Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. MC015320, Alan S. Rosenfield, Judge.
Mike Pincher for Plaintiffs and Appellants.
The Law Office of Jude G. Aoun and Jude G. Aoun for Defendants and Respondents.
KRIEGLER, J.
Plaintiffs and appellants AV Light Foundation (AVLF) and Ellis Valentine timely appeal from the trial court’s order granting defendant and appellant San Juanita Garibay’s Code of Civil Procedure section 416.25 special motion to strike (“the anti-SLAPP motion”) three causes of action from plaintiffs’ third amended complaint, along with the order awarding attorney fees to Garibay as the prevailing party in the anti-SLAPP motion. Plaintiffs contend the court erred in granting the motion because the stricken claims did not arise out of protected free-speech activity and, alternatively, the evidence before the trial court demonstrated those claims had at least minimal merit. Regarding the award of attorney fees, plaintiffs argue the award amount was unjustifiably high and, in any event, the trial court erroneously ruled in Garibay’s favor. Plaintiffs also appeal from the denial of their new trial motion which sought reconsideration of the ruling on the anti-SLAPP motion.
All further statutory references are to the Civil Code unless indicated otherwise. “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order granting or denying a special motion to strike under section 425.16 is appeal able. (§ 904.1, sub d. (a)(13).)
We find all of plaintiffs’ claims unpersuasive. As explained below, the three stricken claims arose out of protected activity, as they were based on statements contained in an open letter sent to a newspaper and a telephone call to a school superintendent, both expressing concern over matters of public interest, including whether Valentine’s criminal history should disqualify him from working with children. Having demonstrated those claims were properly subject to the anti-SLAPP statute, it was plaintiffs’ burden to present evidence of a probability of prevailing on the merits. Plaintiffs, however, presented no evidence to warrant a reasonable inference that Garibay was responsible for publishing the letter or instigating the telephone call—while Garibay testified that she had nothing to do with the publishing of either. We do not reach the merits of plaintiffs’ challenges to the fee award and the denial of the new trial motion. Rather, we summarily affirm based on plaintiffs’ failure to designate an adequate record to review those claims.
Valentine also requests that we recommend that the Governor grant him a pardon for his felony conviction. As that issue is not properly before us, we decline the request.
PROCEDURAL AND FACTUAL BACKGROUND
In the underlying lawsuit, Valentine (a former Major League Baseball player) and AVLF (the nonprofit corporation Valentine founded and directs) alleged that Garibay was retained to write grant proposals to enable AVLF to purchase real property known as Roper Ranch so that AVLF could expand its primary charitable goal of providing counseling, education, and training to at-risk youths. Instead, Garibay betrayed Valentine’s confidences and secretly purchased the property for herself, ruining Valentine’s dream for AVLF and arrogating the property’s income-generating potential to herself. That betrayal of trust caused Valentine to suffer a heart attack.
Plaintiffs’ third amended complaint, the operative pleading at the time of the anti-SLAPP motion, included causes of action for fraud, along with breaches of contract, confidential relationship, and fiduciary duty. Garibay’s anti-SLAPP motion challenged the six, seventh, and eighth causes of action for intentional infliction of emotional distress, defamation, and invasion of privacy. In the emotional distress claim, Valentine alleged Garibay intentionally caused him to suffer severe emotional distress by secretly buying the Roper Ranch and implementing for herself some of the business ideas he had disclosed to her in confidence. She allegedly knew that obtaining the Roper Ranch for AVLF would be “a dream come true” for Valentine, but she nevertheless betrayed his trust for her own personal gain.
