Opinion
F039554. F039926. F040071.
7-23-2003
AIRBORNE EXPRESS, INC., Plaintiff and Appellant, v. TERENCE MOORE, Defendant and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, David R. McNamara, Todd W. Baxter; Thelen, Reid & Priest, Wynne S. Carvill and Ronald F. Lopez for Plaintiff and Appellant. Dowling, Aaron & Keeler, Inc., Douglas T. Sloan and Lynne Thaxter Brown for Defendant and Appellant.
This is an appeal from an order granting a special motion to strike the complaint of appellant Airborne Express, Inc. (Airborne) pursuant to Code of Civil Procedure section 425.16, the so-called anti-SLAPP provision. An order granting or denying such a motion is appealable. (§ 425.16, subd. (j).) We will reverse the trial courts order in part, as we will discuss.
Further statutory references are to the Code of Civil Procedure unless otherwise noted.
A SLAPP is a "strategic lawsuit against public participation." (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, and fn. 1.) Section 425.16, subdivision (a) provides: "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly."
Facts and Procedural History
Airborne offers express delivery service; ground delivery is provided by employee-drivers and independent contractors. The latter, according to the record before us, account for about 60 percent of Airbornes ground services capacity.
Defendant Terence Moore was a friend of one such independent contractor. Moore became frustrated with Airbornes treatment of his friend and its treatment of its independent contractors generally. Adopting the nom de guerre "Paladin," Moore took to the internet and, armed only with a keyboard, sought to bring justice to this particular corner of the business world. (His screen name was "paladinrodentcontrol.")
In homage to the old television show starring Richard Boone (a wandering "good guy" whose motto was reflected in the title of the show: "Have Gun, Will Travel" (see Marschall, The History of Television (1986) at p. 74).)
Moores approach changed over the period of his greatest activity, beginning in February of 2001. As relevant here, Moore began posting messages on an internet message board dedicated to discussion of topics related to Airborne. (Moore asserts that Yahoo! maintains this and similar message boards for all publicly traded corporations. Many of the messages in our record were posted as replies to other messages that are not in the record; as a result, we are left with messages that begin rather obscurely at the midpoint of an ongoing "conversation.") Moores first message, posted February 19, 2001, was brief: "If you think ABF [the stock market symbol for Airborne] has a future go talk to their contract haulers. Due to the incompetent upper management ABF is now firing mid level managers and asking their contract haulers to take a 5 to 6% cut in their contract fees. In addition they are being asked to deliver more pkgs at reduced rates. The rebellion is beginning. Please make sure all contract haulers get this message. More to follow."
Over the next two months, Moore posted at least 40 messages on the ABF message board. Moore held himself out as an independent contractor about to file for bankruptcy if Airborne did not change its contractor policies. He proposed that the "rebellion" take the form of an organized work-stoppage: "The plan is simple — March 15 or there abouts we have a sick day. In other words we/our employees dont [sic] show up for work one day only." He also proposed forming a "union" of independent contractors and collectively refusing to bid on new contracts as service regions became available.
Moores proposals apparently generated negative responses. By March 1, 2001, he wrote that he "would like to drop all ideas about the unionizing I first talked about." He advocated instead that the contractors "drop hints" to Airborne that they would be exercising the 60-day-notice cancellation provisions in the contract. On March 5, 2001, Moore announced he would terminate his contract with Airborne without prior notice and he urged the other independent contractors to "refuse to bid on my routes." On March 7, 2001, Moore posted advice to "see a BK [bankruptcy] attorney [and] tell [Airborne] to stick it. Walk off the job with no notice and see what happens."
In a posting dated March 10, 2001, Moore acknowledged that the "March 15 sickout ... [doesnt] look like [its] really [going] to happen the way I want. Ill still try. Better idea is to really start the association for Airborne Independent Contractors. AAIC."
