Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2009-00091932-CU-DF-CTL, Jay M. Bloom, Judge.
McDONALD, J.
Plaintiff Juan Bribiesca appeals an order granting the Code of Civil Procedure section 425.16 motion, commonly known as an anti-SLAPP (strategic lawsuit against public participation) motion, filed by defendant Scripps Health, doing business as Scripps Memorial Hospital La Jolla (Hospital). On appeal, Bribiesca contends the trial court erred by granting Hospital's anti-SLAPP motion to strike his causes of action for intentional infliction of emotional distress and unfair competition.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this appeal, we accept as true the facts asserted by Bribiesca and consider Hospital's evidence only to the extent it disproves Bribiesca's evidence as a matter of law. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 733; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
Bribiesca is a licensed perfusionist. A perfusionist operates a heart-lung machine during cardiac and certain other surgeries. Beginning in 1990, Bribiesca had hospital privileges and worked as a perfusionist at Hospital. He performed his professional services as a perfusionist through his corporation, JB Coastal, Inc. (JB). Richard Julien and Holly Colavin, also perfusionists, owned the stock of Pacific Perfusion Inc. (PPI). JB and PPI entered into a partnership named La Jolla Perfusion Enterprises (LJP), which in 2003 entered into a contract with Hospital to provide perfusion services. After the five-year term of that contract ended in 2007, LJP continued to perform perfusion services for Hospital on a month-to-month basis. In addition to the perfusion services provided by Bribiesca, Julien, and Colavin, LJP hired perfusionists Michael Meenan and Kelly Brinkman as subcontractors to also provide perfusion services.
In 2008, after Colavin disassociated from PPI, Brinkman and Meenan unsuccessfully sought to become partners of LJP. In March 2009, they attempted to persuade Hospital to cease using LJP and instead assign all of its perfusion work to them. They called Lisa Thakur, Hospital's vice president of operations, to complain about Bribiesca and Julien and alleged that Bribiesca was volatile and abusive.
On April 2, 2009, Thakur told Bribiesca and Julien about rumors that dissension within LJP might cause two perfusionists to leave, but she did not inform them she had discussed with Brinkman and Meenan the possible assignment to them of Hospital's perfusion work. Thereafter, Julien proposed to Thakur that Hospital should enter into a new perfusion services contract with him (and exclude Bribiesca). Julien told her he planned to terminate his partnership with Bribiesca and would do so while Bribiesca was working at Hospital. Apparently concerned that Bribiesca might "erupt" on receiving notice of that termination, Thakur asked Julien to give her advance notice of the planned termination so she could have a security guard nearby. Thakur then informed Steve Peterson, Hospital's security director, of Julien's planned action. She also contacted an attorney and discussed the circumstances in which Hospital would have the legal right to forcibly remove, and permanently ban, Bribiesca from Hospital's property.
On April 22, Julien notified Bribiesca, while Bribiesca was working at Hospital, of his intent to terminate their partnership. On receipt of that notice, Bribiesca did not erupt or otherwise act inappropriately.
At about 1:00 p.m. on April 29, Bribiesca started a friendly discussion with Aimee Dovidio, a security guard who was patrolling a Hospital hallway. He asked her whether she carried pepper spray and how she would handle an aggressive patient. She replied she did not need pepper spray because she had a radio and would always have backup assistance. Bribiesca told her about a frightening prior incident at a Chula Vista hospital during which he approached a large man who had broken free of his restraints and he (Bribiesca) had nothing with which to defend himself. Their conversation ended within two minutes with Dovidio smiling and laughing.
Soon thereafter, Peterson called Thakur and told her that one of his security officers (presumably Dovidio) had contacted him about her conversation with Bribiesca. Thakur decided to have Bribiesca removed from Hospital's property. When she and Peterson found Bribiesca, she told him he was to be escorted from Hospital's property and he was forbidden to return because he was a threat to Hospital. Bribiesca was then escorted off Hospital's property. Thereafter, Thakur notified Hospital's medical staff chief and director regarding the incident and informed them that Bribiesca had been escorted off Hospital's property.