As examples of Garibay’s campaign to “target Valentine personally for harm by attempting to sabotage [AVLF],” plaintiffs alleged Garibay was responsible for sending an anonymous letter, dated August 1, 2005, to the vice-president of an ambulance service that planned to participate in an AVLF-sponsored charitable golf tournament. Copies of the letter were sent to three other executives of the ambulance service and two newspapers. The letter criticized the company for contributing to a charitable organization that “was operated by a convicted felon,” who was AVLF’s executive director and president. “The charge was rape and the conviction was kidnapping.” The letter further asserted that AVLF’s president “does nothing more than play golf” and that “[i]t does not appear that there is a functioning board.” The letter-writer continued: “I have become aware of [AVLF] and Mr. Valentine because of a malicious lawsuit that he has filed against a respected member of this community.” The letter concluded: “I am not including my name because I do fear retaliation from Mr. Valentine as he seems to have a history of violence. He is a felon working with children. Do not take my information without doing your own investigation by contacting local agencies such as Boys and Girls Club [sic], United Way, etc.”
In addition, Valentine alleged Garibay was responsible for spreading the false rumor that he was a child molester, based on a reported telephone call to the superintendent of the Westside School District. The superintendent told another person that in May 2005, she received a telephone call from “someone at the local United Way.” The caller, claiming to have received information from the sheriff’s department, said Valentine was a child molester.
Valentine represented that he has never been charged with child molestation. However, he admits that he suffered a 1973 felony conviction for kidnapping after being charged with rape. He was 18 years old and had recently signed a contract with the Montreal Expos, and the criminal matter was handled by an attorney for the baseball team. Valentine alleged he was merely in a house where a rape occurred; he did not commit “any crime whatsoever.” On January 15, 1997, he received a certificate of rehabilitation from the Los Angeles County Superior Court. The court recommended that the Governor grant Valentine a full pardon.
Valentine alleged that through information Garibay received during the discovery phase of the lawsuit—prior to the dates of the 2005 letter and telephone call—Garibay would have known that AVLF had a fully independent and functioning board, and that Valentine was a fully certified and successful youth counselor, who had worked with legitimate nonprofit organizations. She would have also known about the “extenuating and mitigating circumstances” concerning his criminal history, which was limited to the 1973 kidnapping conviction for which he had received the certificate of rehabilitation.
The defamation cause of action was grounded on the statements in the May 2005 telephone call and the August 2005 letter. Plaintiffs alleged the letter’s representations concerning the suspect corporate status and functioning of AVLF, the “malicious” nature of the underlying lawsuit, and other statements were false. They also alleged the representations concerning Valentine’s admitted criminal history (1973 rape charge and kidnapping conviction) were libelous because they imply that his felony conviction was recent and fail to mention his certificate of rehabilitation. Additionally, plaintiffs alleged the telephone caller’s child abuse representation was false and designed to harm Valentine and AVLF. Finally, as to the invasion of privacy claim, plaintiffs alleged the statement in the August 2005 letter concerning Valentine’s criminal record put him in a “false light” because his conviction was a mere technicality, occurred many years ago, and Valentine had not only received the certificate of rehabilitation, but had performed more than 18 years of community services.
Garibay’s anti-SLAPP motion was supported by her own declaration in which she denied any involvement with, or knowledge of, the August 2005 letter and the May 2005 telephone call. The first time she learned about them was when she received a copy of the third amended complaint. To the extent she might have mentioned Valentine’s rape charge or kidnapping conviction, it would have been based on the disclosures made by Valentine in the course of the underlying litigation. If Garibay ever discussed those matters, it would have been in the context of defending the underlying lawsuit or “in furtherance of her right to warn teachers, parents, and school administrators of the potential harm of subjecting their children to a convicted felon for counseling services.”
Plaintiffs submitted a declaration from Valentine in support of their opposition papers, testifying that, among other things, AVLF was a legitimate, successful nonprofit organization in good standing and on sound financial footing. He also declared that he has never mentioned his rape charge to anyone, except in the course of the underlying lawsuit—from which he inferred that the anonymous telephone caller and letter writer must have been Garibay or learned about it from her.