Throughout his postings, Moore provided an e-mail address for those who wished to communicate with him more privately. According to Moores message board posting for March 13, 2001, one such correspondent was "ABFs Attorney in Seattle accusing me of the following: 1) encouraging contractual misconduct 2) conspiring to commit federal antitrust violations 3) attempting to wrongfully manipulate ABF stock for personal gain." He thanked the attorney for "thinking Im smarter than I really am." He also began offering for sale a hat that would show independent contractors commitment to the idea of forming an association. The hats would say "Paladin Rodent Control" and show a squirrel holding a bullet in its teeth. In a later posting that same day, Moore described in detail his "gun of choice" for rodent control, adding: "Blows the squirrels & rock chucks all to hell. Its a great way to relieve tension on the weekends, especially when you put names on them just before you squeeze the trigger. Now I wonder what the attorney can make of this."
Moore continued with postings stating his own intention to file for bankruptcy, urging other contractors to do so, and advocating the formation of the association of independent contractors. Soon, however, "what the attorney can make of this" was a civil complaint filed March 22, 2001, in federal district court in Seattle against "John or Jane Doe, a/k/a paladinrodentcontrol." In that action, Airborne obtained Moores identity from Yahoo! and then dismissed the complaint.
Moore continued his postings, announcing incorporation of the Association of Airborne Independent Contractors (AAIC) and urging contractors to join. He promulgated "10 Commandments" for members and "5 Objectives" for the association. He also disclosed that he was not actually an independent contractor for Airborne but that he wanted to continue to lead the AAIC until replaced by a vote of the members. He disclosed he was an insurance agent, that he wanted to sell insurance to the independent contractors, and that he wanted to be elected to the Airborne board of directors.
Alarmed after Moore posted a message apparently expressing support for an independent contractor who fired gunshots in an Airborne shipping office on April 10, 2001, Airborne obtained a temporary restraining order prohibiting Moore from contacting or threatening its employees. The restraining order was dissolved at a hearing at which a preliminary injunction also was denied. During this same time, Yahoo! apparently banned "paladinrodentcontrol" from posting messages on the ABF message board.
Moores message, posted on April 10, 2001 under the screen name "arodentkiller," was a reply to an earlier posting of a news account of the shooting. Moores message stated: "This is really good news, one more step closer to the magic Q, glad no one was killed. The Rodent."
Banned from the message board, Moore changed his screen name to "abf_loves_the_aaic." He posted a message stating he had no violent intent toward anyone, just a "weird sense of humor [that] has gotten me in trouble in the past [and] has gotten [me] in trouble again." He stated that the goal of the AAIC was, in essence, to cause Airborne to treat independent contractors fairly so that the company could be strong and competitive with other carriers. In further postings, Moore talked about creating a dues structure for AAIC and about moving the discussion from the message board to his e-mail service in anticipation of further legal action by Airborne.
Under a different screen name ("rodents_hate_paladin"), Moore began posting accusations that Airborne was engaged in "racketeering": he cited supposed deficiencies in Airbornes computer system that required intervention by a local manager if an independent contractor were to be paid correctly; he cited the existence of financial incentives of such managers not to intervene; he said upper management knew about this situation and allowed it to continue. Moore urged independent contractors to print the posting and take it to their local managers. If a local manager "turned himself in" to AAIC, Moore said, "Ill try to help him stay out of jail."
The next day, May 8, 2001, Airborne filed the present action, seeking damages and injunctive relief. The complaint focused exclusively on Moores internet postings.
Once again, Moores postings began to change. Now Moore requested information from the contractors that he could turn over to "the SEC" and "federal prosecutors" for prosecution of Airbornes "racketeering." Moores postings became almost exclusively reiterations of his racketeering charges (along with calls for "jail time" for Airbornes top officials) as he played cat and mouse with Yahoo!, which banned him from posting messages under (by Moores count) 17 different screen names.
Court proceedings continued and discovery was initiated. On July 6, 2001, Moore filed his special motion to strike pursuant to section 425.16. Two days before the August 10, 2001, hearing on the motion to strike, Airborne filed a notice of motion to amend its complaint; the notice was not accompanied by points and authorities nor by the proposed amended complaint.
