NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

SUMMARY

Plaintiff Paula Torres sued defendants Atlantic Recovery Services, Inc. (Atlantic) and Richard Ciampa (collectively defendants) for misappropriation of name (Civ. Code, § 3344), common law misappropriation, defamation, invasion of privacy, and intentional infliction of emotional distress, claiming defendants falsely identified her as Atlantic's chief financial officer (CFO) on forms filed with the Internal Revenue Service (IRS) and California Secretary of State. Defendants appeal the trial court's order denying their special motion to strike plaintiff's causes of action for defamation, intentional infliction of emotional distress, and common law misappropriation (denied as to Atlantic only) under Code of Civil Procedure section 425.16.1 They contend the trial court erred in finding plaintiff demonstrated a probability of prevailing on these claims, reasoning she failed to adduce sufficient evidence of damages and failed to establish the misappropriation of her name was commercially beneficial to Atlantic.

We affirm in part and reverse in part. We find the trial court correctly held the complaint arises from protected activity, and that plaintiff made a sufficient showing that her common law misappropriation claim is legally sound and supported by a sufficient prima facie showing of facts. However, we find plaintiff failed to adduce evidence of special damages to support her claim of defamation or of severe emotional distress to support her claim for intentional infliction of emotional distress, and we therefore reverse the order denying the motion to strike those two causes of action.

FACTS

Richard Ciampa is the chief executive officer (CEO) of Atlantic, a nonprofit corporation providing drug and alcohol counseling. Plaintiff owns the California Certification Board for Chemical Dependency Counselors, which certifies drug and alcohol counselors for the State of California. Between June 2007 and September 2009, plaintiff worked as an independent contractor for Atlantic, helping Atlantic generate demographic information on its clients, and pursue accreditation by the Commission on Accreditation of Rehabilitation Facilities. In 2007 and 2009, Atlantic listed plaintiff as its CFO or as a member of its board of directors on filings made with the Secretary of State (Statements of Information) and the IRS (IRS Forms 990). Plaintiff claims she never served in these capacities, and therefore the forms contained false information, published without her consent. She claims the filings are damaging, because Atlantic "is under investigation for fraudulent financing practices."

Defendants filed a special motion to strike her complaint, acknowledging that Atlantic had filed Statements of Information and IRS Forms 990 bearing plaintiff's name, but asserting they were not false because plaintiff was a member of its board and its treasurer at the time the filings were made. In opposition to the motion, plaintiff submitted a declaration averring she never served on Atlantic's board or acted as its CFO or treasurer, and that she was "stunned, extremely distraught and frightened about the potential repercussions" of Atlantic's filings.

The trial court granted the motion in part and denied it in part. The court found defendants made a prima facie case that plaintiff's claims arose from conduct in furtherance of defendants' exercise of the rights of petition or free speech in connection with a public issue within the ambit of the SLAPP2 statute under section 425.16, subdivision (e)(4). However, the court also found that plaintiff satisfied her burden of demonstrating a probability of success on the merits of her claims for defamation, intentional infliction of emotional distress, and common law misappropriation, but not the remaining claims. The trial court found submission of the forms "undoubtedly was to Atlantic Recovery's advantage [because] . . . [s]ubmitting the forms with the required information enabled Atlantic Recovery to continue doing business without scrutiny for noncompliance." The trial court also found plaintiff produced evidence the publications were made without her consent and knowledge, and that she suffered emotional and reputational damages.

This timely appeal followed. Respondent moved in this court to dismiss the appeal as moot, on the basis that she dismissed her complaint following the trial court's ruling on the special motion to strike. We denied the motion. No further appearance by respondent has been made.

DISCUSSION

1. Standard of Review

A defendant opposing a SLAPP claim may bring a special motion to strike any cause of action "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." (§ 425.16, subd. (b)(1).) A special motion to strike may be addressed to individual causes of action and need not be directed to the complaint as a whole. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.)

An anti-SLAPP motion involves a two-step process. First, the defendant must make a threshold showing that the challenged causes of action arise from protected activity. Then, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claims. (Taus v. Loftus (2007) 40 Cal.4th 683, 712.) In ruling on an anti-SLAPP motion, the trial court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Our review on appeal is de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)

2. Protected Activity

The defendant has the burden of making a prima facie showing that one or more causes of action arise from an act in furtherance of the constitutional right of petition or free speech in connection with a public issue. (Equilon, supra, 29 Cal.4th at p. 67.) "[C]onduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest" is protected by section 425.16, subdivision (e)(4). Although subdivision (e)(4) refers only to "conduct," it has been construed broadly to include speech. (Carver v. Bonds (2005) 135 CaI.App.4th 328, 342-343.) "Public interest" has also been broadly construed to include governmental matters as well as "private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1233.)

