Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge, No. BC318195
Krane & Smith, Marc Smith and Ann Penners Bergen for Plaintiff and Appellant.
Reed Smith, Paul D. Fogel, Judith E. Posner; Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman and Olivia B. Perry for Defendants and Respondents The Regents of the University of California and Pam Thomason.
Leonard Carder, Beth A. Ross and Jacob F. Rukeyser for Defendants and Respondents Coalition of University Employees, Local 4, and Scott Miller.
KITCHING, J.
INTRODUCTION
Plaintiff Gerald Buckberg, M.D., appeals a judgment entered after the grant of motions for summary judgment by defendants Pam Thomason and the Regents of the University of California (sometimes U.C. Regents) and by defendants Scott Miller and the Coalition of University Employees, Local 4 (CUE) in Buckberg’s suit for invasion of privacy, negligent infliction of emotional distress, and intentional infliction of emotional distress. Buckberg alleged that during a grievance proceeding for sexual harassment brought against him by his former administrative assistant, Judith Becker, Becker entered his office and, without permission, photocopied pages from a book of sexual cartoons, viewed documents faxed to Buckberg by his attorney, read e-mails sent to Buckberg, read the operative notes of surgeries in which Buckberg participated, and gave copies of these documents and forwarded e-mail messages to Miller, her union representative in the grievance proceeding. Buckberg alleges that Thomason and Miller conspired to invade his privacy by authorizing Becker to enter his office and photocopy and take his private documents and forward his private e-mail messages, and by receiving those documents and e-mails.
We conclude that because she never received the forwarded e-mails, documents sent to Buckberg by his attorney, or patient operative records, no inference arose that Thomason had knowledge of or participated in a conspiracy to invade Buckberg’s privacy. Although Thomason received the photocopied pages from a book of sexual cartoons, there was no evidence that Thomason knew Becker wrongfully copied those pages, agreed to a plan to have Becker copy those pages, or intended to aid in Becker’s commission of that act. We therefore conclude that summary judgment was properly granted as to Thomason and the Regents of the University of California.
With regard to Miller, however, Buckberg produced evidence that Miller authorized Becker to obtain documents from Buckberg’s office, knew that she did so, and received those documents. This evidence created a triable issue of fact as to whether Miller had knowledge that Becker wrongfully obtained documents, agreed to a plan pursuant to which Becker would commit those acts, and intended to aid in Becker’s commission of those acts. Summary judgment as to Miller and CUE was therefore erroneous, and should be reversed.
We further conclude that summary judgment was properly granted in two other causes of action. The cause of action for negligent infliction of emotional distress was legally insufficient and duplicative of damages sought in the invasion of privacy cause of action. Because Buckberg did not allege the extreme, outrageous conduct going beyond all possible bounds of human decency required in a claim for intentional infliction of emotional distress, summary judgment was properly granted as to that cause of action.
We therefore reverse the judgment as to Miller and CUE on Buckberg’s cause of action for invasion of privacy, affirm the judgment as to Thomason and the Regents of the University of California on that cause of action, and affirm the judgment as to all defendants on the causes of action for negligent infliction of emotional distress and intentional infliction of emotional distress.
FACTUAL AND PROCEDURAL HISTORY
For 22 years, Judith Becker worked as an administrative assistant for plaintiff Gerald Buckberg, M.D., a professor of surgery at the UCLA School of Medicine. Becker was a CUE member. CUE is a union and exclusive bargaining representative of UCLA clerical employees. CUE and the University of California are parties to a collective bargaining agreement governing employment for UCLA clerical employees. That agreement contains a grievance procedure. Scott Miller, an organizer for CUE, has responsibility for processing grievances, unfair labor practice charges, and other proceedings on behalf of CUE and its employee members. In December 2001, Becker called Miller and reported problems with Buckberg, her supervisor, which included Buckberg’s alleged inappropriate sexual comments and behavior.