The anti-SLAPP motion was heard on June 29, 2006. The court ruled the third amended complaint’s sixth, seventh, and eighth causes of action must be stricken because the claims arose out of statements made in furtherance of the right to free speech guaranteed by the federal and state Constitutions, and that plaintiffs failed to establish Garibay made the allegedly actionable statements. The court also found Valentine had been “convicted of a felony and, despite a certificate of rehabilitation having been issued, there has been no pardon and no expungement of his felony conviction.” Finally, the court found Garibay was entitled to recover reasonable costs and attorney fees in connection with bringing the anti-SLAPP motion.
On July 24, 2006, plaintiffs filed a motion for new trial that included requests for attorney fees and a “gag order,” contending the granting of the anti-SLAPP motion was erroneous and the motion itself was frivolous and brought in bad faith. On August 17, 2006, the trial court issued a minute order denying the new trial motion and the request for a gag order, but reserving the attorney fees request. A transcript of the parties’ arguments and the trial court’s ruling is not included in the record on appeal.
On August 22, 2006, Garibay filed her motion to recover $80 in costs and $11,750 in attorney fees. Counsel’s supporting declaration detailed the time he spent (by the tenth of an hour with reference to the specific tasks), totaling 47 hours at a rate of $250 per hour, in connection with the anti-SLAPP motion. Plaintiffs filed their opposition eight days later, challenging the award both in its entirety and as to specific amounts claimed. The trial court issued its judgment on September 2, 2006, finding plaintiffs jointly and severally liable for $80 in costs and $8,750 in attorney fees. Plaintiffs did not designate the transcript of that hearing as part of the appellate record.
DISCUSSION
Failure to Provide an Adequate Record
We ordered the parties to brief the issue of whether plaintiffs’ failure to designate a reporter’s transcript of the relevant hearings warranted affirmance based on the inadequacy of the record. “No judgment shall be set aside, or new trial granted, in any cause . . . for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) The law is settled that a party challenging a judgment has the burden of providing an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1003, fn. 1; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1575.) Failure to present an adequate record on appeal “precludes an adequate review and results in affirmance of the trial court’s determination.” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Error is never presumed on appeal. (Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448; People v. Fabricant (1979) 91 Cal.App.3d 706, 711; see also Heather Farms Homeowners Assn. v. Robinson, supra, 21 Cal.App.4th at p. 1575.)
Garibay argues the record of the anti-SLAPP motion was inadequate. We disagree. The court’s written order is part of the record and appears complete with regard to its ruling and findings—it does not refer to any additional findings or rulings made at the hearing. Garibay nevertheless asserts the trial court might have ruled on her written evidentiary objections at the hearing. However, nothing in the order (which Garibay’s counsel prepared) mentions or implies the existence of any evidentiary rulings—and in light of Garibay’s presence at the hearing, she must be charged with knowing whether any such rulings were made. Moreover, as the moving party, it was her obligation to press for a ruling and preserve it.
We find otherwise regarding plaintiffs’ effort to challenge the trial court’s denial of their new trial motion without having designated the transcript of that hearing. On appeal, plaintiffs merely designated the trial court’s minute order, which stated that the motion “is denied,” and that the arguments and rulings are “more fully reflected in the notes of the official court reporter.” Lacking any record of the trial court’s reasoning and findings, we find the appellate record inadequate, and summarily affirm. (See, e.g., Maria P. v. Riles, supra, 43 Cal.3d 1281 at pp. 1295-1296 [no transcript of attorney fees motion hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [omission of the non suit hearing transcript precludes appellant from raising any evidentiary issues on appeal].)