Apparently that same day, Dovidio wrote an incident report describing her conversation with Bribiesca. That report is included in the record on appeal. It does not state that Bribiesca made any threat to Dovidio, Hospital, or others.
At her deposition, Thakur stated she did not tell Bribiesca his conversation with Dovidio was threatening to Hospital, but rather that it was "inappropriate." She further explained that based on his inappropriate conversation with Dovidio and prior complaints received from people about concerns regarding their safety with him, Hospital did not want him on its property any longer.
At some uncertain time and date after Bribiesca was escorted from Hospital's property (but before the second week of May 2009), Peterson, on his own initiative, called police and the Federal Bureau of Investigation (FBI) to report Bribiesca's April 29 conversation with Dovidio. During the second week of May, Peterson informed Thakur that he had contacted police about the incident.
Peterson's declaration in support of Hospital's motion to strike vaguely states: "Concerned about the safety, I reported this incident to the San Diego Police Department and the FBI via a telephone call shortly thereafter." (Italics added.)
On or about May 6, Bribiesca received a letter from Hospital's chief of medical staff informing him that his hospital privileges as a perfusionist were terminated, effectively immediately, for lack of a physician sponsor. On June 10, two FBI agents, identifying themselves as terrorist task force members, interviewed Bribiesca outside his house.
On or about February 5, 2010, Bribiesca (and JB) filed the third amended complaint in the instant action against PPI, Julien, Colavin, Meenan, Brinkman, and Hospital. That complaint alleged 13 causes of action, but only three causes of action were alleged against Hospital: (1) intentional infliction of emotional distress (fifth cause of action); (2) defamation (sixth cause of action); and (3) unfair competition (13th cause of action). The fifth cause of action for intentional infliction of emotional distress (IIED) alleged:
Although it is not included in the record on appeal, Hospital represents in its brief that Bribiesca's original complaint was filed on June 17, 2009.
The complaint alleged causes of action for: (1) declaratory relief against PPI, Julien, and Colavin; (2) breach of contract against PPI; (3) breach of contract in the alternative against PPI; (4) breach of the covenant of good faith and fair dealing against PPI; (5) intentional infliction of emotional distress against Hospital; (6) defamation against Hospital; (7) defamation against Julien, Meenan, and Brinkman; (8) breach of fiduciary duty against PPI, Julien, and Colavin; (9) conversion against PPI; (10) civil conspiracy against PPI, Julien, and Colavin; (11) intentional interference with prospective economic advantage against Julien, Colavin, Meenan, and Brinkman; (12) negligent interference with economic relationship against Julien, Colavin, Meenan, and Brinkman; and (13) unfair competition against all defendants.
"67. Plaintiffs hereby incorporate all preceding paragraphs of their Complaint.
"68. In April and May of 2009, [Hospital] intentionally did the following:
"(A) Accused [Bribiesca] of acts of terrorism, without reasonable basis or investigation;
"(B) Accused [Bribiesca] of having made a bomb threat;
"(C) Forcibly evicted [Bribiesca] from [Hospital's] business premises as if he were [a] criminal;
"(D) Caused [Bribiesca] to lose his sponsorship and thus his ability to provide perfusion services to [Hospital] or any comparable facility;
"(E) Conspired with PPI to negotiate an exclusive contract for perfusion services at [Hospital] excluding [Bribiesca] from competing for this contract;
"(F) Caused [Bribiesca] to lose income, to lose his interest in a partnership asset, to lose his ability to earn income and to become unemployable in his profession;
"(G) Notified the San Diego police and the FBI that [Bribiesca] was a suspected terrorist with reckless disregard of [Bribiesca's] rights and the probability [Bribiesca] would suffer severe emotional harm;
"(H) Stonewalled [Bribiesca's] request to commence an internal investigation of the charges against him, to allow him to clear his name without a lawsuit, and to exercise his hearing rights pursuant to [Hospital's] written procedures. [Hospital] intentionally denied [Bribiesca] his legal rights.