Miller met with Becker and two other female employees who complained of similar problems with Buckberg. Becker alleged conduct and comments by Buckberg which she believed constituted sexual harassment and disrespectful treatment. Miller informed Becker of the grievance procedure and of the University’s harassment complaint procedure. He also told Becker that she should provide Miller with copies of any documents she possessed that supported her allegations. Miller stated that he never instructed or encouraged Becker to remove documents not already in her possession or to find or obtain privileged or confidential documents. At the meeting, Becker did not tell Miller that she intended to remove documents from Buckberg’s office.
UCLA appointed Pam Thomason, employed as a sexual harassment and Title 9 officer, to conduct an investigation. Thomason reports to the UCLA Vice-Chancellor of Legal Affairs. Thomason’s responsibility includes conducting investigations when faculty members have been accused of sexual harassment.
Thomason denied ever instructing Becker to take anything from Buckberg’s office. Becker complained that Buckberg had shown her sexual cartoons in a book he kept in his office. Becker photocopied pornographic cartoons that Buckberg had shown to her and Amy Pape, another UCLA employee. Miller understood from Becker that Buckberg kept the cartoon book somewhere in his office. Photocopies of the sexual cartoons were attached to Thomason’s report. Thomason received photocopies of the pornographic cartoons on April 10, 2002. She did not know how Becker obtained those cartoons.
Becker’s job duties included reviewing documents faxed to Buckberg to determine if they contained something she needed to take care of. On May 21, 2002, Becker saw a faxed draft letter to Tina Parish, UCLA’s Director of Human Resources, that was about Becker. Becker photocopied it because she believed it contained untrue statements. She later determined that the letter came from Buckberg’s attorney. Becker sent the draft letter to Miller. Miller later told Becker that the document from Buckberg’s attorney could not be used in the grievance or complaint because it was between a lawyer and client.
Miller did not show the draft letter to Thomason or to anyone else. Thomason first learned that Becker had obtained documents containing communications between Buckberg and his attorney in 2004, after she testified in the sexual harassment trial. Becker found a July 3 memo to Buckberg from his attorney in a sealed envelope that was left under her door at UCLA. Becker faxed the one-page letter to Miller in August 2002. Miller did not recall seeing the memo or discussing it with Becker. Thomason never received a copy of it.
Buckberg provided Becker with access to his university e-mail account, and she checked Buckberg’s e-mail as part of her job duties. Becker told Miller she had access to Buckberg’s university e-mail as part of her job duties. Miller could not recall if he discussed with Becker whether she should review Buckberg’s e-mails to see if there was something helpful to her case, and could not recall whether Thomason ever instructed Becker to review Buckberg’s e-mails. Becker forwarded some e-mail messages from Buckberg’s UCLA e-mail account to Miller.
With regard to operating notes, to remain credentialed at UCLA, Buckberg must provide medical records of cases he worked on at other universities. Becker’s job duties included assembling paperwork for Buckberg’s reappointment at UCLA. Medical records were e-mailed to Becker as Buckberg’s administrative assistant, to provide UCLA with information for Buckberg’s credentials. In December 2001 and January 2002, a question arose whether Buckberg’s reappointment file contained sufficient documentation of surgical procedures on which Buckberg assisted outside UCLA. Buckberg asked Becker to gather that documentation and Becker requested records from medical centers in Asheville, North Carolina; Birmingham, Alabama; Stockton, California; and at Stanford University. After receiving these records, Becker told Miller she believed the operating records for Buckberg’s operations with a Dr. Athanasuleas in Alabama were falsified. Miller told Becker he would help her determine who to contact at UCLA about the falsified patient operating notes. Becker forwarded the patient records to Miller. Miller later faxed Becker: “... I think you might as well rat on Buckberg re: the Op Note as well. What do you have to lose at this point? A good reference from him? I don’t promise things but on this one I think I smell blood.” Miller told Thomason that Becker believed Buckberg had submitted or intended to submit falsified surgery notes involving an Alabama hospital, but Thomason responded that she would not investigate that. Buckberg admits that the patient operating notes were not his personal property and contained no private information about him, and that he never saw these patient operating notes and did not know if they were ever in his office. Miller did not recall Becker providing copies of the operating notes to him. Miller retained copies of all documents Becker provided to him during the investigation. When the CUE grievance file was later produced in Becker’s sexual harassment litigation and in this action, the patient operating notes were not in the CUE file. UCLA took no action against Buckberg regarding the patient operating records.