The same is true with regard to plaintiffs’ attempt to overturn the trial court’s attorney fees award. “The successful defendant on an anti-SLAPP motion is entitled to recover its attorney fees and costs as a matter of right. ([Code Civ. Proc.,] § 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [‘any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees’].) Nevertheless, as we explained in Endres v. Moran (2006) 135 Cal.App.4th 952 (Endres), when a successful anti-SLAPP motion accomplishes nothing of practical consequence—that is, where the ‘results of the motion were minimal and insignificant,’ a trial court is justified in finding the defendants should not recover fees. (Id. at p. 955; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 [(Mann)] [‘a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court’].)” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446.) We review an attorney fees award for an abuse of the trial court’s discretion. (Foundation for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388; Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228.) The test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Foundation for Taxpayer and Consumer Rights v. Garamendi, supra, 132 Cal.App.4th at p. 1388, citing Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)
Plaintiffs contend the trial court abused its discretion by failing to reduce the amount of attorney fees requested in light of the fact that a substantial number of causes of action were not subject to the anti-SLAPP motion and, therefore, remained viable. However, we note that Garibay’s counsel requested $11,750 in attorney fees, and the trial court reduced that amount to $8,750 in its award. The court’s written order did not explain the basis for its reduction, and plaintiffs did not designate the transcript of the hearing on attorney fees. Without a hearing transcript, we cannot determine the basis for the trial court’s ruling and whether it amounted to an abuse of discretion. Applying the presumption that the judgment is correct and that there is no error without affirmative proof, we affirm the judgment. (E.g., Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [“The judgment must be affirmed because the record provided by defendant is inadequate to conclude the trial court abused its discretion in determining the fee was reasonable”].)
In any event, plaintiffs “cannot take advantage of the narrow exception recognized in Endres and Mann because [they do] not offer any legal or factual basis for finding that the practical effect of [Garibay’s] victory was nugatory. Dismissal of the causes of action for intentional infliction of emotional distress, defamation, and invasion of privacy cannot be considered trivial victories in the context of this case.” (Morrow v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th at p. 1446.)
Anti-SLAPP Ruling
Plaintiffs argue their third amended complaint was not subject to the anti-SLAPP statute because the May 2005 telephone call and the August 2005 letter were not constitutionally protected and, even if they were, plaintiffs made a sufficient factual showing of a probability of prevailing on the three stricken claims to overcome Garibay’s anti-SLAPP motion. We disagree on both points.
“In evaluating ananti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Under Code of Civil Procedure section 425.16 ‘[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. . . .’ (Code Civ. Proc., § 425.16, subd. (b)(1).)” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) ‘In order to establish a probability of prevailing on the claim (Code Civ. Proc., § 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “‘state[ ] and substantiate[ ] a legally sufficient claim.’” [Citations.] 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.” [Citations.]’ (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) “[A] plaintiff opposing a section 425.16 motion must support its claims with admissible evidence.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237.)
We independently review both the question of whether plaintiffs’ causes of action arise from protected activity and whether they have shown a probability of prevailing on the merits. (Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1577; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
Protected Activity
We assess whether Garibay made a threshold showing that the challenged causes of action arose from protected activity. Code of Civil Procedure section 425.16, subdivision (e) provides that for purposes of an anti-SLAPP motion, 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’ includes,” under subdivision (e)(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, under subdivision (e)(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.” In determining whether Garibay met this initial “arising from” requirement, we consider the pleadings and any supporting and opposing affidavits stating facts upon which the liability is based. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 102.)
Comment on an issue of public concern through an open letter to a newspaper amounts to protected speech under the public forum aspect of the anti-SLAPP statute. (E.g., Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 [“a news publication is a ‘public forum’ within the meaning of the anti-SLAPP statute if it is a vehicle for discussion of public issues and it is distributed to a large and interested community”].) Plaintiffs alleged that the August 2005 letter was intended for publication in two newspapers. As such, the letter’s statements fell within the purview of the anti-SLAPP statute pursuant to Code of Civil Procedure section 425.16, subdivision (e)(3). The fact that the letter was to sent to the newspapers for publication, but never actually published, is not determinative. “Regardless of the scope of publication, protection under the anti-SLAPP statute turns on whether the activity of the defendant involves the right of petition or free speech in connection with a public issue. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.)” (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1282.)