"69. [Hospital] legally caused [Bribiesca] to suffer severe economic harm, severe emotional embarrassment, humiliation, shame, distress, worry, anxiety, loss of reputation, stature, and confidence. [Bribiesca] has suffered damages in amounts currently unknown but to be proved with specificity at the time of trial. [Hospital's] acts were substantial factors in causing this harm.
"70. [Hospital was] motivated by all of the factors spelled out clearly in [Civil Code] § 3294 - Intent, malice, despicable conduct and [is] legally responsible for punitive damages thereby."
The relief requested by the complaint included: (1) general damages; (2) past and future lost earnings, benefits, and special damages; (3) disgorgement of profits as a result of unfair competition; (4) emotional distress damages; (5) punitive damages; and (6) such other equitable and legal relief that the trial court deems just and appropriate.
On or about March 10, Hospital filed an anti-SLAPP motion, requesting the trial court strike the three causes of action alleged by Bribiesca against it. Hospital's motion was based primarily, if not solely, on Bribiesca's allegation that it had notified police and the FBI that he was a suspected terrorist. Hospital argued "[a]ll three causes of action in [Bribiesca's complaint] arose from [Hospital's] contact with the Police and the FBI, and are subject to a special motion to strike, pursuant to California's Anti-SLAPP... Statute [citation], because the acts of which [Bribiesca] complains were taken in furtherance of [Hospital's] right to free speech in connection with a public issue; and [Bribiesca] cannot demonstrate a probability of success on any of his causes of action."
Hospital's memorandum of points and authorities in support of its motion argues: "This lawsuit is about an incident that occurred on April 29, 2009[, ] wherein [Bribiesca] alleges [Hospital] notified the San Diego Police Department ('Police') and the FBI that [Bribiesca] was a suspected terrorist, which resulted in his harm."
Bribiesca opposed Hospital's anti-SLAPP motion, arguing "[Hospital's] wrongful eviction and banning of Bribiesca from its premises was the act giving rise to the complaint and the subsequent reports to the police and FBI were merely incidental." Furthermore, he argued "[t]he correlation between the report of Thakur, the loss of his sponsorship and thereafter his practice prerogatives flow directly from the wrongful eviction and the subsequent report by Thakur [to Hospital's medical staff director and chief of staff]." In conclusion, he argued "the gravamen of [his complaint against Hospital] is the wrongful banishment."
In reply, Hospital repeated its argument that the gravamen of Bribiesca's causes of action was Hospital's reporting of his April 29, 2009, conversation. It argued "the real 'culprit' here is [Hospital's] reporting to the law enforcement agencies on or about April 29, 2009." It further argued: "The key point is this, if [Hospital] did not report the incident to the law enforcement agencies on or about April 29, 2009, we would not be here today [i.e., Bribiesca would not have alleged his three causes of action against it]."
On or about April 9, the trial court issued a tentative ruling granting Hospital's anti-SLAPP motion to strike Bribiesca's three causes of action against it. Also on that date, the court heard arguments of counsel on Hospital's motion and on the court's tentative ruling. Bribiesca's counsel conceded Hospital had an unqualified privilege to call police and the FBI and report his conversation with Dovidio. However, he stated Bribiesca was not claiming any damages for that conduct by Hospital (apparently conceding the defamation cause of action could or should be stricken). Rather, he argued he was attempting to save, in particular, the IIED cause of action, the thrust of which was Hospital's conduct in escorting and permanently banning Bribiesca from Hospital's property. He argued Hospital unreasonably evicted Bribiesca based not on security reasons, but on business reasons relating to Julien, Meenan, and Brinkman.