In January 2002, Miller filed a grievance against Buckberg on behalf of Becker and Pape. It alleged contractual violations resulting from Buckberg’s treatment of Becker and Pape. The grievance also alleged sexual harassment. Miller requested an investigation of Becker’s claim under the harassment complaint procedure. On February 28, 2002, Becker filed a discrimination complaint with the Department of Fair Employment and Housing.
As stated, UCLA appointed Thomason to conduct an investigation. Thomason investigated as a “neutral,” not as an advocate. She had authority to procure any relevant document. Thomason met with Miller and Becker in April 2002. Thomason explained the procedural scope of her investigation, and stated that she had authority to take statements from witnesses and to obtain documents relevant to issues raised by the investigation. She explained that information obtained during her investigation would be shared with Buckberg to allow him to respond to the allegations. At the meeting, Becker told Thomason about specific instances of Buckberg’s conduct that Becker believed were sexual harassment.
Thomason’s investigation lasted from April to August 2002. Becker continued working for Buckberg until July 30, 2002, when she was placed on administrative leave. During the investigation, Thomason told Miller that Buckberg denied many events Becker described, and that Buckberg claimed Becker fabricated sexual harassment allegations to divert attention from her unsatisfactory job performance and her mismanagement of finances in his office. Thomason also told Miller that Becker should provide any documents she knew of that would rebut Buckberg’s claim that Becker had fabricated the sexual harassment allegations. Because the credibility of both Becker and Buckberg would be at issue, Thomason requested any evidence that would support Becker’s claims or discredit Buckberg’s defenses. On one occasion Becker found a floppy disk containing evidence, and asked Miller if it was something he or Thomason needed. Miller called Thomason, and later told Becker that Thomason said whatever Becker could get to Thomason was good. Otherwise Miller never told Becker that Thomason asked Becker to search files for any particular documents. More generally, Miller understood that Thomason’s authority to investigate was being granted to Becker to obtain documents needed for Thomason’s investigation, and if documents existed that supported Becker’s allegations and were relevant to her complaint, Becker had authority to obtain them.
During the investigation of Becker’s grievance, on July 25, 2002, Buckberg filed a complaint against Becker alleging 12 causes of action for forging Buckberg’s name to checks, mismanaging laboratory, office, and personal finances, making false statements against him, and failing to repay a $20,000 loan. Thomason’s investigation, completed shortly thereafter, found, inter alia, that probable cause existed to believe that Buckberg sexually harassed Becker by creating a hostile working environment and that Buckberg filed a lawsuit against Becker in retaliation for her legitimate exercise of her rights.
Becker and UCLA agreed to mediation, and in 2004 resolved Becker’s grievance and the Department of Fair Employment and Housing claim by a settlement agreement. The University paid $163,088.77 to Becker and her attorney in exchange for release of her claims against the Regents of the University of California and her resignation from university employment. The settlement agreement did not require Becker to release her claims against Buckberg.
After receiving right-to-sue letters from the Department of Fair Employment and Housing, on March 11, 2003, Becker and Pape filed a complaint for sexual harassment, unlawful retaliation, battery, defamation, tortious discharge in violation of public policy, sexual harassment, and unlawful retaliation against Buckberg.
Buckberg’s complaint against Becker, and Becker’s complaint against Buckberg, were tried together to a jury, which returned defense verdicts in both cases.
Buckberg’s Complaint:
On July 8, 2004, Buckberg filed the complaint in the instant case. It named as defendants the Regents of the University of California, Thomason, CUE, Miller, and Becker. Becker, having filed for bankruptcy, is no longer in the action. Four of the seven causes of action, brought against the Regents of the University of California, have settled and are no longer part of the lawsuit. The remaining causes of action include intentional infliction of emotional distress, negligent infliction of emotional distress, and invasion of privacy. The complaint alleged that while investigating allegations made in Becker’s grievance proceeding, the U.C. Regents, Thomason, CUE, and Miller instructed, authorized, and conspired with Becker to enter and search Buckberg’s private office at UCLA and remove confidential and privileged correspondence, records, and personal books and materials without Buckberg’s consent. These documents included documents sent to Buckberg by his attorney, patient operating notes, and confidential electronic mail. Buckberg also alleged that Becker sent copies of these documents to Miller.
