstrations stated, "OVERHILL FARMS UNFAIR and RACIST EMPLOYER." The leaflets distributed at the protests contained the heading "OVERHILL FARMS UNFAIR AND RACIST." The leaflet explained that Overhill had recently terminated many of its employees "due to supposed discrepancy of information on their social security numbers" although "the Social Security Administration has declared in letters to both employers and employees that such discrepancy is NOT a cause for dismissal, lay-off, or suspension from employment." The leaflet asserted that Overhill's president has "used this as a pretext to eliminate one-fourth of [its] workforce, amongst the most senior, and replace them with part-time classified employees with no benefits." The leaflet further asserted, "[m]any of us are single female heads-of-household with various children" and that "[i]n this era of recycling, [Overhill's
Protest participants also passed out flyers urging recipients to boycott Overhill, stating, as relevant to this appeal, that Overhill is "[a]n abusive and racist employer in the manner that it treats its workers," which "discriminates against Latinos"; has "unfairly terminated 300 workers," has "fired workers for expressing themselves freely according to the First Amendment of the U.S. Constitution," has "exploited Latinos for 30, 20, 15 and 10 years and then threw them to the streets—many single female heads-of-household," and has exploited part-time workers "visciously [sic] as if modern slavery were in place."
Lopez also helped workers organize demonstrations at Panda Express, which is one of Overhill's customers, during which participants distributed handbills. The handbill urged customers to contact the corporate office of Panda Express "and tell them you are concerned about the unjust terminations and discriminatory treatment by Overhill Farms company to their employees." It further stated "[o]ver 300 workers were unfairly terminated by Overhill Farms, many of them with 10, 15, and 20 years seniority with the company."
Overhill filed a first amended complaint against defendants alleging claims for defamation, intentional interference with prospective economic advantage, intentional interference with contractual relations, extortion, and unfair competition. Overhill's claims were based on defendants' alleged false statements regarding the circumstances surrounding Overhill's employment termination decision.
Defendants filed a special motion to strike under the anti-SLAPP law. The trial court granted the motion as to the unfair competition claim, but otherwise denied the motion. The trial court explained its ruling as follows: "The court finds that defendants met their burden of making a prima facie showing that the complaint arises out of the defendants' exercise of their
Defendants contend the trial court erred by denying the anti-SLAPP motion as to their claims for defamation, intentional interference with prospective economic advantage, intentional interference with contractual relations, and extortion. Defendants further contend the trial court abused its discretion in overruling certain of defendants' objections to evidence Overhill produced in opposition to the motion and in sustaining certain of Overhill's objections to evidence defendants produced in support of the motion. No defendant contends on appeal that he or she was not personally responsible for any of the statements at issue in this case, or otherwise makes distinct arguments pertaining only to him or herself. Consequently, we will assume, for purposes of our analysis, Overhill produced sufficient evidence showing defendants were acting in concert in the publication of each of the alleged defamatory statements.
We independently review the trial court's order denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 [46 Cal.Rptr.3d 606, 139 P.3d 2].) "`We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." [Citation.] However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citation.]" (Id. at p. 326.) We further observe that the anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)
Here, the trial court concluded defendants carried their burden of demonstrating Overhill's claims arose out of protected activity within the meaning of section 425.16, subdivision (b)(1), and thus moved on to consider whether Overhill carried its burden of demonstrating the probability of prevailing on the merits of its claims.
In the opening brief, defendants argue the trial court erred in concluding they carried their burden on the first prong of section 425.16, subdivision (b)(1) only on the basis Overhill's claims were based on acts covered by section
Defendants' argument does not make sense. As the trial court found that the conduct underlying Overhill's claims was protected conduct within the meaning of the anti-SLAPP statute, contrary to defendants' assertion, they had nothing more to gain by demonstrating the conduct was protected under multiple provisions of section 425.16, subdivision (e). In any event, the trial court's order containing its ruling on the anti-SLAPP motion does not state the alleged conduct underlying Overhill's claims is only protected under section 425.16, subdivision (e)(3).
We therefore next consider whether the trial court erred by concluding Overhill demonstrated a probability of prevailing on its claims.
In the appellate briefs, the parties acknowledge that for purposes of the anti-SLAPP motion, the merit of Overhill's claims for intentional interference with prospective economic advantage, intentional interference with contractual relations, and extortion rise or fall on the merit of Overhill's defamation claim because all of these claims were based on wrongful conduct in the form of defendants making allegedly defamatory statements. We therefore focus our analysis on whether Overhill showed a probability of prevailing on its defamation cause of action.
In Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 [10 Cal.Rptr.3d 429] (Franklin), a panel of this court stated: "[A]fter Milkovich, the question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. [Citations.] Milkovich did not change the rule that satirical, hyperbolic, imaginative, or figurative statements are protected because `the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.' [Citation.]" (See Milkovich, supra, 497 U.S. at p. 20 [noting that "statements that cannot `reasonably [be] interpreted as stating actual facts' about an individual" are protected so as to ensure "that public debate will not suffer for lack of `imaginative expression' or the `rhetorical hyperbole' which has traditionally added much to the discourse of our Nation"]; Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048 [72 Cal.Rptr.3d 210] ["`"Thus, `rhetorical hyperbole,' `vigorous epithet[s],' `lusty and imaginative expression[s] of . . . contempt,' and language used `in a loose, figurative sense' have all been accorded constitutional protection."'"].)
In its first amended complaint, Overhill alleged defendants had accused it of, among other things, being "racist," and using an "alleged social security number discrepancy" as an excuse "to target[] long-term employees, especially women, Hispanics and older workers for termination." We review the evidence produced by Overhill in support of each of the alleged defamatory statements by defendants—which consists of the press release, signs, leaflets, flyers, and handbills—to determine whether Overhill satisfied its burden of providing a prima facie showing defendants made a provably false assertion of fact. In our view, it did.
Overhill produced evidence that defendants carried signs stating Overhill was a "Racist Employer" (some capitalization omitted), passed out leaflets stating that Overhill inflicted "racist and discriminatory abuse" on its workforce, passed out flyers stating Overhill was "abusive and racist" and "discriminates against Latinos," passed out handbills generally referring to "unjust terminations and discriminatory treatment by Overhill,"
The term "racist" is of course an exceptionally negative, insulting, and highly charged word—it is hard to imagine being called much worse. It is,
However, defendants did not merely accuse Overhill of being "racist" in some abstract sense. The press release contains language which expressly accuses it of engaging in racist firings and declaims upon the disparate impact the firings have had on "immigrant women." Similarly, after discussing Overhill's termination of one-fourth of Overhill's workforce, the leaflets explicitly assert that the discrepancy in Social Security numbers was merely a "pretext" to eliminate certain workers, and refers to Overhill's conduct as "racist and discriminatory abuse against Latina women immigrants." Moreover, in almost every instance, defendants' characterization of Overhill as "racist" is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of Overhill's black corporate heart—it represents an accusation of concrete, wrongful conduct.
Surprisingly, defendants actually deny they ever asserted Overhill engaged in "racist firings," and go so far as to complain the court "improperly inferred" they had claimed the terminated employees were fired because of their race. According to defendants, their leaflets and materials state only "that the terminated employees were fired due to purported social security
The gist of the press statement, leaflets and flyers was that while Overhill was claiming the employment terminations were based strictly on the disparities in Social Security numbers, that claim was false, as the Social Security Administration had decreed that such discrepancies were not grounds for termination. Thus, defendants were clearly portraying the "supposed" discrepancies as merely convenient cover for Overhill's true, racist, intent. Indeed, the leaflet explicitly characterizes the Social Security number discrepancies as a mere "pretext" for the firings. Defendants' assertion no such contention was made is disturbingly inconsistent with their own writings.
Of course, we recognize that certain factual claims, if based upon "`fully disclosed'" facts, "`can be punished only if the stated facts are themselves false and demeaning.' [Citation.] The rationale for this rule is that `[w]hen the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts.' [Citation.] When the facts supporting an opinion are disclosed, `readers are free to accept or reject the author's opinion based on their own independent evaluation of the facts.' ([Citation]; see also Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1156-1157 [`when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment']; Chapin v. Knight-Ridder, Inc. (4th Cir. 1992) 993 F.2d 1087, 1093 [`[b]ecause the bases for the . . . conclusion are fully disclosed, no reasonable reader would consider the term anything but the opinion of the author drawn from the circumstances related']; Phantom Touring, Inc. v. Affiliated Publications (1st Cir. 1992) 953 F.2d 724, 730 [if author discloses basis for statement, it can only be read as the author's `personal conclusion about the information presented, not as a statement of fact'].)" (Franklin, supra, 116 Cal.App.4th at p. 387, quoting Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1438-1439.)