The court granted the motion to strike on August 20, 2001. Two days later, Airborne filed its points and authorities and proposed amended complaint. After the court entered judgment on the order striking the complaint, Airborne filed a motion for new trial. The court denied that motion on November 3, 2001, and Airborne filed a timely notice of appeal from the judgment. Subsequently, the court awarded Moore attorney fees on the special motion to strike ( § 425.16, subd. (c)), disallowing, however, certain claimed fees and costs. Moore filed a cross-appeal as to those reductions and Airborne filed a notice of appeal from the amended judgment incorporating the fees award. We consolidated the three appeals.
Discussion
I. The Statutory Context of the Present Dispute
Section 425.16 seeks to provide an expeditious mechanism to resolve frivolous and unfounded lawsuits that otherwise might chill the exercise of the constitutional rights of free speech and to petition for redress of grievances. (See § 425.16, subd. (a).) "The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." (Ibid .)
In the decade since enactment of section 425.16 (see Stats. 1992, ch. 726, § 2), the so-called anti-SLAPP motion — denominated by the statute as a "special motion to strike" a cause of action (§ 425.16, subd. (b)(1)) — has become an increasingly important tool for defendants seeking to terminate proceedings prior to trial. Although similar in many ways to a motion for summary judgment as a vehicle to obtain early resolution of an action (see College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719-720, 882 P.2d 894), the special motion to strike proceeding differs in an important way: "[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorneys fees to a plaintiff prevailing on the motion ...." ( § 425.16, subd. (c).)
The anti-SLAPP statute clearly distinguishes between actions arising in connection with governmental proceedings and other controversies. Section 425.16, subdivision (b)(1) establishes, in general terms, that a "cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech ... 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." Subdivision (e) then provides a definition for "act in furtherance of a persons right of petition or free speech for the governmental and nongovernmental arenas.
In the governmental arena, actions entitled to the anti-SLAPP procedural protections "include[] (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law ...." ( § 425.16, subd. (e).) Thus, definitionally, governmental proceedings and the issues considered therein are "public issues." (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116-1117, 969 P.2d 564.)
In the nongovernmental arena, the "public-ness" of the matter must be established as a precondition to the granting of the anti-SLAPP motion. (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1117.) As stated in the statute, actions entitled to the anti-SLAPP procedural protections "include[] ... (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest [and] (4) ... any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." ( § 425.16, subd. (e), italics added.)
The foregoing definitions establish only the preconditions to the availability of the special motion to strike. Those definitions do not immunize conduct that is otherwise actionable: even if the "public-ness" requirement is satisfied, the special motion must be denied if "there is a probability that the plaintiff will prevail on the claim" under the substantive law. (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1122.) Similarly, "the statute does not bar a plaintiff from litigating an action that arises out of the defendants free speech or petitioning [citation]; it subjects to potential dismissal only those actions in which the plaintiff cannot state[] and substantiate[] a legally sufficient claim." (Navellier v. Sletten, supra, 29 Cal.4th at p. 93.)
II. The SLAPP Defendants Initial Burden of Proof
The Supreme Court has stated that a courts task in ruling on an anti-SLAPP motion to strike involves two steps: "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech ... in connection with a public issue ...." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing is made, the court "then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Ibid.)
We discuss initially Airbornes claim that Moore failed to establish that the actions for which he was sued were in furtherance of his right of free speech.
The "Valid Exercise" Claim.
Airborne contends Moore was not entitled to prevail on his anti-SLAPP motion because section 425.16 protects only, in Airbornes phrase, "the valid exercise of constitutional rights of free speech and petition."
This argument was expressly rejected in Navellier v. Sletten, supra, 29 Cal.4th at page 94: "That the Legislature expressed a concern in the statutes preamble with lawsuits that chill valid exercise of First Amendment rights does not mean that a court may read a separate proof-of-validity requirement into the operative sections of the statute. [Citations.] Rather, any claimed illegitimacy of the defendants acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiffs [secondary] burden to provide a prima facie showing of the merits of the plaintiffs case. [Citation.] Plaintiffs argument confuses the threshold question of whether the SLAPP statute [potentially] applies with the question whether [an opposing plaintiff] has established a probability of success on the merits. [Citation.]" (Bracketed modifications of text by Supreme Court, except notation of omission of citations.)