The activity underlying each of plaintiff's claims is the filing of "false" documents with the Secretary of State and the IRS, which was necessary to maintain Atlantic's right to conduct business within this state and its nonprofit status. California Corporations Code section 6210 requires all nonprofit corporations to file an annual Statement of Information with the Secretary of State listing the names of its CEO, secretary, CFO, its principal office address, and its agent for service of process. Internal Revenue Code section 501 (26 U.S.C. § 501) exempts nonprofit corporations from paying federal income tax, and such organizations are required to file special returns. (26 U.S.C. § 6033.) Both the Corporations Code and the Internal Revenue Code require that the filings at issue here be made available to the public. (Corp. Code, § 1502, subd. (h); 26 U.S.C. § 6104, subd. (b).)

When it enacted the relevant portions of the Corporations Code, the California Legislature noted: "It is the intent of the Legislature to provide for the timely and accurate disclosure of information to the public regarding key relationships and activities of public corporations doing business in California." (Stats. 2004, ch. 819, § 1(a).) The Statement of Information on file with the Secretary of State allows an aggrieved citizen to identify the appropriate agent for service of process for a corporation, or to determine the identity of potentially liable parties for the business's torts. The IRS forms show the sources of a nonprofit's funding. The public has an interest in knowing the organization and funding of tax exempt entities that realize the benefits of conducting business in California without the burden of contributing to the tax base that funds those benefits.

In the proceedings below, plaintiff conceded her complaint arose from protected activity but argued the SLAPP statute does not protect defendants' activities because it is a crime to file false tax returns and Statements of Information. Plaintiff is correct that section 425.16 cannot be invoked by a defendant whose "protected activity" is illegal, but the illegal conduct exception to section 425.16 is narrow, and applies only if a "defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." (Flatley v. Mauro (2006) 39 Cal.4th 299, 320; Soukup, supra, 39 Cal.4th at pp. 286-287.) Plaintiff did not conclusively establish defendants' conduct was illegal as a matter of law, because defendants denied the information contained in the filings was false. Consequently, the falsity of the filings has not been conclusively established.

3. Probability of Prevailing on the Merits

Once a defendant establishes that the SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a reasonable probability of success on the merits. (Equilon, supra, 29 Cal.4th at p. 67.) "[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) "Legally sufficient" means that the cause of action would survive a demurrer. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1421.) The evidentiary showing must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.)

a. Defamation

In her complaint, plaintiff alleges she was falsely identified as Atlantic's CFO in the Statement of Information and IRS return,3 and she was caused "shame, mortification and hurt feelings" by the false statements because Atlantic "is under investigation for financial fraud." "Libel is a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ. Code, § 45.) "A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof." (Civ. Code, § 45a.) "`Special damages' are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel." (Civ. Code, § 48a, subd. 4(b).)

Identifying plaintiff as the CFO for Atlantic is not libelous on its face, because neither the Statement of Information nor the tax return, standing alone, exposes plaintiff to any ridicule or contempt without reference to extrinsic facts regarding Atlantic's alleged financial fraud. The documents can only be understood as defamatory if the reader presumes additional facts not apparent on the face of the documents. In order to demonstrate a probability of success on this claim, plaintiff was required to produce evidence of special damages. The only evidence of damages provided by plaintiff was that she was "stunned, extremely distraught and frightened about the potential repercussions" of being listed on Atlantic's filings. Mental distress and suffering are an element of general, not special damages. (See Civ. Code, § 48a, subd. 4(a), (b).) Since plaintiff did not produce any evidence of damages other than her mental suffering, she did not meet her burden, and the trial court's contrary finding must be reversed.

b. Intentional infliction of emotional distress

Plaintiff alleges in her complaint that she was "severely emotionally distressed" when she learned her name had been falsely listed on Atlantic's filings with the IRS and Secretary of State. A claim for intentional infliction of emotional distress requires plaintiff to prove outrageous conduct by defendant, intentional or reckless, causing emotional distress; severe emotional distress; and causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) In opposition to the anti-SLAPP motion, plaintiff's only evidence that she suffered "severe" emotional distress was that she was "stunned, extremely distraught and frightened about the potential repercussions" of being listed on Atlantic's filings. Although emotional distress may consist of "`fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry' [citation] . . ., to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376 (Wong).) There is a high bar for what constitutes severe distress. The distress must be of such a substantial or enduring quality that no reasonable person in civilized society should be expected to endure it. The court determines whether the evidence supports a finding of severe emotional distress, whereas the jury determines "`whether, on the evidence, it has in fact existed.' [Citation.]" (Ibid.)