Anti-SLAPP Special Motion to Strike by Miller and CUE:
On September 27, 2004, CUE and Miller filed a special motion to strike these three causes of action pursuant to Code of Civil Procedure section 425.16, alleging that Buckberg’s causes of action against them related solely to Miller’s statements made during his investigation and pursuit of Becker’s grievance against Buckberg and UCLA. Citing Miller’s declaration, the “anti-SLAPP” motion argued that Miller at no time instructed or suggested that Becker remove privileged or confidential documents from Buckberg’s office. The anti-SLAPP motion also alleged that Buckberg’s lawsuit challenged Miller’s statements to Becker during her grievance proceeding, that Becker’s grievance, arbitration, and DFEH complaint were official proceedings protected by the anti-SLAPP statute, and that the trial court should dismiss Buckberg’s causes of action unless Buckberg could show a probability of prevailing at trial pursuant to Code of Civil Procedure section 425.16, subdivision (b)(1).
The trial court denied defendants’ motion. Defendants CUE and Miller appealed. This court’s opinion in Buckberg I, filed March 17, 2006, affirmed the order denying defendants’ motion, holding that even if defendants met their statutory burden of showing that Buckberg’s causes of action arose from their acts in furtherance of their constitutional rights to petition or free speech in connection with a public issue, Buckberg had made a prima facie showing of a probability that he would prevail on his claims, which was sufficient to negate the defenses of section 425.16, subdivision (e)(2) and (4).
Defendants’ Motions for Summary Judgment:
On remand to the trial court, the parties conducted discovery and on December 13, 2006, the U. C. Regents and Thomason, and CUE and Miller, filed motions for summary judgment.
Buckberg alleged that during the grievance investigation, Becker improperly took four kinds of documents from Buckberg’s office: (1) two documents about Becker’s employment faxed to Buckberg from his attorney; (2) e-mails from Buckberg’s UCLA e-mail account between Buckberg and the University human resources department concerning Becker’s employment; (3) photocopies of sexual cartoons from a book kept in Buckberg’s office; and (4) operating room records from surgeries in Alabama in which Buckberg assisted. Buckberg did not have personal knowledge as to how the specific documents at issue in this case were obtained and was not present when defendants gave instructions about obtaining documents. His claim is based on his belief that the documents were taken and used.
In granting summary judgment for defendants, the trial court issued a statement of decision. It first found that this court’s decision in Buckberg I, affirming the denial of an anti-SLAPP motion made by Miller and CUE, was not law of the case. The litigation was not an issue in anti-SLAPP proceeding, and neither the trial court nor this court ruled on whether the litigation privilege applied to statements by Thomason and Miller during the sexual harassment investigation. Thus the trial court found it was not barred from making later evidentiary rulings that affected the summary judgment motion. The trial court also stated that discovery occurred and factual issues were further developed since the anti-SLAPP proceeding, and the factual record reflected that the defendants were not actively involved with Becker removing documents from Buckberg’s office. Buckberg’s deposition testimony showed that he knew of no statements by defendants showing that Becker acted on defendants’ instructions, advice, and consent in entering Buckberg’s office without his permission. The trial court also noted that the U.C. Regents and Thomason did not participate in the anti-SLAPP motion and thus the law of the case doctrine would not apply as to those defendants.
With regard to the litigation privilege, the trial court stated that Buckberg relied on communications by Thomason and Miller to hold all defendants liable for Becker’s conduct, arguing that Thomason and Miller permitted and approved Becker’s tortious conduct. Thomason and Miller made broad statements to Becker, which she interpreted as allowing her to copy the documents, operating notes, e-mails, and cartoons. The defendants’ statements were made during discussions of an investigation into Buckberg’s alleged sexual harassment of Becker as defendants prepared for judicial proceedings against Buckberg. The trial court therefore found that the litigation privilege prevented Buckberg’s use of the statements to support torts against defendants.