The evidence here was sufficient to demonstrate that defendants' disclosure of facts underlying the employment termination was materially incomplete and misleading, making their "racist firing" claim sound far more credible than it actually is. Consequently, the rule that "`[a] statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning . . .' [citation]" (Franklin, supra, 116 Cal.App.4th at p. 387), does not apply here.
Defendants also contend the court erred in refusing to apply a heightened burden of proof to Overhill's claims, and gave only "cursory" attention to their argument that such a standard was appropriate because the case arises out of a classic "labor dispute." Defendants do not, however, cite to any part of the record demonstrating either what standard of proof the court applied, or that the court actually refused to apply the one they sought. This failure to cite to evidence in the record requires us to presume the court applied the correct standard. The claim is waived.
But even if the claim were not waived, we would conclude the evidence produced by Overhill in this case was sufficient to meet even the heightened standards applicable to a claim of defamation made in the context of a classic labor dispute.
According to defendants, a claim of defamation which arises in a labor dispute enjoys the same First Amendment protections which are applied to allegedly defamatory statements made against a public figure—the standard announced in New York Times v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710]. (Linn v. Plant Guard Workers (1966) 383 U.S. 53 [15 L.Ed.2d 582, 86 S.Ct. 657].) Thus, in order to prevail, a plaintiff must establish not only a provably false statement of fact, but also demonstrate that a defendant made the statement with "knowledge of its falsity, or with reckless disregard of whether it was true or false." (Id. at p. 61; see Letter Carriers v. Austin (1974) 418 U.S. 264, 274 [41 L.Ed.2d 745, 94 S.Ct. 2770].)
The evidence produced by Overhill was sufficient to satisfy that standard. Overhill provided substantial evidence defendants either knew, or recklessly disregarded, facts demonstrating that they had not fired hundreds of Latino
Defendants also challenge the sufficiency of the evidence to sustain Overhill's claims for intentional inference with prospective economic advantage, intentional interference with contractual relations and extortion. Defendants' primary argument is that each of these claims is dependent upon the sufficiency of the defamation claim, which it characterized as lacking. As we have already explained, we find that argument unpersuasive. As we now explain, we find defendants' alternative arguments with respect to these other claims to be unpersuasive as well, and conclude the court did not err in refusing to strike them.
Defendants challenge Overhill's cause of action for interference with prospective economic advantage by arguing Overhill failed to provide any evidence of actual disruption or harm to an existing economic relationship. Specifically, defendants point to Overhill's evidence that one of its customers, Fresh and Easy, subjected it to an "ethics audit," which focused on questions about "immigration issues," in the wake of defendants' alleged defamatory statements. Defendants claim this evidence shows "mere temporal proximity" between their conduct and the audit, and was inadequate, as a matter of law, to demonstrate causation. (See Franklin, supra, 116 Cal.App.4th 375.) We cannot agree.
Here, Overhill provided evidence that Fresh and Easy began questioning Overhill's termination of the employees within two weeks of its occurrence and called for what they referred to as an "audit" of Overhill's labor practices almost immediately. They also showed that Fresh and Easy had never done anything similar in the past. We think that evidence was sufficient to support an inference of causation, which is all that is necessary in this procedural posture.
Defendants also suggest there was no direct evidence the relationship between Overhill and Fresh and Easy was actually disrupted, because Overhill otherwise acknowledged it expected the relationship to continue into the future. Defendants contend this concession demonstrates "no harm, no foul." While the Chick Hearn approach to jurisprudence has its place, the contention here lacks merit because the evidence cited reflects only that, prior to the defamatory conduct, Overhill "had every expectation that this relationship would continue." That statement merely supports the conclusion Overhill anticipated a "prospective" economic relationship with Fresh and Easy at the time of the alleged defamation.
Defendants have not done so, and have not established the court erred in rejecting the motion to strike Overhill's cause of action for interference with prospective economic advantage.
Defendants contend Overhill's claim for interference with contractual relations is preempted by the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.), but cite no authority for such preemption involving a claim asserted against third parties, based upon defamatory conduct. The case cited by defendants in support of their contention is Operating Engineers v. Jones (1983) 460 U.S. 669, 677-678 [75 L.Ed.2d 368, 103 S.Ct. 1453], which held only that an employee's state law claim for interference with his employment contract, filed against the union itself, was preempted by the NLRA.