Implicitly acknowledging the rejection of its opening-brief argument in the Supreme Courts subsequent Navellier opinion, Airborne recasts its argument in its reply brief by contending its complaint against Moore did not "arise from" Moores acts in furtherance of his free speech rights. This claim is frivolous. With the single and isolated exception of a claimed theft of proprietary information, which was not alleged in the complaint, all of Moores activity was purely speech. His actions may have been tortious, but they clearly were speech, and the causes of action alleged in the complaint clearly arose from that speech. In claiming that its causes of action arose not from Moores "free speech" but from his "tortious speech," Airborne merely continues to confuse the merits of its case with the applicability of the anti-SLAPP statute. (See Navellier v. Sletten, supra, 29 Cal.4th at p. 94.)
The "Public Forum" Claim.
Airborne next asserts a rather obscure contention that Moores "internet postings themselves fail to meet the requirement of the valid exercise of free speech." Noting that Yahoo! repeatedly removed Moores postings from the message board because the postings purportedly breached the "terms of service" agreed to by all persons posting on the message board, Airborne contends: "One simply cannot claim free speech rights by openly breaching a contract regarding services."
Airborne cites no authority for the proposition that free speech may only occur in a public forum. Clause (3) of section 425.16, subdivision (e) provides that protected speech may occur "in a place open to the public or a public forum" in connection with an issue of public interest. Even if we were to agree that the loose restrictions imposed by terms of service rendered the message boards not a "public forum," nevertheless those boards clearly are "open to the public."
We grant Moores July 19, 2002, motion for judicial notice.
Further, clause (4) of section 425.16, subdivision (e) does not contain a public forum requirement of any kind and appears to provide protection for purely private speech, so long as the other statutory requirements are met. (See Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1410 [SLAPP suit arose from letter to manager of condominium development].)
The "Public Interest" Claim.
In contrast to the "valid speech" and "public forum" arguments advanced by Airborne, the language of section 425.16 expressly supports Airbornes claim that Moore had to show his actions were taken in connection with a "public issue" or an "issue of public interest." (See § 425.16, subd. (e)(3)-(4).) The trial court concluded that Moore had established that his postings did address issues of public interest. Airborne contends "California case law makes it clear that when a defendant is advancing a purely private interest as opposed to a public interest, the action does not fall within the gambit [sic] of Section 425.16(e). (Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1602.)"
Airbornes reply brief informs us that Briggs v. Eden Council for Hope and Opportunity, supra, 19 Cal. 4th 1106, "disapproved Ericsson on other grounds, [but] it was not disapproved on the issue of advancing a purely private interest as opposed to a public interest not falling within the protections of Section 425.16(e)." (Italics in original.)
This is an incorrect statement of the Supreme Courts treatment of Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591 (Ericsson). In Navellier v. Sletten, supra, 29 Cal.4th at pages 91-93, the court extensively discussed and impliedly disapproved Ericsson on the point for which Airborne cites the case: conduct undertaken purely to fulfill the actors obligations under a contract still can be protected under section 425.16 if the conduct is otherwise within the terms of the statute. The court cited Ericsson as establishing a "false dichotomy between actions that target the formation or performance of contractual obligations and those that target the exercise of the right of free speech. (Ericsson, supra, 49 Cal.App.4th at p. 1602.) A given action, or cause of action, may indeed target both." (Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)
In the present case, even if Moores motivation were entirely to sell insurance to Airbornes independent contractors, it is true nevertheless that the issues he presented in his postings were issues of public interest: Claims, even if untrue, that the management of a major national corporation systematically cheats its vendors and violates federal law obviously concern a matter of public interest. Calls for collective action by the independent contractors to rectify the claimed abuses, even if advocating action that would be a violation of the antitrust laws, nevertheless is, in this case, "speech in connection with a public issue." ( § 425.16, subd. (e)(4).)