With regard to secondary liability of Thomason and the U.C. Regents, the trial court found that when committing tortious acts, Becker was not acting in the course of her employment and her employer would not be liable for her torts. With regard to Thomason, U.C. Regents, Miller, and CUE, the trial court found that without statements by Miller and Thomason which were subject to the litigation privilege, there was no evidence that these defendants intended Becker’s conduct. An essential element of conspiracy is knowledge of the conspirators of its unlawful objective and their intent to aid in achieving that objective. The presence of Miller’s documents in the sexual harassment file did not create a triable issue that defendants agreed to commit a tort or committed acts in furtherance of a conspiracy.
A judgment for defendants was filed on April 13, 2007. Buckberg filed a timely notice of appeal.
ISSUES
Buckberg claims on appeal that:
1. This court in Buckberg I held that Buckberg stated a prima facie case against CUE and Miller, and the law of the case doctrine compels reversal of the judgment;
2. The litigation privilege does not apply as a matter of law;
3. Summary judgment should be reversed based on triable issues of fact;
4. Miller was not immunized from liability because he was a union representative.
DISCUSSION
1. Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
2. Conspiracy to Invade Privacy
Buckberg’s complaint alleged a cause of action for invasion of privacy against all defendants. No evidence shows that anyone but Becker entered Buckberg’s office and, without permission, copied books and removed documents owned by Buckberg, forwarded e-mails sent and documents faxed to Buckberg to Miller, and forwarded patients’ operating notes. Becker is not a party to this appeal. Buckberg therefore alleges that Miller, CUE, Thomason, and the U.C. Regents conspired with Becker to accomplish this conduct.
“An independent civil wrong is required for the claim of civil conspiracy, the elements of which ‘are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design. [Citation.]’ [Citations.] Because civil conspiracy is not an independent tort, its only significance is that each member of the conspiracy may be held directly responsible as a joint tortfeasor, regardless of actual participation in the tortious act itself.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1406, fn. 7.)
a. Thomason and the U.C. Regents Have Not Been Shown to Have Conspired to Invade Buckberg’s Privacy
Buckberg argues that Thomason’s instructions to Becker to enter Buckberg’s office and take what she needed to support her claims created a triable issue of fact as to whether Thomason conspired to invade Buckberg’s privacy.
A civil conspiracy requires the formation of a group of two or more persons who agree to a common plan or design to commit a tortious act. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.) “The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose.” (Ibid.) In addition to having knowledge of the planned tort, the alleged conspirators must intend to aid in its commission. Knowledge and intent may be inferred from the nature of the acts committed, the alleged conspirators’ interest, and from the circumstances, but there must be evidence of the alleged conspirators’ participation or interest in committing the offense. If a finding of knowledge of and participation in the conspiracy to commit the tortious act relies on inference, that inference must flow logically from other facts established in the action. (Ibid.)
There is no evidence that Thomason had actual knowledge that the tort of invasion of Buckberg’s privacy was planned, concurred in that tortious plan, or intended to aid in the commission of that tort.
In the trial of Becker’s case against Buckberg, Miller testified that during the investigation of Becker’s grievance, Thomason told Miller that Becker should get whatever she needed to further the investigation. That evidence is ambiguous at best in terms of Thomason’s knowledge of a planned tort. Moreover, Thomason made the statement to Miller, not to Becker, who actually took the documents, and it does not show that Thomason had actual knowledge of a plan to invade Buckberg’s privacy or that she concurred in that plan.