The claim in this case does not involve any claims asserted between the employer and the union. Nor is this case merely based upon "grievances filed by Defendants and other[s] and the `threat' of continued presumptively protected peaceful labor picketing." In fact, it is based upon neither of those things. Overhill never challenges defendants' rights to pursue individual labor grievances or to engage in "protected peaceful labor picketing." If it had, defendants' preemption argument might have merit.
Defendants' alternative assertion, that Overhill "failed to establish [it] suffered an actual breach of its relationship with the Union or actual damages as a result of the grievances that were filed" is waived, as this contention also amounts to an attack on the substantiality of the evidence in support of those points, and it is unaccompanied by any attempt to summarize or analyze the evidence pertaining to that point. Indeed, the passage quoted in the previous sentence is the entire argument. It is insufficient.
Defendants also challenge the court's refusal to strike the cause of action for extortion, but largely base their argument on the assertion there is no evidence they engaged in any actions amounting to the wrongful use of "force or fear." They note, for example that "[A] person, generally speaking, has a perfect right to . . . provide information to newspapers." (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1079 [267 Cal.Rptr. 457].) But here again, defendants are simply assuming the "information" they chose to provide was accurate, and that no reasonable fact finder could conclude it was defamatory. As we have already explained, we reject this argument.
We also reject the assertion that no extortion claim could be based upon a continuing threat by defendants to portray Overhill as having engaged in a mass employment termination for racist reasons, based upon nothing more than the fact they had already begun doing so. As defendants themselves acknowledge, their alleged threat was embodied in their continuing plan to "organize a lawful boycott [against Overhill]." Such a plan, if based upon false allegations of Overhill's racist motivations for a mass firing, is not "lawful" and is clearly intended to impute disgraceful conduct to Overhill.
Defendants' final argument is that the court erred in various evidentiary rulings. They first assert the court erroneously sustained objections to portions of their own declarations, in which they purportedly claimed they had "read letters" regarding the terminations, "formed the belief that the discrepancy in social security numbers did not require termination" and engaged in "peaceful picketing." They also purportedly claimed to have formed the belief that the terminations were merely "used as an opportunity to replace long-term, higher paid workers with part-time, lower paid workers."
But even assuming defendants' characterization of the evidence is correct, we cannot conclude the court committed reversible error in excluding it. The testimony, as related by defendants in their brief, appears clearly conclusory, offering no real information as to how these employees "formed the belief" that a discrepancy in their Social Security number could not be a basis for termination, or if they also believed that ignoring the employer's specific request to correct an invalid Social Security number was no basis for termination. Consequently, a "no foundation" objection to these conclusory claims appears well taken. (Evid. Code, § 403.)
Moreover, as Overhill points out, defendants have made no effort to establish the error, if any, was actually prejudicial. It is their burden on appeal to do so, and thus the claim of error is waived. (§ 475; see Cal. Const., art. VI, § 13.)
Defendants also contend the court erred in failing to sustain some of their objections to the evidence submitted by Overhill. They identify the problematic evidence as "statements in the declarations of Diaz and Rudis, which Defendants challenged as hearsay, speculations, improper opinions and unsupported conclusions regarding Defendants' state of mind in the `actual' malice proof." They do not specifically quote or otherwise fully identify the evidence they refer to. The failure to do so amounts to a waiver of the contention. "`An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.'" (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862 [92 Cal.Rptr.3d 717], quoting Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 [71 Cal.Rptr.3d 775].)
With respect to the one portion of testimony actually delineated by defendants, we discern no potential for prejudice—and again, defendants make no effort to demonstrate such prejudice. Specifically, defendants claim the purported statements by witness Diaz, to the effect that she "knows, based on her own Latina heritage that the company does not discriminate," were inadmissible. But again, because Overhill was only required to demonstrate a prima facie case, that purported statement is of no particular significance. Other evidence offered by Overhill was sufficient to demonstrate that its decision to terminate hundreds of workers was based upon reasons other than race, contrary to the claims made by defendants in their allegedly defamatory statements. Thus, Overhill demonstrated its prima facie case without regard to any opinion offered by a Latina employee, and the inclusion or exclusion of that statement was of no consequence.