We grant Airbornes March 20, 2003, motion for judicial notice of portions of the record in a superior court case entitled Sequoia Insurance Company v. Terence Moore et al., Super. Ct. Fresno County, No. 01 CE CG 02131. Because of our resolution of the merits of Airbornes argument, we have no occasion to consider whether the judgment in the Sequoia Insurance case has any res judicata value in an appeal from a judgment preceding that judgment by over a year. The judgment in the Sequoia Insurance case determined that Moores activities were primarily business motivated and, therefore, were excluded from coverage under his homeowners insurance. As noted in the text, however, the Supreme Court has determined that the public nature of the speech, rather than the motivation of the speaker, determines the initial applicability of section 425.16. (See Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)
The postings in this case did not concern merely a private dispute between Moore and Airborne. (See Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 [unions publication of a supervisors abuse of power concerned only a private dispute].) Instead, if true, Moores allegations were of broad public interest and his advocacy of a bargaining association of otherwise-competing independent contractors, concerned a matter of important public policy. Accordingly, we conclude Airbornes action against Moore presumptively was subject to a section 425.16 motion to strike.
III. The Plaintiffs Burden of Proof
A. General Standard.
We now turn to the question whether Airborne overcame this presumption, that is, whether it established that it had a "probability of prevailing on the claims" in its complaint. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) "Probability of prevailing," as used in section 425.16, is a term of art. It does not mean that the plaintiff must establish it is more likely than not it will prevail on the merits. Instead, it means only that the plaintiff "has stated and substantiated a legally sufficient claim." (Equilon at p. 63.) "Put another way, the 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." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
"In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821, italics in original.) Conversely, "probable success" is established by demonstrating through "competent evidence" that a legally sufficient claim can be sustained. (Ibid.) The requirement of "competent evidence" is satisfied by relevant, admissible evidence submitted through sworn declarations. (See College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at 719-720 [discussing similar requirements of Code Civ. Proc., § 425.13, subd. (a)].)
B. The "Intentional Interference" Claims.
We agree with the trial court that Airborne has failed to establish it probably will prevail on its causes of action for intentional interference with contractual relations and with prospective economic advantage (hereafter, the intentional interference torts). As the trial court concluded, Airborne has not pled and proved cognizable injury to establish these causes of action.
We need not belabor the preliminary elements necessary to prevail on the intentional interference torts, nor the differences between the two torts. (See generally 5 Witkin, Summary of Cal. Law (9th ed. 1987 & 2002 supp.) Torts, §§ 643 et seq. & 652 et seq.) Suffice it to say that both of the intentional interference torts require the plaintiff to plead and prove damages. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126, 270 Cal. Rptr. 1, 791 P.2d 587; Lowell v. Mothers Cake & Cookie Co. (1978) 79 Cal. App. 3d 13, 19, 144 Cal. Rptr. 664.) Airborne has failed to do so.
In its second cause of action, interference with prospective economic advantage, Airborne has not alleged any cognizable injury whatsoever. It simply has alleged that Moore "has interfered with [Airbornes] prospective economic advantage." There is no allegation that this interference actually caused economic injury to Airborne.
While Airborne has offered evidence (some of which was objected to as hearsay) that it did not receive anticipated bids on contracts from several persons after Moore contacted those persons, it nevertheless failed to plead any such interference. (See Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at p. 1130.) In addition, Airborne has not offered proof that it was injured by the failure to receive the bids in question, by alleging, for example, that there were no other qualified bidders and Airborne was unable to serve the designated territory without an independent contractor. Accordingly, it is not necessary to parse Airbornes evidence to isolate any portions that might actually constitute admissible evidence. (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654-655.) Even with the inadmissible portions, there is no proof of cognizable injury. (See College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 719, fn. 5 [suggesting plaintiff be allowed to amend where the complaint "viewed in isolation, makes legally insufficient allegations, but the missing elements can be deduced from supporting materials ...."].)
In its first cause of action, interference with contractual relations, Airborne has alleged damages, but the damages are not cognizable in this kind of action. Airborne has alleged: "As a result of the foregoing, plaintiff has been required to retain the services of counsel to initiate this action and prevent further actions more harmful to plaintiff. Plaintiff seeks to recover any and all costs associated with such action, including reasonable attorneys fees."