With regard to an inference of Thomason’s knowledge of and participation in the plan to invade Buckberg’s privacy by copying documents in Buckberg’s possession or forwarding e-mails sent or documents faxed to Buckberg, Thomason did not receive documents from three of the four categories of documents. Miller never sent Thomason the operative medical notes. When Miller informed Thomason that Becker believed Buckberg had submitted or intended to submit falsified surgery notes involving an Alabama hospital, Thomason responded by saying she would not investigate that. Neither Becker nor Miller ever said anything to Thomason about obtaining documents sent to Buckberg by his attorney. Thomason did not learn that Becker had obtained documents with communications between Buckberg and his attorney until 2004, after she testified in the underlying sexual harassment trial. Buckberg did not dispute that Thomason never saw and did not know about e-mails between Buckberg and other UCLA employees. Miller did not give copies of the e-mails to Thomason; the only person who received them was a regional director of the California Public Employment Relations Board. Thus as to these three categories of documents, no inference arises that Thomason had knowledge of and participated in a plan to invade Buckberg’s privacy.
With regard to the fourth category of documents, Thomason’s grievance report attached copies of sexual cartoons which Becker copied from a book in Buckberg’s possession. Buckberg, however, had no knowledge about what Thomason told Becker that she could and could not get, and had no information that Thomason instructed anyone to do anything improper. Buckberg was not present at conversations Becker had with Miller or with Thomason, and had no specific knowledge about instructions Thomason gave regarding specific documents. Thomason testified that she never discussed with Becker or Miller about going into Buckberg’s office to retrieve documents. Thomason testified that although she received pages of cartoons from Becker, she did not know how Becker obtained those documents, and did not ask Miller or Becker how she obtained those documents. There is no evidence that Thomason had knowledge that Becker wrongfully obtained copies of the sexual cartoons from a book in Buckberg’s possession or that Thomason agreed to such a plan to commit a tort or intended to aid in its commission. We therefore conclude that summary judgment was properly granted as to Thomason and as to the Regents of the University of California.
2. Miller and CUE
i. Buckberg’s Evidence Creates A Triable Issue of Fact as to Miller’s Participation in the Alleged Conspiracy
Buckberg’s evidence creates a triable issue of fact as to whether Miller had actual knowledge that a tort was planned, concurred in the tortious scheme with knowledge of its unlawful purpose, and intended to aid in its commission.
In the trial of her suit against Buckberg, Becker testified that Miller told her that if she had anything, to bring it to him. Becker made copies of the pictures Buckberg showed her in the book, copied an attorney-client privileged fax and letter and gave them to Miller. She also forwarded e-mails of patient operating notes, which were e-mailed to her, to Miller. Miller admitted that during the investigation of the grievance, he knew that when Buckberg was not in his office, Becker took copies of pictures from a cartoon book located in Buckberg’s office. Miller testified that he understood that if Becker had access to records while working for Buckberg, she was free to remove those documents from Buckberg’s office if they were relevant to a complaint.
Becker provided copies of patients’ operative notes to Miller in February or March of 2002. Miller testified that with regard to the operative notes, those notes were e-mailed directly to Becker and he understood that she already had access to them.
Becker viewed e-mails from Buckberg’s UCLA e-mail account and forwarded some of them to Miller.
Miller knew that when Buckberg was not in his office, Becker was taking documents that Buckberg received from his attorney. It was undisputed that Becker faxed Miller a copy of the document Buckberg’s attorney had faxed to Buckberg. Miller told Becker, “we can’t use this.”
Miller admitted that after Becker field her grievance, in a fax to Becker he stated that he smelled blood, meaning that the university was going to have to take seriously the complaints that Buckberg had falsified medical operative notes.
Buckberg’s evidence creates a triable issue of fact as to whether Miller knew that Becker wrongfully obtained copies of sexual cartoons from Buckberg’s book, wrongfully faxed documents sent to Buckberg by his attorney, wrongfully forwarded medical operative notes, and wrongfully forwarded e-mails from Buckberg’s UCLA e-mail account, and as to whether Miller agreed to a plan pursuant to which Becker would commit these acts and intended to aid in Becker’s commission of these acts.
ii. The Immunity in 29 U.S.C. § 185(b) Does Not Apply to Miller
Miller claims that as a union representative, he cannot be individually liable for acts performed in his official capacity. He cites Aragon v. Pappy, Kaplon, Vogel & Phillips (1989) 214 Cal.App.3d 451 (Aragon) and Peterson v. Kennedy (9th Cir. 1985) 771 F.2d 1244 (Peterson). Both cases relied on 29 U.S.C. § 185, subdivision (b) to hold that legal counsel functioning as union agents in the collective bargaining process were immune from individual liability for legal malpractice arising from representation of plaintiff union member in grievance and arbitration proceedings pursuant to a collective bargaining agreement. (Aragon, at pp. 454, 463; Peterson, at pp. 1256, 1261.)