In light of the foregoing, we are thoroughly convinced defendants have failed to demonstrate the court's evidentiary rulings had any discernable impact on its decision to deny the bulk of their anti-SLAPP motion. Consequently, those rulings provide no basis for reversing the decision.
The order is affirmed. Overhill shall recover its costs on appeal.
Rylaarsdam, Acting P. J., concurred.
I respectfully dissent.
The First Amendment to the United States Constitution guarantees a cherished freedom—the right to speak openly and freely. (U.S. Const., 1st Amend. ["Congress shall make no law . . . abridging the freedom of speech . . . ."].) Within the past few years, the United States Supreme Court has broadly protected speech in a public forum in the analysis of permissible speech by candidates for judicial office (Republican Party of Minn. v. White (2002) 536 U.S. 765 [153 L.Ed.2d 694, 122 S.Ct. 2528]), and of corporations in elections (Citizens United v. Federal Election Comm'n (2010) 558 U.S. ___ [175 L.Ed.2d 753, 130 S.Ct. 876]). The anti-SLAPP (strategic lawsuit against public participation) statute provides that it should be construed broadly to protect against "lawsuits brought primarily to chill the valid exercise of the
Defendants' anti-SLAPP motion should have been granted because none of defendants' statements contains actionable defamation. The statements describe Overhill Farms, Inc.'s (Overhill), firing of a large number of Hispanic and female employees as "racist" and "discriminatory" in the context of vigorous public protests. Overhill failed to produce evidence showing defendants declared or implied a provably false assertion of fact within the meaning of the First Amendment and defamation law jurisprudence (see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19 [111 L.Ed.2d 1, 110 S.Ct. 2695]); thus, Overhill's defamation claim fails as a matter of law. The majority opinion is an unprecedented and unwarranted extension of defamation law and is contrary to the First Amendment.
By this lawsuit, Overhill seeks to curb and chill employee protests. As acknowledged by the majority opinion, Overhill has "made clear that injunctive relief to prohibit future misconduct was its primary goal." (Maj. opn., ante, at p. 1252.) (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [49 L.Ed.2d 683, 96 S.Ct. 2791] ["If it can be said that a threat of criminal or civil sanctions after publication `chills' speech, prior restraint `freezes' it at least for the time."].) To illustrate this point, would it be actionable if the Los Angeles Times, the Orange County Register, Fox News, or MSNBC complained that actions by anyone were "racist" or "discriminatory"? Of course not. Employees complaining about their employer enjoy the same protection.
Considering defendants' speech under the totality of the circumstances in this case, their speech too is constitutionally protected from a civil suit. In my view, Overhill is perfectly capable of ably presenting its side of the story in the public forum and has done so. Justice Brandeis's statement in Whitney v. California (1927) 274 U.S. 357, 377 [71 L.Ed. 1095, 47 S.Ct. 641] (conc. opn. of Brandeis, J.) is apt: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Defendants' assertions might not be persuasive, but they are not actionable.
I begin my analysis by reviewing the legal points where the majority and I agree. I agree that in order to survive defendants' anti-SLAPP motion,
As discussed in detail post, I part company with the majority opinion in two fundamental respects. First, my colleagues in the majority have incorrectly made this court the first state or federal appellate court in America, ever, to hold that the epithet "racist" constitutes a provably false assertion of fact as the basis of a claim of defamation. The majority attempts to argue that it is only so holding because the term "racist" was used in combination with other words. But those other words are not actionable and the majority does not and cannot argue otherwise. Whether the word "racist" is used as a noun or an adjective in combination with other words does not matter.
Second, in my view, the majority misapplies the United States Supreme Court opinions in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19 and Linn v. Plant Guard Workers (1966) 383 U.S. 53, 58 [15 L.Ed.2d 582, 86 S.Ct. 657]. Defendants' communications in their dispute with their employer simply did not contain a provably false fact and the reasons for their allegations were disclosed. (Franklin, supra, 116 Cal.App.4th at p. 387.) The majority opinion's parsing of the one word "discrepancies" in reaching its conclusion is not consistent with United States Supreme Court jurisprudence in defamation cases. I agree the employees' claims might not be persuasive, but that does not make them defamatory.
