Opinion
A146370
07-28-2017
EMILY SEAL, Plaintiff and Appellant, v. GAYLE CUMMINGS ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. DR140611)
This is an appeal from an order granting a defense motion pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute, in a case alleging causes of action for intentional infliction of emotional distress and invasion of privacy. We shall reverse the order granting the motion.
Unless otherwise indicated, all statutory references below are to the Code of Civil Procedure.
" 'SLAPP is an acronym for "strategic lawsuit against public participation." ' [Citation.]" (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1526, fn. 2 (Jay).)
I. BACKGROUND
A. The First Lawsuit
In 2009, plaintiff Emily Seal, her mother Jennifer Dessel, and defendant Gayle Cummings together purchased a parcel of land containing a residence, located at 3950 Fieldbrook Road, Fieldbrook, California (the property), as an investment. In 2011, after disputes arose, Cummings filed suit against Dessel and Seal, among other things seeking quiet title establishing she had a 50 percent ownership interest in the property and seeking to partition the property (the first lawsuit). Defendant Bradford Floyd represented Cummings in the first lawsuit, and Seal and Dessel represented themselves.
We take judicial notice of this court's opinion in the first lawsuit, a related case, Cummings v. Dessel et al. (July 19, 2017, A144212) [nonpub. opn.]. (Evid. Code, § 452, subd. (d).) Our summary of the facts in this case includes some information taken from that opinion, which affirmed a judgment recognizing Cummings as the sole owner of the property following partition.
While the first lawsuit was pending, Seal lived on the property, with Cummings's consent. A dispute arose, however, about Cummings's right to inspect the property with associates. In May 2014, the trial court observed that the three women had "equal rights to possession" of the property and Cummings, therefore, had "[a right] to inspect the property from time-to-time" while Seal lived there. The trial court ordered the parties to develop an agreement preventing future conflicts on the subject. After the parties were unable to do so, Cummings applied to the court for an order setting a time for inspection. The trial court heard arguments from the parties on July 23, 2014. Then it ordered that "[Cummings], her attorney and experts (one realtor and one contractor) shall be allowed to inspect the property located at 3950 Fieldbrook Road, Fieldbrook, California, on Tuesday, July 29, 2014, from 4:30 p.m. to 6:30 p.m." Seal maintains the trial court set the inspection time to accommodate her schedule, after she advised that she wanted to be present, but had to work on July 29, and could not be home before 5:15 p.m.
On July 29, 2014, Floyd e-mailed Dessel several hours before the inspection was scheduled to commence, asking for a key to the residence, or that someone be available to open the door. Dessel was at home that morning, but maintained she did not notice the e-mail on her computer until the following day. Receiving no response, Floyd went to the property at the designated time, accompanied by Cummings and three other men. They found the front door of the residence locked, with neither Dessel nor Seal in attendance. Seal later submitted she had anticipated Cummings and her group would inspect the grounds and possibly the carport and septic system, but would wait for her to return from work to enter the residence.
Although Cummings and Floyd submit that Floyd sent this email to both Dessel and Seal, the e-mail appears to have included only one addressee outside Floyd's law firm, and began with Dessel's first name ("Jennifer") as the sole salutation.
Without telephoning Dessel or Seal, however, members of Cummings's group apparently used a crowbar and hammer to tear siding off the residence, opening a hole near the front door. One of the men then reached through, unlocking the deadbolt, and the entire group went inside. Seal had video surveillance cameras mounted and apparently visible on the exterior of the residence, and also had installed a home alarm system, which sounded shortly after the group entered the residence. Dessel watched the video feed from the cameras on her home computer, and Seal watched on her smartphone at work. The group reportedly remained inside the residence for only a short time after the alarm sounded. When the group came outside again, Floyd departed with one of the men, and Cummings remained behind with the other two men to speak with police officers, who had been summoned by calls from the alarm company, and from Dessel and Seal.
Seal attached photographs from the video footage to her complaint in this action. One photograph appears to show a member of Cummings's group looking directly into the camera, and Seal maintains each man in the group took turns doing the same.
The following month, Dessel and Seal applied to the trial court for an injunction, among other things, to bar Floyd or any of his agents from approaching the property, and also requested monetary sanctions. In a September 2014 order, the trial court denied their requests, finding Dessel's and Seal's allegations of " 'breaking and entering' " to be "without merit," because Cummings owned part of the property and, therefore, had a right to inspect it.