On April 13, the trial court issued its order granting Hospital's anti-SLAPP motion to strike Bribiesca's causes of action for defamation, IIED, and unfair competition. The court stated:
"[Hospital] has met its burden of showing the claims concern conduct in furtherance of the constitutional right of free speech. It is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies. [Citations.] A plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one 'cause of action.' [Citation.] When the allegations referring to arguably unprotected activity are only incidental to a cause of action based essentially on protected activity, collateral references to unprotected activity should not obviate application of the anti-SLAPP statute to the complaint. [Citation.]
"Plaintiff Bribiesca claims [Hospital] accused him of acts of terrorism, of having made a bomb threat and forcibly evicted him from [Hospital's] business as if he were a criminal. [Hospital] told others that Bribiesca was a suspected terrorist, had a gun and threatened to make people disappear, was violent and posed a danger to others, and that he had to be made to immediately leave the premises because he posed a threat or danger to others. While [Bribiesca] also claims [Hospital] refused to conduct an internal investigation into alleged personnel complaints against him, the gravamen of his claims for intentional infliction of emotional distress, defamation and unfair competition against [Hospital] is the statements about Bribiesca made to him and others, including the police and FBI accusing him of violent behavior after Bribiesca was evicted from [Hospital's] premises on April 29, 2009. Any allegations about what happened or should have happened a month before are merely incidental to these causes of action based on protected activity. In fact, Bribiesca admitted in his deposition that his intentional infliction of emotional distress claim has to do with the events of April 29, 2009. [Citation.]
"[Hospital] has also shown that the conduct is in connection with a public issue under § 425.16[, subd. (e)(4).] This subdivision applies to private communications concerning issues of public interest. [Citation.] There can be no doubt the safety of its employees at work, at a facility which is open to the public and thus also concerns their safety, is an issue of public interest.
"[Bribiesca] has not met his burden of showing a probability of success on the claims because the statements are protected under [Civ. Code, § 47, subd. (b)]. When a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication enjoys an unqualified privilege under [Civil Code] section 47[, division (b)]. [Citation.]" (Italics added.)
Accordingly, the trial court struck Bribiesca's causes of action for defamation, IIED, and unfair competition. Bribiesca timely filed a notice of appeal challenging the court's order granting Hospital's anti-SLAPP motion.
DISCUSSION
I
Hospital's Motion to Dismiss Appeal
Hospital asserts that because Bribiesca challenges the trial court's dismissal of only two of his three causes of action against it, his appeal seeks partial review of a judgment or order that is nonseverable and we should therefore dismiss it.
Section 425.16 allows a defendant to file a motion to strike one or more causes of action alleged against it. (§ 425.16, subd. (b)(1).) An order granting or denying a special motion to strike is appealable under section 904.1. (§ 425, subd. (i).) In this case, Bribiesca's notice of appeal expressly challenges the trial court's April 13, 2010, "[o]rder under CCP section 425.16 granting [Hospital's] SLAPP motion." Accordingly, his notice of appeal did not seek only partial review of the court's order.
Nevertheless, Hospital asserts Bribiesca's appeal in effect seeks partial review of the order because his appellant's brief challenges only the trial court's striking of his IIED and unfair competition causes of action and expressly waives any contention the trial court erred in striking his defamation cause of action. In general, an appeal does not seek "partial" review of a judgment or order if it is contended that judgment or order should be reversed based on certain errors made by the trial court. An appellant need not contend, much less show, the trial court erred in all of its decisions underlying that judgment or order. Because Bribiesca appeals the trial court's order striking his three causes of action, that order must be reversed, at least in part, if he shows the court erred in striking one or more of those causes of action. We conclude this appeal does not seek partial review of the order.