Airborne is not entitled to recover attorney fees incurred in connection with the present action as a part of its damages claim. Permitting this would fundamentally violate the firmly established "American rule" that a party is not entitled to recover attorney fees from its opponent in the absence of a contract or statute providing for such fees. (Olson v. Arnett (1980) 113 Cal. App. 3d 59, 67-68, 169 Cal. Rptr. 629.)
Even if we go beyond the allegations of the complaint, and if we indulge every possible inference of causation favorable to Airborne, the most that Airborne has established is that its existing employees, as part of their ordinary job duties, were required to devote attention to Moore in various ways. There is no showing that this harmed Airborne in any way. (See Intel Corp. v. Hamidi (2003) 30 Cal. 4th 1342, 1357.)
Airbornes proof claims that an independent contractor orally agreed to reduce his rate of payment under the contract and then declined to sign a written amendment of the contract after speaking with Moore. The proof claims that Airborne received far more notices from independent contractors exercising their right to terminate the contract on 60 days notice than it had received prior to Moores activities. By contrast, however, Airbornes complaint alleges that Moores wrongful actions involved encouraging the independent contractors "to breach their contractual relationships" by staging boycotts and "discontinuing services without providing the advance notice required by their contracts." Airbornes evidence, then, does not establish proof of injury from the wrongs alleged in the complaint, even if it may be said to establish injury from something Moore did.
The broad construction of section 425.16 enjoined upon us by the Legislature ( § 425.16, subd. (a)) requires that we address the complaint in the terms upon which a plaintiff has chosen to sue a defendant, not that a defendant be forced to defend against other allegations of tortious conduct or injury to a plaintiff. (See Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) Amendment of the cause of action to cure the omission of an allegation of cognizable injury would require Airborne, in essence, to plead a new cause of action based on different facts than alleged in the complaint.
Finally, in both causes of action, Airborne has alleged that "unless enjoined [from doing so, Moore] will continue to engage in the above-described unlawful practices thereby causing irreparable injury" to Airborne. On appeal, Airborne contends that, even if is has not pled and proved damages, it "has the remedy of injunctive relief available arising out of interference allegations. California courts have recognized the availability of injunctive relief for common law torts of unlawful interference. (Diaz v. Kay-Dix Ranch (1970) 9 Cal. App. 3d 588, 591-592, 88 Cal. Rptr. 443.)" Notwithstanding the general availability of injunctive relief as a permissible remedy for the intentional interference torts, Airborne does not attempt to demonstrate that the present case, specifically, is an appropriate one for such relief.
"Injunctive relief is available to restrain unjustified interference with contractual relations when damages would not afford an adequate remedy." (Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at p. 1130, fn. 9.) Airbornes proof does not attempt to establish the inadequacy of a monetary remedy, an omission that is particularly striking in light of Moores dearth of success in attaining any of his goals involving organization of the independent contractors to collectively assert grievances against Airborne. Further, since Airborne has failed to allege any cognizable economic injury arising from Moores activity, there is nothing to "remedy," whether by means of monetary damages or injunction.
In sum, we conclude Airborne has failed to establish a probability of success on its first and second causes of action.
C The Unfair Business Practices Cause of Action.
We reach a different conclusion with respect to Airbornes third cause of action, for reasons that follow.
There is a public interest in prohibiting unfair business practices. This public interest is reflected in Business and Professions Code section 17200 (hereafter section 17200), which permits the courts, as relevant here, to order injunctive and restitutionary relief from "any unlawful, unfair or fraudulent business act or practice." "Any member of the public can bring suit under the act to enjoin a business from engaging in unfair competition," without alleging or proving personal harm arising from the unfair business practice. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150.)
The trial court did not separately evaluate Airbornes section 17200 cause of action in its statement of decision. Instead, the court concluded that with respect to all three causes of action Airborne "has failed to provide significant substantive evidence that any of Moores alleged activities to date, annoying as they may be to Airbornes management, have caused either injury or actual damages" to Airborne . As stated above, however, no such "injury or actual damages" is required to prevail on a section 17200 cause of action.