Moreover, the telephone call and the letter fall within the scope of the anti-SLAPP statute regardless of whether a “public forum” was involved. “In 1997, the Legislature added a provision to [Code of Civil Procedure] section 425.16 mandating that courts ‘broadly’ construe the anti-SLAPP statute to further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process. (§ 425.16, subd. (a).)” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473.) Additionally, for purposes of the anti-SLAPP statute, protected free speech activity includes, under Code of Civil Procedure section 425.16, subdivision (e)(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.” As such, the statute pertains to “conduct in furtherance of free speech rights, regardless whether that conduct occurs in a place where ideas are freely exchanged. [Code of Civil Procedure s]ection 425.16, therefore, governs even private communications, so long as they concern a public issue.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897 (Wilbanks).) Accordingly, even if defendant’s statements were not made in a “public forum” for purposes of Code of Civil Procedure section 425.16, subdivision (e)(3), they fall within the scope of subdivision (e)(4). (See Wilbanks, supra, 121 Cal.App.4th at pp. 897-898.)
Thus, with regard to both the August 2005 letter and the May 2005 telephone call, we address the question whether publishing the challenged statements was connected with an issue of public interest for purposes of Code of Civil Procedure section 425.16, subdivision (e). “The most commonly articulated definitions of ‘statements made in connection with a public issue’ focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest. [Citations.]” (Wilbanks, supra, 121 Cal.App.4th at p. 898; see Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1162 [“Commenting on a matter of public concern is a classic form of speech that lies at the heart of the First Amendment”].)
From the record, it is clear that the challenged statements in the telephone call and the letter were connected with issues of public interest—whether Valentine, who was a prominent figure in the community, was fit to provide charitable services, including the counseling of at-risk youths, and whether community businesses should contribute to Valentine’s nonprofit organization. Plaintiffs’ own evidence shows that Valentine was a local celebrity and that AVLF provided extensive services on behalf of the local school district. (See Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547 [“the communications clearly involved issues of public interest, because they involved the societal interest in protecting a substantial number of children from predators”].)
We also reject plaintiffs’ argument that their claim for the intentional infliction of emotional distress did not arise out of protected activity because it was not grounded entirely on the statements in the telephone call and letter. “The anti-SLAPP statute authorizes the court to strike a cause of action, but unlike motions to strike under [Code of Civil Procedure] section 436, it cannot be used to strike particular allegations within a cause of action. [Citation.] Thus, to meet their burden, defendants need not prove that all of their acts alleged in a cause of action fall within the anti-SLAPP statute’s protection. [Citations.] Nevertheless, where a cause of action is based on allegations that include protected and non protected activities, the cause of action is vulnerable to a special motion to strike under the anti-SLAPP statute only if the protected conduct forms a substantial part of the factual basis for the claim.” (A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal.App.4th 1118, 1124-1125.) Here, the statements in the telephone call and letter supplied important, if not critical, allegations in support of the claim. They were certainly a substantial part of the claim.
Likelihood of Success on The Merits
We therefore turn to the second part of the analysis—whether plaintiffs satisfied their burden of showing a likelihood of success on the merits. Again, in determining whether a claim lacks even minimal merit, “the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.” (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 103, citing Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411-412.) “In deciding this question the court again considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ([Code Civ. Proc.,] § 425.16, sub d. (b)(2)); however, it may not weigh the credibility or comparative probative strength of competing evidence. (Wilson [v. Parker, Covert & Chidester (2002)] 28 Cal .4th [811,] 821.) Rather, the court considers whether the plaintiff has made a prima facie showing of facts based on competent admissible evidence that would, if proved, support a judgment in the plaintiff’s favor.” (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 105, citing Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th 628, 646, disapproved on other grounds in Equilon, supra, 29 Cal.4th at pp. 58-59.)
For plaintiffs to show their claims based on the August 2005 letter and the May 2005 telephone call have minimal merit, they must present competent admissible evidence that Garibay was responsible for those publications. We agree with the trial court that they failed to do so. Plaintiffs argue that the circumstances surrounding those publications tend to point the finger at Garibay and support a reasonable inference of her being the instigator. However as we explain, the inference plaintiffs rely upon rests entirely on speculation.