Furthermore, assuming arguendo this appeal seeks partial review of the order, Hospital does not persuade us the order is nonseverable and therefore the appeal should be dismissed. There is nothing in Bribiesca's challenge of the order's striking of the causes of action for IIED and unfair competition that necessarily involves the order's striking of the defamation cause of action. As shown by our discussion below, the allegations in each cause of action are considered separately for purposes of application of the anti-SLAPP law. They are not necessarily interdependent or so interwoven that independent review is not possible. On the contrary, independent examination of each cause of action is possible in determining whether the trial court erred in striking that cause of action pursuant to the anti-SLAPP law. Accordingly, we reject Hospital's assertion that Bribiesca's appeal seeks partial review of a nonseverable order. None of the cases Hospital cites in support of its argument are factually and procedurally apposite to this case or otherwise persuade us to reach a contrary conclusion. (See, e.g., Gonzales v. R. J. Novick Constr. Co. (1978) 20 Cal.3d 798; ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006.) We deny Hospital's motion to dismiss the appeal.
II
Anti-SLAPP Law Generally
"A special motion to strike under section 425.16, the so-called anti-SLAPP statute, allows a defendant to gain early dismissal of a lawsuit that qualifies as a SLAPP." (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568 (Siam).) The anti-SLAPP statute provides: "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).) "The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims brought to chill another's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. ([§ 425.16, subd. (a).]) In furtherance of this purpose, the anti-SLAPP statute is to be construed broadly. (Ibid.)" (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 518.)
"Under [section 425.16], the party moving to strike a cause of action has the initial burden to show that the cause of action 'aris[es] from [an] act... in furtherance of the [moving party's] right of petition or free speech.' [Citations.] Once that burden is met, the burden shifts to the opposing party to demonstrate the 'probability that the plaintiff will prevail on the claim.' [Citations.] 'To satisfy this prong, the plaintiff must "state[] and substantiate[] a legally sufficient claim." [Citation.] "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.' " [Citation.]' " (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos).)
A defendant meets the burden of showing a plaintiff's cause of action arises from a protected activity under the first prong of the anti-SLAPP law by showing the acts underlying that cause of action fall within one of four categories of conduct, including "any... 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)(4).) In considering a particular cause of action, "we disregard the labeling of the claim [citation] and instead 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies' and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.] We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct... that provides the foundation for the claim.' [Citation.] 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." (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272 (Hylton).) Accordingly, "a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) "[W]hen the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Ibid.)
On appeal, we review de novo, or independently, the trial court's order granting Hospital's anti-SLAPP motion to strike Bribiesca's three causes of action against it. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3; Hylton, supra, 177 Cal.App.4th at p. 1271; Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339.) We review independently the trial court's determination on each of the two anti-SLAPP prongs discussed above. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.) Furthermore, although Bribiesca challenges the trial court's determination on only the second anti-SLAPP prong, we review the court's determination on both prongs because our standard of review is de novo. (Siam, supra, 130 Cal.App.4th at p. 1569.)
Although Bribiesca's appellate briefs do not substantively challenge or address the trial court's determination on the first anti-SLAPP prong, we nevertheless note that Hospital's brief focuses its substantive argument primarily, if not entirely, on that prong.
III
Gravamen of Bribiesca's IIED and Unfair Competition Causes of Action
Bribiesca does not challenge the trial court's order to the extent it struck his defamation cause of action against Hospital. Because he challenges the order only to the extent it struck his IIED and unfair competition causes of action, we limit our review on appeal to the application of the anti-SLAPP law to those causes of action. Although Bribiesca does not substantively challenge or address the trial court's determination that Hospital satisfied the first anti-SLAPP prong on those two causes of action, we nevertheless address that prong in independently reviewing the court's order. (Siam, supra, 130 Cal.App.4th at p. 1569.)
As discussed above, on filing of an anti-SLAPP motion a defendant has the initial burden to show the gravamen or general thrust of a cause of action arises from a protected activity. (§ 425.16, subd. (b)(1); Zamos, supra, 32 Cal.4th at p. 965.) We assess the gravamen or principal thrust of a particular cause of action by identifying its alleged wrongful and injury-producing conduct that provides the foundation for the claim and, if that core injury-producing conduct does not rest on protected speech or activity, the anti-SLAPP statute does not apply and any collateral or incidental allusions to protected activity will not trigger its application. (Hylton, supra, 177 Cal.App.4th at p. 1272.)