B. This lawsuit
On November 5, 2014, Seal filed this action against Floyd and Cummings, alleging causes of action for intentional infliction of emotional distress and invasion of privacy based on their conduct during the July 29, 2014 inspection. By breaking into the property's residence, without waiting for her to return from work or telephoning her first, Seal alleged, defendants and their cohorts improperly intruded into her personal space, walking into her home and viewing her intimate belongings, in a manner that she allegedly experienced as an assault, leaving her fearful and traumatized. Floyd and Cummings filed a special motion to strike Seal's complaint on December 4, 2014 pursuant to the anti-SLAPP law. After receiving opposition and reply briefs, and requesting and receiving supplemental briefing, on July 27, 2015, the trial court issued an order granting the motion to strike Seal's complaint. The court struck the complaint on September 17, 2015, granting judgment for defendants, and awarding them attorney's fees and costs. This timely appeal followed.
II. DISCUSSION
A. Legal Principles and Standard of Review
California enacted section 425.16 "to deter and prevent SLAPP suits." (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1414.) "SLAPPs are meritless lawsuits brought primarily to harass persons who have exercised their constitutionally protected rights of free speech and petition. [Citation.] The SLAPP statute sets forth a procedure designed to expeditiously resolve SLAPPs at an early stage of the litigation before litigation costs escalate. [Citations.]" (Public Employees' Retirement System v. Moody's Investors Service, Inc. (2014) 226 Cal.App.4th 643, 657, fn. 13.) The statute provides in relevant part: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
As the plain language indicates, the statute posits "a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.]" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) "The moving defendant's 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 under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.]" (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).) "If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]" (Navellier, supra, at p. 88.)
The first—"arising from protected activity"—requirement "is not always easily met. [Citations.]" (Equilon Enterprises, supra, 29 Cal.4th at pp. 66-67.) "[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been 'triggered' by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. [Citations.]" (Navellier, supra, 29 Cal.4th at p. 89.) " ' " 'If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.]' [Citation]." ' " (Collier v. Harris (2015) 240 Cal.App.4th 41, 50 (Collier).)
"The only means specified in section 425.16 by which a moving defendant can satisfy the requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)." (Equilon Enterprises, supra, 29 Cal.4th at p. 66.) Subdivision (e) defines an " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' [as] includ[ing]: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (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, (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, or (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).) Failure to meet this first arising-from-protected-activity prong "renders the anti-SLAPP statute inapplicable, thereby making unnecessary any determination under the second prong" about whether the plaintiff has established a probability of prevailing on his or her claim. (Public Employees' Retirement System v. Moody's Investors Service, Inc., supra, 226 Cal.App.4th at p. 658; see also Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1519 ["if the defendant does not meet its burden on the first [prong], the court should deny the [special] motion [to strike the complaint] and need not address the second [prong]"].)
"On appeal, we 'review an order granting an anti-SLAPP motion de novo, applying the same two-step procedure as the trial court. [Citation.]' [Citation.] In conducting our review, '[w]e 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.]" (Jay, supra, 218 Cal.App.4th at p. 1536.)
B. Analysis
Seal contends the order granting the special motion to strike her complaint and resulting judgment must be reversed because Cummings and Floyd did not meet their threshold obligation under the first prong of the anti-SLAPP statute by showing her complaint arose from protected activity, and she contends, in any event, she demonstrated a probability of prevailing on the merits. For the reasons discussed below, we agree Cummings and Floyd did not meet their threshold obligation under the statute. We, therefore, need not consider Seal's second argument.
Seal also contends the trial court's order and judgment must be reversed because the trial court "relied solely upon the 'litigation privilege' [Civ. Code, § 47]" as the basis for its decision. This is inaccurate. Although the trial court relied on Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen), which did discuss the litigation privilege, the trial court's citation was to another section of that decision, in which the Supreme Court preliminarily summarized key aspects of the anti-SLAPP statute. In any event, as our review here is de novo (see Jay, supra, 218 Cal.App.4th at p. 1536), "our analysis proceeds independently of the trial court's reasoning." (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1034, fn. 5.)
As noted, moving defendants may only satisfy the "arising from protected activity" requirement by demonstrating the plaintiff's claims are premised on acts falling within one or more of the four categories described in section 425.16, subdivision (e). (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) "These [four] categories define the scope of the anti-SLAPP statute." (Collier, supra, 240 Cal.App.4th at p. 51.) Three of the four categories define qualifying acts as "written or oral statement[s] or writing[s]." (§ 425.16, subds. (e)(1)-(e)(3).) The fourth "is a 'catch-all' " that "extends the protection of the anti-SLAPP statute beyond actual instances of free speech to 'all conduct in furtherance of the exercise of the right of [petition or] free speech in connection with a public issue.' [Citation.]" (Collier, supra, at p. 51, italics added.)