29 U.S.C. § 185, subdivision (b) states: “Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets.”
29 U.S.C. § 185, subdivision (b) is part of the Labor Management Relations Act. Section 185 creates a remedy for breach of a collective bargaining agreement. (Brazinski v. Amoco Petroleum Additives Co. (7th Cir. 1993) 6 F.3d 1176, 1179 (Brazinski).) Section 185 is a grant of jurisdiction only to enforce contracts. (Id. at p. 1180; 29 U.S.C. § 185, subd. (a).) That jurisdiction requires (1) a claim of violation of (2) a contract (3) between an employer and a labor organization. (Carpenters Local U. No. 1846 v. Pratt-Farnsworth (5th Cir. 1982) 690 F.2d 489, 500, 502.) Where someone is not a party to the collective bargaining agreement, his suit for infringement of a right of privacy does not arise under section 185 and the immunity from individual liability of an individual member, agent, or official of a labor organization in subdivision (b) of that statute does not apply. (Brazinski, at p. 1181.) Buckberg is not a party to, and is not suing to enforce, the collective bargaining agreement between CUE and the University of California. Therefore the immunity in 29 U.S.C. § 185 therefore does not apply to Miller.
iii. The Litigation Privilege Does Not Protect Miller’s Communications to Becker
Miller and CUE claim that the litigation privilege of Civil Code section 47, subdivision (b) makes evidence of Miller’s statements in discussions with Becker regarding the investigation of her grievance and Miller’s statements that Becker should provide documents relevant to her grievance inadmissible to prove civil conspiracy.
Civil Code section 47 states: “A privileged publication or broadcast is one made: [¶]... [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure [subject to exceptions not relevant here].”
The litigation privilege applies to all torts except malicious prosecution. It also applies to any publication required or permitted by law in a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and involves no function of the court or its officers. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “ ‘[T]he privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ ” (Ibid.) The litigation privilege makes communications with some relation to judicial proceedings absolutely immune from tort liability. The privilege also may extend to statements made before or after a trial or other proceedings. (Ibid.) It also extends to statements made in “quasi-judicial” proceedings, such as private arbitration proceedings, that are functionally equivalent to court proceedings. (Moore v. Conliffe (1994) 7 Cal.4th 634, 644-645.)
The litigation privilege protects only publications and communications, and whether the defendant’s conduct was communicative or noncommunicative is a threshold issue in determining whether the litigation privilege applies. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058.) “The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.” (Ibid.) Here the gravamen of Buckberg’s cause of action for invasion of privacy was that Becker, without permission, copied documents owned by Buckberg and gave copies to Miller; read e-mails and faxed documents that had been sent to Buckberg and forwarded e-mails and gave copies of faxed documents to Miller; and forwarded to Miller medical operative notes of surgeries in which Buckberg participated. Miller’s statements to Becker concerning her obtaining of documents from Buckberg’s possession are communicative in nature. To be protected by the litigation privilege such communications must have a “connection or logical relation” to the litigation. This means that “the communicative act—be it a document filed with the court, a letter between counsel or an oral statement—must function as a necessary or useful step in the litigation process and must serve its purposes.” (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146, italics omitted.) Statements indicating knowledge of and participation in a conspiracy with a litigant to wrongfully obtain documents from another party to the litigation do not function as a necessary or useful step in the litigation process, and the extension of the litigation privilege to such statements is untenable. (See Kimmel v. Goland (1990) 51 Cal.3d 202, 212.)