Valentine declared he never disclosed the rape charge to anyone, except in the process of discovery in the underlying lawsuit. From this fact and the fact that the letter was sent and the call was made after those discovery disclosures, plaintiffs contend that it would be reasonable to infer that Garibay was the responsible party. We disagree. Even assuming a motive on her part to impugn or discredit Valentine, there is nothing to warrant an inference of culpable involvement in either publication. Obviously, Garibay was not the only person who would have learned of the rape charge through the discovery process. Counsel, parties, and agents on both sides would have been privy to the proceedings, and any one of them could have passed on Valentine’s disclosures to others, without having any control over how those third persons used the information. Nothing in the records indicates the existence of an order limiting the disclosure of discovery to third parties.
Plaintiffs are also mistaken in arguing that Garibay admitted making the offending statements. In her declaration, she denied any involvement in the call and letter. She merely declared that to the extent she might have discussed Valentine’s admitted criminal history, it would have been in the context of defending the underlying lawsuit or “in furtherance of her right to warn teachers, parents, and school administrators of the potential harm of subjecting their children to a convicted felon for counseling services.” The possibility that Garibay made truthful, legitimate disclosures does not support an reasonable inference that she acted in bad faith by sending the missive and making the offending call. In sum, there is no evidence in the record to warrant a reasonable inference that Garibay was responsible for making the offending statements.
Such statements would be privileged under Civil Code section 47, subdivision (b)’s absolute privilege for a publication or broadcast made in any legislative, judicial, or other official proceeding authorized by law (see, e.g., Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 781 [the litigation privilege extends to communications between private parties preliminary to the institution of an official proceeding]).
Finally, plaintiffs argue that the trial court erred in striking the intentional infliction of emotional distress claim because it was grounded on a substantial number of acts independent of the 2005 letter and telephone call. The general rule is clear: “Where a cause of action refers to both protected and unprotected activity and a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be subject to the anti-SLAPP procedure.” (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 106.) As we explain, shorn of the statements in the two publications, plaintiffs cannot show a reasonable likelihood of success on his cause of action.
A cause of action for intentional infliction of emotional distress has three elements: (1) extreme and outrageous conduct by a defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) a plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by a defendant's outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society and is of a nature which is especially calculated to cause, and does cause, mental distress. (E.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.) Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are not sufficient for liability based upon a cause of action for intentional infliction of emotional distress. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809, citing Rest.2d Torts, § 46, com. D, pp. 72-73.)
As Garibay argued below, the conduct plaintiffs allege as being extreme and outrageous does not satisfy the first Christensen factor. As alleged, that conduct consists of Garibay’s purchasing of the Roper Ranch for herself and implementing for her personal gain the ideas Valentine had disclosed to her in confidence. Plaintiffs identify no authority supporting the proposition that such business-related conduct—no matter how deceitful—can qualify as being “extreme and outrageous” for purposes of an claim for intentional infliction of emotional distress. California authorities make it clear that even grossly inappropriate conduct may not rise to the level of actionable outrageous conduct. (See Cochran v. Cochran, supra, 65 Cal.App.4th at p. 498 [alleged death threat in a telephone message left by the defendant engaged in “an intimate relationship gone bad” with the plaintiff, was an example of “hostile unpleasantries which are intended to sting whoever sits at the delivery end,” but which are beyond the reach of the tort of intentional infliction of emotional distress]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128, fns. omitted [“‘there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. . . .’”].)
Accordingly, we find the anti-SLAPP motion was properly granted as to the sixth, seventh, and eighth causes of action in the third amended complaint.
DISPOSITION
The trial court’s granting of defendant Garibay’s anti-SLAPP motion and its award of attorney fees to Garibay are affirmed, along with its denial of plaintiffs’ new trial motion. Garibay is awarded her costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.