Moore contends his activity is not subject to section 17200 because he has not engaged in any "business acts or practices." We disagree. Moore has solicited other persons to join an organization (the AAIC) for a fee. The goal and purpose of this organization is to bring collective pressure to bear on Airborne to obtain better contracts for the organizations members. While section 17200 does not define "business acts or practices," Moore has suggested no construction of that term that would exclude what is, in effect, a trade organization or a consulting business.
The fact that the association is not yet profitable and does not have many members does not remove Moores attempts to establish the association as "business acts or practices." The purpose of section 17200 is "to provide a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition." (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173-174, 999 P.2d 706.) For these purposes, it is necessary to consider both Moores current actions and the fruit he hoped those actions would bear.
We agree with Airborne that in two particular respects it has demonstrated that it probably will prevail on the merits of its third cause of action. First, Moores acts of falsely holding himself out as an independent contractor of Airborne and recounting his fictional financial difficulties in performing his contract, for the purpose of recruiting members to his nascent organization, may constitute a fraudulent business practice. (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 648.) As Moore himself acknowledged, he intended these misrepresentations to give legitimacy to his organizational efforts that they otherwise would lack.
Second, Airborne has established a probability of prevailing on its claim that the Association of Airborne Independent Contractors would be an unlawful combination in restraint of competition. Airbornes evidence establishes, prima facie, that its independent contractors individually bid on — and therefore compete among each other for — service contracts. While a trade association that merely provided information to help bidders put together a realistic bid (Moore claims Airbornes bid package systematically understates the contractors potential costs of operation) might not unlawfully restrain competition, Moore proposed that his association would do far more and that its members, for example, would pledge not to bid against other members for service contracts.
Moore acknowledges that this latter sort of activity would be unlawful under the Cartwright Act (see Bus. & Prof. Code, § 16720) but for the "labor exemption" (Bus. & Prof. Code, § 16703) contained in the law. Moore relies on California Dental Assn. v. California Dental Hygienists Assn. (1990) 222 Cal. App. 3d 49, 271 Cal. Rptr. 410 for the proposition that concerted labor activity by independent contractors constitutes "nothing more or less than organizational and concerted activities of a sector of working people, for the classically legitimate labor objective of increasing the wages they are paid — the subject matter held exempt from the Cartwright Act." (Id . at p. 65.)
The evidence before the trial court sufficiently establishes, as a prima facie matter, that the independent contractors in the present case are significantly different from those involved in California Dental Assn. The dental hygienists in that case were individual workers who functioned much like part-time or piece-work employees of dentists. The California Dental Assn. court expressly distinguished such workers from the owners of businesses. Thus, the court quoted Marin County Bd. Of Realtors, Inc. v. Palsson (1976) 16 Cal.3d 920, 927, 130 Cal. Rptr. 1, 549 P.2d 833, as follows: "The relevant question, in every case, is whether the practice in question is meant to further the interest of tradesmen as employees in a collective bargaining context, or whether it is designed to advance their interests as entrepreneurs."
In the present case, the evidence submitted by Airborne, together with reasonable inferences from Moores postings on the message board, prima facie establishes that many of the independent contractors are individuals or corporations who employ significant numbers of drivers to perform the delivery services. Nothing in Moores proof shows this characterization of the contractors to be untrue. While the proof at a trial of the third cause of action might establish that the independent contractors are individuals who are the functional equivalent of employees of Airborne (thus entitling Moores activities to the protections of the labor exemption), the present state of the record establishes otherwise. The present record, standing alone, shows that the independent contractors are small businesses, not exempt from the strictures of the Cartwright Act.