We further note authority that the anti-SLAPP statute (Code Civ. Proc. § 425.16) is coextensive with the litigation privilege of Civil Code section 47, subdivision (b), that if the anti-SLAPP statute applies then the litigation privilege applies, and that if statements and communications do not qualify for protection under section 425.16, subdivision (e)(1) or (2), then the litigation privilege similarly does not apply. (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1288, fn 23.) In Buckberg I this court found that Code of Civil Procedure section 425.16 did not protect illegal activity in furtherance of the exercise of constitutional free speech or petition rights, and that Buckberg had made a prima facie showing of facts—Becker’s illegal conduct, in which Miller and CUE were implicated by a civil conspiracy theory—which would negate the defense that the First Amendment protected Becker’s conduct. Consequently the anti-SLAPP statute did not protect Miller and CUE and the trial court correctly denied their special motion to strike. Pursuant to Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC, therefore the litigation privilege did not make inadmissible the allegations of conspiracy made against Miller and CUE.
3. Because Buckberg Has Not Alleged the Extreme, Outrageous Conduct Going Beyond All Possible Bounds of Human Decency, Summary Judgment Was Properly Granted on the Cause of Action for Intentional Infliction of Emotional Distress
Buckberg claims that the trial court erroneously granted summary judgment on his claim for intentional infliction of emotional distress. He bases this claim on Becker’s actions, in conjunction with Thomason and Miller, consisting of taking books from Buckberg’s office without permission to use against Buckberg; forwarding Buckberg’s e-mail to Miller; stealing two attorney-client documents and sending them to Miller; and forwarding and discussing patients’ operating notes. Buckberg claims these constituted outrageous conduct beyond the range of human decency.
A cause of action for intentional infliction of emotional distress requires: (1) outrageous conduct, (2) intent to cause or a reckless disregard of the possibility of causing emotional distress, (3) severe or extreme emotional distress, and (4) actual and proximate cause of the emotional distress by the outrageous conduct. (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1468.)
“Extreme and outrageous conduct is that which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. [Citation.] Insults, indignities, annoyances, petty oppressions or other trivialities will not suffice. The conduct must be such that it would cause an average member of the community to immediately react in outrage.” (Gomon v. TRW, Inc. (1994) 28 Cal.App.4th 1161, 1172; see also Rest.2d Torts § 46, com. d, p. 73, quoted in Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)
Whether an a defendant’s conduct becomes “outrageous” normally presents an issue of fact, but “the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) Thus in reviewing a summary judgment, in appropriate cases this court can decide as a matter of law that conduct is not so extreme and outrageous as to exceed all bounds of what is usually tolerated in a civilized society. (Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1087.)
Becker’s actions do not meet this standard. The forwarding of e-mails and attorney-client communications and taking books from Buckberg’s office without permission, and forwarding and discussing patients’ operating notes do not, as a matter of law, constitute extreme and outrageous conduct going beyond all possible bounds of human decency so as to be regarded as atrocious and utterly intolerable in a civilized society. Summary judgment was properly granted on the cause of action for intentional infliction of emotional distress.
4. The Negligent Infliction of Emotional Distress Cause of Action Was Legally Insufficient and Duplicative of Damages Sought in the Invasion of Privacy Cause of Action, and Therefore Summary Judgment Was Properly Granted
The negligent causing of emotional distress is not an independent tort but the tort of negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.) Thus the traditional elements of duty, breach of duty, causation, and damages are required. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) In its purported cause of action for negligent infliction of emotional distress, Buckberg’s complaint alleges no duty breached, but only that defendants’ conduct caused him to sustain anxiety, worry, mental anguish, and emotional distress. Damages recoverable in California for invasion of privacy include damages for mental suffering and anguish, i.e., for emotional distress. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1485.) Plaintiff’s purported cause of action for “negligent infliction of emotional distress” is therefore both legally without merit and duplicative of the damages allegations in the invasion of privacy cause of action. Summary resolution of this cause of action was thus also appropriate.
DISPOSITION
The judgment as to Pam Thomason and the Regents of the University of California is affirmed. The judgment as to Scott Miller and the Coalition of University Employees is reversed. Costs on appeal are awarded to Pam Thomason and the Regents of the University of California, and to Gerald D. Buckberg as to his appeal regarding Scott Miller and the Coalition of University Employees.
We concur: KLEIN, P. J., ALDRICH, J.