Bribiesca's fifth cause of action for IIED alleged various acts by Hospital that caused him emotional distress, as well as incorporating all preceding paragraphs of his complaint. In opposing Hospital's anti-SLAPP motion, he argued the gravamen of his IIED cause of action consisted of Hospital's actions in evicting and permanently banning him from its property. Furthermore, he represented he was not claiming any damages for Hospital's statements to law enforcement.
Independently considering the allegations of Bribiesca's IIED cause of action, we conclude the alleged wrongful and injury-producing conduct that provided the foundation for his IIED claim was, as he argued below, Hospital's act of forcibly evicting and permanently banning him from its property, which caused him to lose his sponsorship and ability to provide perfusion services at Hospital or any other comparable facility. The specific allegations of Bribiesca's IIED cause of action in the context of his complaint's general allegations show his claimed injuries and damages primarily involve the loss of his sponsorship and privileges to work as a perfusionist at Hospital, the loss of his partnership asset, his inability to work as a perfusionist, and the resulting loss of income. Therefore, the gravamen or principal thrust of Bribiesca's IIED cause of action was Hospital's alleged act in wrongfully evicting and permanently banning him from Hospital's property. Bribiesca's complaint expressly and implicitly alleged those acts were based on Hospital's cooperation and conspiracy with Julien, Meenan, and Brinkman in their attempt to provide perfusion services at Hospital and exclude Bribiesca as a perfusionist there. Construing the complaint's allegations, and evidence submitted below, favorably to Bribiesca, we cannot conclude Hospital's act in evicting and permanently banning him from its property was based on legitimate security reasons, much less any conduct in furtherance of Hospital's exercise of its right to free speech in connection with an issue of public interest. Because the gravamen of Bribiesca's IIED cause of action does not involve protected activity under the anti-SLAPP law, Hospital has not satisfied the first prong of the anti-SLAPP law regarding that cause of action. Accordingly, the trial court erred by granting Hospital's anti-SLAPP motion to strike Bribiesca's IIED cause of action.
Although, as the trial court noted, Bribiesca's IIED cause of action included an allegation that Hospital notified police and the FBI that he was a suspected terrorist, that allegation was merely incidental to the gravamen of that cause of action discussed above. If the gravamen, or core injury-producing conduct, on which a cause of action is premised does not rest on protected speech or activity (as in this case), collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. (Hylton, supra, 177 Cal.App.4th at p. 1272; Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 188.) "[W]hen the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Martinez, at p. 188.) Based on our independent review of Bribiesca's IIED cause of action in the context of his complaint as a whole, we conclude his allegations regarding Hospital's statements to police and the FBI, which presumably involve protected activity, were merely incidental to the gravamen of his IIED cause of action involving unprotected activity.
Because Bribiesca does not challenge the trial court's order to the extent it struck his defamation cause of action, we need not address the merits of that decision and whether the gravamen of that cause of action involved protected activity. Although the trial court apparently relied on the allegations in Bribiesca's defamation cause of action in striking his IIED and unfair competition causes of action, we conclude his defamation allegations were irrelevant in determining whether the anti-SLAPP law applied to those causes of action. Furthermore, we note Bribiesca's fifth cause of action for IIED preceded his sixth cause of action for defamation and therefore did not incorporate any of the allegations in his subsequent defamation cause of action.