Overhill argues it produced prima facie evidence of defamation showing defendants made the following statements: (1) Overhill is a racist employer; (2) "Overhill targeted women, Hispanics and older workers for termination"; (3) "Overhill targeted long-term employees and replaced them with part-timers with no benefits"; (4) "Workers were fired for a social security number `discrepancy' which is `not a cause for termination'"; and (5) "Overhill
It is undisputed that Overhill terminated the employment of a large number of employees who were Hispanics and women. Overhill contends defendants defamed it by characterizing Overhill's conduct as racist and discriminatory.
As the majority opinion acknowledges, the simple use of the terms "racist" and "discriminatory" does not constitute actionable defamation because such terms lack precise definition and are hard to prove. (See, e.g., Stevens v. Tillman (7th Cir. 1988) 855 F.2d 394, 402 [neither general statements charging a person with being racist, unfair, unjust, nor references to general discriminatory treatment, without more, constitute provably false assertions of fact]; Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655 (8th Cir. 1994) 39 F.3d 191, 196 [use of terms like "unfair" and "fascist," the court stated, "`is not to falsify facts'"].)
Here, defendants did not merely utter the terms "racist" and "discriminatory" in a vacuum. The press release states that Overhill engaged in racist firings and references the disparate impact the firings had on "immigrant women." The leaflets state the discrepancies in Social Security numbers were used as a pretext to eliminate certain workers, and refer to Overhill's conduct as "racist and discriminatory abuse against Latina women immigrants."
In applying the totality of the circumstances test (Franklin, supra, 116 Cal.App.4th at pp. 385-386), we consider not only the language used, but also its context. Here, without exception, defendants' statements were made in the context of indisputably heated protests and demonstrations concerning Overhill's decision to terminate the employment of a large number of employees who were identified on the IRS list and failed to provide valid Social Security or tax identification numbers.
Although the demonstrations and protests in the instant case did not involve a union and thus might not constitute a "labor dispute" in the traditional use of the phrase, the context is similar.
But even if the audience of such publications might not construe such statements as rhetorical hyperbole, a closer examination of the language of the press release and the leaflets reveals the absence of any charge that Overhill made its decision to terminate certain employees' employment
In addition, as acknowledged in the majority opinion, "`[a] statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.' [Citation.] The rationale for this rule is that `[w]hen the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts.'" (Franklin, supra, 116 Cal.App.4th at p. 387.) Here, the press release and the leaflets disclosed the facts underlying their use of the word "racist" and reference to the termination of employment of Latina females.
Overhill does not dispute that its decision to terminate the employment of those employees who had unresolved invalid Social Security or tax identification numbers affected a large number of Hispanics and women. Overhill does not dispute that the Social Security Administration has stated that a discrepancy with a Social Security number, in and of itself, is not a terminable offense. Contrary to Overhill's characterizations of defendants' statements in the majority opinion and the respondent's brief, none of the protest documents (the press release, signs, leaflets, flyers, and handbills) relied upon by Overhill states that it targeted Hispanics or Latinos in making its decision to terminate employment.
The majority opinion reasons Overhill was defamed by the press release's and the leaflets' statements that the employees' employment was terminated due to "discrepancies" in the Social Security numbers because the evidence shows they had invalid Social Security numbers that they failed to correct. But having an invalid Social Security number can be fairly characterized as having a discrepancy in the Social Security number. Even if the word
As discussed ante, Overhill does not dispute that a discrepancy in a Social Security number might be insufficient "cause" for employment termination without more. The reference to the Social Security Administration's statement that such discrepancies do not constitute such cause does not mean that Overhill was outside of its rights in making the employment termination decisions in this case. As discussed ante, there is no evidence defendants made any statement Overhill violated the collective bargaining agreement with the union in implementing the employment termination decisions. Overhill has therefore failed to establish a provably false statement of fact in this regard as well.
Because Overhill failed to make a prima facie showing defendants made a provably false assertion of fact, Overhill failed to show a probability of prevailing on its defamation claim. I do not condone the tone or content of the publications at issue in this case. The issue in this case is whether Overhill produced evidence defendants made a provably false assertion of fact and, for the reasons discussed ante, I disagree with the majority and conclude Overhill did not.
The merit of Overhill's claims for intentional interference with prospective economic advantage, intentional interference with contractual relations, and extortion rise or fall on the merit of its defamation claim because all of these
For all these reasons, the trial court should have granted the motion to strike in its entirety and the order should be reversed.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
We do not believe it necessary to parse defendants' statements that closely to see the error in their position, but it does serve to emphasize the stretch they have had to make to raise the argument.