Although they do not say so directly, Cummings and Floyd appear to rely on the fourth, catch-all category to demonstrate that Seal's claims arose from protected activity. Cummings and Floyd do not contend—and the record here does not suggest—that any written or oral statements or writings provided the basis for Seal's complaint. Instead, Cummings and Floyd do not dispute—and our review of the record confirms—that Seal's claims were based on alleged conduct, specifically, on allegations that Cummings, Floyd, and their associates broke into the space where Seal was living, while Seal was not home, and then walked among her private possessions to conduct their inspection, allegedly invading her privacy and causing her emotional distress. All agree the inspection was authorized by order of the trial court in the first lawsuit, and the inspection allowed Cummings's expert witness in that case to appraise the value of the property for purposes of partition.
Cummings and Floyd argue that, because they were conducting a court-authorized inspection in connection with the partition litigation, their conduct is protected by the anti-SLAPP statute as "litigation activity." For this contention they rely primarily on Rusheen, supra, 37 Cal.4th 1048, which they characterize as holding that "a cause of action arising from defendant's litigation activity, including acts committed by attorneys during litigation, may appropriately be the subject of a special motion to strike." Rusheen does not so hold.
In Rusheen, one party (Rusheen) sued the opposing party's attorney. It was alleged the attorney had abused the court's process by securing a default judgment based on perjured declarations, and by levying on that judgment against Rusheen's property. (Rusheen, supra, 37 Cal.4th at pp. 1053-1054.) The attorney filed a special motion to strike, which the trial court granted. (Id. at p. 1054.) On review, the Supreme Court explained as a preliminary matter that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech . . . shall be subject to a special motion to strike . . . . [Citation.]" (Id. at p. 1056.) " 'Any act,' " the court observed, "includes communicative conduct such as the filing, funding, and prosecution of a civil action" and "qualifying acts committed by attorneys in representing clients in litigation. [Citations.]" (Ibid., italics added.) The court in Rusheen, however, did not analyze whether the attorney's acts were protected under the anti-SLAPP statute. Rather, the court examined only the second prong of the anti-SLAPP analysis—whether Rusheen could prevail on the merits against the attorney's claim that his actions were protected by the litigation privilege. (Id. at pp. 1055, 1057-1065; see, e.g., Rubin v. Green (1993) 4 Cal.4th 1187, 1193 ["communications with 'some relation' to judicial proceedings" are "absolutely immune from tort liability" by the litigation privilege].)
In Rusheen, it was not disputed that the attorney's actions in securing the judgment were protected by the litigation privilege. The narrow question posed was whether the act of levying on a judgment, although noncommunicative in nature, was nonetheless protected by the privilege. (Rusheen, supra, 37 Cal.4th at p. 1061, see, e.g., Rubin v. Green, supra, 4 Cal.4th at p. 1196 [the privilege applies if the injury resulted from an act that was "communicative in [its] essential nature"].) The court concluded it was so protected, because the gravamen of the cause of action was not the act of levying, but rather the procurement of the judgment using allegedly perjured declarations. (Rusheen, supra, at p. 1062.) The court reasoned that the levy was merely a means to carry out the wrongfully procured judgment, and was therefore a "necessarily related noncommunicative act[]." (Ibid.)
There are at least two reasons why Rusheen does not support Cummings and Floyd's argument. First, while Rusheen made clear that an attorney engaged in "qualifying acts" is protected under the anti-SLAPP statute, it did not broaden or change the nature of those qualifying acts. As relevant here—and as we discuss below—that statute provides that an act qualifies for protection if it is a written or oral statement made in a judicial proceeding, or, if it is conduct in furtherance of the exercise of the right of petition or speech "in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).) Rusheen did not alter the statutory definition of protected activity, and most certainly did not expand that protection to include any "acts committed by attorneys during litigation."
Second, the question before us is whether the allegedly wrongful act of forceful entry into Seal's residence was protected under the anti-SLAPP statute, not whether the act was protected by the litigation privilege. To be sure, there is some relationship and overlap between the litigation privilege and the anti-SLAPP statute, but the two are substantively different and serve different purposes. (See, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299, 320, 322-324 (Flatley) [the litigation privilege is a substantive rule of law that grants absolute immunity from tort liability for communications made in relation to judicial proceedings; the anti-SLAPP statute is a procedural device for screening out meritless claims].) Accordingly, an act may be protected by the litigation privilege but not protected under the anti-SLAPP statute.