Applying the same reasoning as above, we further conclude the gravamen or principal thrust of Bribiesca's unfair competition cause of action was Hospital's unprotected activity of evicting and permanently banning him from its property, which allegedly caused him to lose his ability to work as a perfusionist and thereby lose income. His 13th cause of action for unfair competition expressly incorporated all preceding paragraphs of the complaint, which included the allegations set forth in his IIED cause of action. Although Bribiesca's unfair competition cause of action did not set forth specific factual allegations other than those incorporated allegations previously set forth in the complaint, we conclude, based on our review of the entire complaint, the alleged wrongful and injury-producing conduct that provided the foundation for his unfair competition claim was Hospital's act of forcibly evicting and permanently banning him from its property (apparently in coordination and conspiracy with Julien, Meenan, and Brinkman's effort to exclude Bribiesca as a perfusionist at Hospital), which caused him to lose his sponsorship and ability to provide perfusion services at Hospital or any other comparable facility. Because any allegations involving Hospital's statements to police or the FBI that presumably involve protected activity were merely incidental to the unprotected gravamen of Bribiesca's unfair competition cause of action, Hospital has not satisfied the first prong of the anti-SLAPP law regarding that cause of action. Accordingly, the trial court erred by granting Hospital's anti-SLAPP motion to strike Bribiesca's unfair competition cause of action.
IV
Bribiesca's Probability of Success at Trial
Bribiesca contends the trial court erred in deciding the second anti-SLAPP prong and finding he did not carry his burden to show he probably would succeed at trial on his IIED and unfair competition causes of action. Although we need not address the merits of this contention because we concluded above that Hospital did not meet its initial burden to show those causes of action arose out of protected activity under the anti-SLAPP law, we nevertheless briefly address this contention because Bribiesca's appellate briefing substantively addresses only that second prong.
A
If a defendant meets the initial burden to show the acts alleged in a cause of action were in furtherance of free speech or other activity protected by the anti-SLAPP statute, the burden then shifts to the plaintiff to show he or she probably will prevail at trial on that cause of action. (Zamos, supra, 32 Cal.4th at p. 965.) To meet that burden, the plaintiff must state and substantiate a legally sufficient claim by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by the plaintiff is credited. (Ibid.) That standard is similar to those used in deciding motions for nonsuit, directed verdict, and summary judgment. (Siam, supra, 130 Cal.App.4th at p. 1570.) The second anti-SLAPP prong is not satisfied "if the plaintiff fails to produce evidence to substantiate his claim or if the defendant has shown that the plaintiff cannot prevail as a matter of law." (Ibid.)
B
Based on our independent review of Bribiesca's complaint and evidence he submitted in opposition to Hospital's anti-SLAPP motion, we conclude he met his second prong burden to show he probably would prevail at trial on his IIED cause of action.
"The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. [Citations.]... Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.) In opposing Hospital's anti-SLAPP motion, Bribiesca submitted his declaration and excerpts from his and Thakur's deposition transcripts. Making all reasonable inferences from that evidence favorably to Bribiesca, the evidence would support the following findings by a jury. Bribiesca provided perfusionist services at Hospital for 19 years without incident. In March 2009, Meenan and Brinkman, in an effort to take away Bribiesca's perfusionist work at Hospital, told Thakur that Bribiesca was volatile and abusive. However, neither Thakur, nor any Hospital department head, could confirm those allegations. Thakur did not ask Hospital's medical staff to investigate those or any other allegations regarding Bribiesca. In April 2009, Thakur secretly met with Julien and considered his proposal that Hospital give him all of its perfusionist work and exclude Bribiesca (then his partner). Toward that objective, Thakur asked Julien to inform her when he planned to deliver his notice of partnership termination to Bribiesca so that she could arrange to have a Hospital security guard nearby. Thakur consulted an attorney for advice on the circumstances in which Hospital could evict and bar Bribiesca from its property. On April 22, Julien notified Bribiesca of the partnership termination without any "eruption" by Bribiesca or other incident. On April 29, when Peterson informed Thakur about Bribiesca's friendly, nonthreatening conversation with Dovidio, Thakur unreasonably decided to use that incident to evict and permanently ban Bribiesca from Hospital's property. Shortly thereafter, Hospital revoked Bribiesca's staff privileges, causing him to be unable to provide perfusionist services at Hospital or elsewhere.