We close this section of the discussion by noting the present record does not establish that Moore has engaged in defamation of Airborne or its top management. Truth is, of course, a defense to a defamation action, wholly apart from the various pleading requirements and distinctions concerning malice, opinion, hyperbole, and the like that comprise the law of defamation. (See generally 5 Witkin, Summary of Cal. Law, supra, Torts, § 477 et seq.) Our detailed examination of Airbornes proof in this case shows, rather surprisingly, a complete absence of any declarations or other proof to establish the falsity of Moores claims about Airbornes treatment of its independent contractors or, for that matter, top managements knowledge of the alleged practices. On this state of the record, we have no occasion to consider whether (and under what circumstances) defamation may constitute an unfair business practice.
Conclusion.
An order granting a special motion to strike pursuant to section 425.16 may be directed to a single cause of action while leaving other causes of action untouched. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.) We conclude in the present case that the trial court was correct in striking the first and second causes of action, the intentional tort counts. The judgment and the order striking the third cause of action must be reversed. For that reason, Airbornes claims concerning the denial of its new trial motion are moot: in due course, upon remand, Airborne may move to amend the complaint in accordance with ordinary standards. Not moot, however, are the issues concerning attorney fees, to which we now turn.
IV. The Appeal and Cross-Appeal Concerning Attorney Fees and Costs
Airborne contends the trial court erred in awarding attorney fees based on counsels billed hourly rate instead of the discounted hourly rate paid them by Moores insurance company. Moore contends the trial court abused its discretion in excluding from the fee award the costs and fees involved in attendance at depositions Airborne conducted in Ohio while the section 425.16 motion was pending.
Before we reach those issues, however, we must first determine the effect on the fee award of our disposition of the substantive merits of the appeal. We conclude that despite our reinstatement of the third cause of action, Moore still "prevailed" on the special motion to strike and is entitled to his attorney fees. (See § 425.16, subd. (c).)
We reach this conclusion based on the fact that dismissing the first and second causes of action as SLAPPs dramatically reduces Moores potential exposure in this lawsuit. Those causes of action sought an award of damages as well as broad injunctive relief. Under the third cause of action, by contrast, "the remedies provided are limited." (Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1150.) No damages remedy is available to Airborne in that cause of action, and any injunctive relief must be narrowly tailored to those actions that are unfair business acts or practices, as defined by section 17200.
Further, in looking at the inadequate pleading and proof for the first and second causes of action, we agree with the trial court that Airbornes action "appears to fit squarely within the ambit of Code of Civil Procedure section 425.16." The first and second causes of action clearly were designed for intimidation value alone. Consequently, an award of attorney fees furthers the legislative purposes embodied in section 425.16.
Airborne contends, without citation of authority, that the award of attorney fees is limited to the amount that Moores insurance company agreed to pay Moores attorneys to represent him. Airborne attempts to show that Moore did not pay, or agree to pay, the difference between that rate ($ 140 per hour) and the attorneys normal charges of $ 175 and $ 185 per hour for the two attorneys in question.
By contrast, settled California attorney fees law requires that the award be calculated initially using the "prevailing hourly rate in the community for comparable legal services." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095, 997 P.2d 511.) The record in the attorney fees proceeding sufficiently establishes that the hourly rates used by the court reflect the prevailing hourly rate in the community for comparable legal services. The trial court did not abuse its discretion in using $ 185 (Sherwood) and $ 175 (Brown) as the hourly rates in determining reasonable attorney fees pursuant to section 425.16, subdivision (c).
Similarly, we conclude the trial court did not abuse its discretion in denying to Moore costs and attorney fees for attendance at depositions conducted by Airborne in Ohio. The evidence established that the depositions were scheduled well prior to the filing of the motion and could have been stopped upon filing of the motion if Moore had desired to do so. (See § 425.16, subd. (g).) The court concluded the depositions were unrelated to the prosecution of the anti-SLAPP motion. Moore has not established that the court abused its discretion.
Disposition
The order granting the special motion to strike the first and second causes of action is affirmed. The order granting the special motion to strike the third cause of action is reversed; the judgment insofar as it dismisses the third cause of action is reversed. The order awarding attorney fees is affirmed. Moore is deemed the prevailing party on this appeal and the trial court shall award reasonable attorney fees to Moore upon remand. (See Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 108.)
We concur: HARRIS, J., CORNELL, J.