As explained in Flatley, the litigation privilege covers some illegal conduct, such as perjury, in order to afford litigants the utmost freedom of access to the courts without fear of being harassed by derivative tort actions. (Flatley, supra, 39 Cal.4th at pp. 321-322.) But this rationale is not transferable to the anti-SLAPP context because the latter promotes the different goal of protecting those who exercise their constitutional rights of free speech from abuse of the judicial process. (Id. at p. 324.) Moreover, the anti-SLAPP statute protects the valid exercise of the constitutional rights of speech and petitioning, and the constitution does not protect perjury. (Ibid.)
In any event, even if we were to apply Rusheen's reasoning, we do not think it would support the conclusion anti-SLAPP protections applied to Cummings's and Floyd's alleged conduct, because the conduct was not "necessarily related" to a privileged communication. (Rusheen, supra, 37 Cal.4th at p. 1062, italics added.) In Rusheen, the crux of the claim was the procurement of a judgment by means of allegedly false declarations; because the declarations were communicative, and therefore privileged, any subsequent levying act merely flowed from the wrongfully procured judgment. (Ibid.) Here, in contrast, the crux of Seal's claim is the manner in which respondents undertook a court-authorized inspection. Seal did not allege the inspection order was procured by deceptive means, or by an abuse of the court's process, nor does the complaint contain any allegation of wrongdoing arising out of Cummings and Floyd's communicative acts in the course of the litigation. Therefore, even under the Rusheen rationale, the forceful entry into Seal's dwelling would not be protected petitioning or litigation activity.
We reach the same result applying the plain language of the statute. As has been described, Seal's lawsuit arises out of Cummings and Floyd's conduct, and not out of any communicative acts undertaken by them in this or the prior action. The question, then, is whether that conduct qualifies as a protected act under the provisions of section 425.16, subdivision (e), which specifies that conduct in furtherance of speech or petitioning rights is protected if it is "in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).)
Citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 (Briggs), Cummings and Floyd assert a moving defendant is not obligated to show "the underlying litigated matter is of public interest." The assertion represents a fundamental misunderstanding of Briggs. The court there interpreted clauses (1) and (2) of section 425.16, subdivision (e) as applying a "bright-line 'official proceeding' test." (Briggs, supra, 19 Cal.4th at p. 1123.) Under the language of those provisions, the court concluded, "a defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding need not separately demonstrate that the statement concerned an issue of public significance." (Ibid., italics added and omitted.) In contrast, the court observed, "[c]lauses (3) and (4) of section 425.16, subdivision (e), concerning statements made in public fora and 'other conduct' implicating speech or petition rights, include an express 'issue of public interest' limitation," indicating the Legislature intended different requirements to apply to anti-SLAPP motions brought under those clauses. (Briggs, supra, at p. 1117, italics added.) Courts subsequently have agreed that a cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) only "if the plaintiff's claims are predicated on conduct that is . . . connect[ed] with a public issue or issue of public interest.' [Citations.]" (Collier, supra, 240 Cal.App.4th at p. 51.) Because they do not assert the underlying conduct here was connected with a public issue, and the record reveals no suggestion there was such a connection, Cummings and Floyd did not meet their threshold burden. The trial court, therefore, erred in granting their special motion to strike the complaint.
We reject Cummings and Floyd's argument that the trial court's ruling should be affirmed because Seal provided an inadequate record on appeal. Although undeveloped, the argument appears to rely on the fact that Seal did not provide a reporter's transcript of the July 23, 2014 hearing, confirming her assertion she gave notice she could not be at the July 29 inspection before 5:15 p.m. Cummings and Floyd do not identify any other specific omission in the record, which does include a clerk's transcript and reporters' transcripts of other proceedings in the trial court. Notably, Cummings and Floyd provide no declaration themselves disputing Seal's account or claiming it was untrue. Regardless, however, the matter is irrelevant as the details of the parties' knowledge about Seal's intent or ability to attend the inspection are unnecessary to a determination of whether Cummings and Floyd's conduct during the inspection furthered a protected activity in connection with a public issue for purposes of the anti-SLAPP statute. (§ 425.16, subd. (e)(4).)
III. DISPOSITION
The order is reversed and remanded for further proceedings consistent with this opinion. Seal shall recover her costs on appeal.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.