If presented with that evidence at trial, a jury could reasonably infer Thakur, on behalf of Hospital, intentionally evicted and permanently banned Bribiesca from Hospital's property as a means to, and a pretext for, excluding Bribiesca as a perfusionist there and giving all of Hospital's perfusionist work to Julien, Meenan and Brinkman. The jury could further reasonably infer Thakur, on behalf of Hospital, thereby acted outrageously with the intent to cause Bribiesca severe emotional distress, that he did, in fact, suffer such emotional distress, and that Thakur's outrageous conduct on behalf of Hospital was a substantial factor in causing his emotional distress. Because Bribiesca presented sufficient evidence that, if believed by a jury, would support a verdict against Hospital on his IIED cause of action, he made a sufficient prima facie showing that he probably would prevail at trial on his IIED cause of action for purposes of the second anti-SLAPP prong. To the extent Hospital argues its statements to police and the FBI regarding Bribiesca were absolutely privileged pursuant to Civil Code section 47, subdivision (b), that argument does not defeat Bribiesca's IIED cause of action because, as discussed above, the gravamen of that claim was Hospital's eviction and permanent ban of Bribiesca from its property and not its subsequent statements about him to law enforcement.
C
However, we cannot conclude Bribiesca showed he probably would prevail at trial on his unfair competition cause of action because he did not substantively address that issue below and did not assert any specific legal theory or theories of Hospital's alleged liability on that cause of action. In his opposition to Hospital's anti-SLAPP motion, he did not discuss the elements of any specific theory of unfair competition liability on which Hospital could be found liable based on the evidence he presented in support of his opposition.
Even on appeal, Bribiesca only summarily addresses this issue.
Furthermore, because there are many different types and legal theories of unfair competition causes of action, we cannot conclude, as a matter of law, that Bribiesca's evidence was sufficient to support a jury verdict in his favor on his unfair competition cause of action. (See, e.g., Bus. & Prof. Code, § 17200 ["unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising"]; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949 ["UCL's purpose is to protect both consumers and competitors"]; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179-180, 187 [regarding proof required for unfair competition claim against direct competitor]; Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 283-288 [holding balancing test, and not Cel-Tech test, applies to unfair competition claim by consumer]; Stern, Bus. & Prof. C. § 17200 Practice (The Rutter Group 2003) ¶ 3:121, pp. 3-31 to 3-32, (rev. #1, 2011).)
Although Bribiesca did not show he probably would prevail at trial on his unfair competition cause of action, we note that Hospital, in turn, did not show he could not prevail at trial on that cause of action. Hospital argued below that its statements to police and the FBI regarding Bribiesca were absolutely privileged pursuant to Civil Code section 47, subdivision (b). However, that argument does not defeat Bribiesca's unfair competition cause of action because, as discussed above, the gravamen of that claim was Hospital's act of forcibly evicting and permanently banning him from its property (apparently in coordination and conspiracy with Julien, Meenan, and Brinkman's effort to exclude Bribiesca as a perfusionist at Hospital), which act caused him to lose his sponsorship and ability to provide perfusion services at Hospital or any other comparable facility. Hospital's subsequent statements to law enforcement regarding Bribiesca were merely incidental to the gravamen of that cause of action.
DISPOSITION
The order granting Hospital's anti-SLAPP motion to strike Bribiesca's causes of action is reversed to the extent it granted Hospital's motion to strike his causes of action for intentional infliction of emotional distress and unfair competition. In all other respects, the order is affirmed. The matter is remanded with directions that the trial court vacate the order and issue a new order granting Hospital's motion in part and striking Bribiesca's sixth cause of action for defamation and denying its motion to strike his causes of action for intentional infliction of emotional distress and unfair competition. Bribiesca shall recover his costs on appeal.
WE CONCUR: McCONNELL, P. J., AARON, J.