In Wong, the court determined that the plaintiff had not made a sufficient showing in opposition to defendant's anti-SLAPP motion, where the complaint alleged plaintiff suffered "`severe emotional damage'" as the result of defendant's negative and false Yelp review of her professional services, and the declaration in opposition to the motion recited only that defendant's conduct "`was very emotionally upsetting to me, and has caused me to lose sleep, have stomach upset and generalized anxiety.'" (Wong, supra, 189 Cal.App.4th at pp. 1376-1377.) This case is similar, as plaintiff offered no evidence of severe or lasting distress of such a nature that no reasonable person should be expected to endure it. Atlantic corrected its subsequent filings to exclude plaintiff's name, so plaintiff's distress could not have endured for long. (Ibid. [emotional distress could not be lasting where negative Yelp posting was later deleted].) Plaintiff offered no evidence of the quality and duration of her distress, or that her fear of "potential repercussions" (plaintiff's words) was based in fact. Plaintiff also offered no evidence that Atlantic actually engaged in any financial malfeasance as alleged in the complaint, and without such evidence, plaintiff's fear of potential damage to her reputation has no factual basis. Courts require that the emotional distress have some reasonable basis in fact. (See, e.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004 ["`distress must be reasonable and justified under the circumstances'"].) Because the trial court found otherwise, we must reverse.

c. Common law misappropriation

A claim for common law misappropriation requires plaintiff to establish defendant's unauthorized use of the plaintiff's identity to defendant's advantage, by commercially or otherwise appropriating plaintiff's name, and resulting injury. (Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 55.) Atlantic contends plaintiff provided no evidence that the use of her name was to its advantage, equating "advantage" with a commercial benefit derived directly from the use of plaintiff's name. However, common law misappropriation does not require proof of a direct commercial benefit derived from the use of a plaintiff's name. The evidence before the trial court clearly established that Atlantic used plaintiff's name, without her consent, on its necessary filings with the state and IRS. It does not matter, as Atlantic suggests, that some other name could have been used in the filings, or whether plaintiff's name had "intrinsic" value to defendant. As the trial court noted, plaintiff's name was used to Atlantic's advantage because "[s]ubmitting the forms with the required information enabled Atlantic Recovery to continue doing business without scrutiny for noncompliance."

Atlantic acknowledges that no California court has held there must be a direct connection between the commercial benefit and the use of plaintiff's name for a common law misappropriation claim, but Atlantic asks us to rely on federal authorities to impose such a requirement. (See Newcombe v. Adolf Coors Co. (9th Cir. 1998) 157 F.3d 686, 693 [no direct benefit to the defendant magazine from use of Newcombe's likeness in a beer advertisement because the payment the magazine received for the advertising space was unrelated to the contents of the ad].) We decline to rewrite the common law of misappropriation, which has evolved from the right to privacy. Common law misappropriation is not concerned with what the appropriator received (e.g., some direct benefit from the misappropriation), but rather with what the injured party lost — the freedom from interference. (See Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 416.)

Similarly unpersuasive is Atlantic's claim that plaintiff failed to come forward with sufficient evidence of damages. The invasion of her privacy interest in the use of her name is sufficient to support damages, and as defendant acknowledges, hurt feelings are compensable. (Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 542-544.) It is enough that plaintiff produced evidence that her privacy interests were interfered with, causing her distress. The high threshold for claims of intentional infliction of emotional distress (at pp. 7-9, ante) has no application to this claim.

DISPOSITION

The order is affirmed in part and reversed in part. The order denying the anti-SLAPP motion is affirmed as to the claim of misappropriation. The order denying the anti-SLAPP motion is reversed as to the claims of defamation and intentional infliction of emotional distress. Upon motion seasonably made, the trial court is directed to determine whether defendant is entitled to an award of attorneys' fees and the reasonable amount of any award. The parties shall bear their own costs on appeal.

BIGELOW, P. J. and FLIER, J., concurs.