Opinion
B159596.
11-6-2003
TOM CYCHNER et al., Plaintiffs and Respondents, v. FOOD 4 LESS HOLDINGS, INC., et al., Defendants and Appellants.
Horvitz & Levy, Daniel J. Gonzalez, Jon B. Eisenberg, Orly Degani; Littler Mendelson, J. Kevin Lilly, Robert S. Blumberg and Sara J. Candioto for Defendants and Appellants. Rudy, Exelrod & Zieff, Steven G. Zieff, Patrice L. Goldman; Patten, Faith & Sandford, Jules Sandford and Lorraine Grindstaff for Plaintiffs and Respondents.
Food 4 Less Holdings, Inc. (Food 4 Less Holdings), and Ralphs Grocery Company (Ralphs) appeal the denial of their special motion to strike (Code Civ. Proc., § 425.16) a class action complaint by Tom Cychner and others. The defendants contend this action is a SLAPP (strategic lawsuit against public participation) because it challenges the exercise of their constitutional right of petition or free speech in connection with a settlement of potential litigation and because the plaintiffs have not established a probability of prevailing on their claims. We conclude that the complaint is not based on an act in furtherance of the defendants constitutional right of petition or free speech and that the trial court properly denied the motion.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prior Class Actions
Employees of Food 4 Less stores sued Food 4 Less Holdings and Ralphs in two class actions seeking to recover unpaid overtime wages (Kung v. Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC188014); Hines v. Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC202728)). The parties settled the actions. The defendants agreed to pay class members a total of over $4.46 million, exclusive of attorney fees.
Employees of Food 4 Less stores also sued Food 4 Less Holdings and Ralphs in a third action for unpaid overtime wages (Metzler Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC206244)). The appellate record does not disclose the disposition of that action.
2. Complaint in the Present Action
Tom Cychner, Terry Jolicoeur, and Andrew Ramirez sued Food 4 Less and Ralphs in September 2001. The complaint alleges that the defendants pressured employees to opt out of the Kung and Hines class actions and threatened to retaliate against those who participated in the class actions. It alleges that after a settlement in the class actions, the defendants paid employees who had opted out of the class actions a $10,000 bonus as a reward for their loyalty to the company, held a party for them, and provided a steak dinner. It alleges that by providing these benefits to employees who opted out, the defendants discriminated against the employees who participated in the class actions and retaliated against them for participating in the litigation. The complaint also alleges that one of purposes of the alleged discrimination was to discourage employees from participating in the Metzler class action.
The complaint alleges counts against the defendants for employment discrimination in violation of Labor Code section 98.6, tortious retaliation, and unfair business practices (Bus. & Prof. Code, § 17200 et seq.), on behalf of the plaintiffs individually and others who participated in the prior class actions.
3. Special Motion to Strike
Food 4 Less Holdings and Ralphs moved to strike the complaint under the anti-SLAPP statute (§ 425.16). They argued that the plaintiffs complaint is based on the defendants communications and settlements with putative class members, and that those acts are protected conduct under the anti-SLAPP statute. The defendants filed a declaration stating that they had settled with employees who opted out of the class actions, paid those employees in exchange for releases of claims, and calculated settlement payments to those employees using the same formula used in the class action settlements. The declaration stated further that the defendants also paid the employees who opted out an additional amount representing attorney fees that would have been paid to class counsel if the settling employees had participated in the class actions. The defendants requested judicial notice of the complaints, settlements, and other papers filed in the prior class actions.
The plaintiffs argued in opposition that the payment of bonuses was not an act in furtherance of the defendants right of petition or free speech and that the complaint does not challenge the defendants communications or settlements with putative class members. The plaintiffs filed declarations by former employees and other evidence, and argued that the evidence establishes a prima facie case supporting the alleged causes of action. The plaintiffs also argued that the motion was frivolous and requested an award of attorney fees under section 425.16, subdivision (c).
The trial court denied the special motion to strike, stating at the hearing that the motion was denied "mostly for the reasons that were stated in the opposition." The court denied the plaintiffs request for sanctions.
CONTENTIONS
Food 4 Less Holdings and Ralphs contend the complaint arises from an act in furtherance of the right of petition or free speech within the meaning of the anti-SLAPP statute because (1) the complaint arises from alleged threats to employees not to participate in the class actions, which threats were oral or written statements made in connection with pending or potential litigation (§ 425.16, subd. (e), clause (2)); (2) the complaint arises from the alleged bonus payment, which was communicative conduct intended to convey a threatening message to employees in connection with pending or potential litigation (ibid.); (3) the statute defines an act in furtherance of the right of petition or free speech to include any conduct in connection with pending or potential litigation (§ 425.16, subd. (e), clause (4)), which includes the alleged bonus payment; and (4) the alleged bonus payment was conduct related to an issue of public interest within the community of Food 4 Less employees (ibid.). The defendants also contend (5) the plaintiffs failed to establish the probable validity of their claims; and (6) the defendants are entitled to recover attorney fees if they prevail on appeal.
DISCUSSION
1. The Anti-SLAPP Statute
A defendant moving to strike a cause of action under the anti-SLAPP statute must show that the cause of action "aris[es] from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue" (§ 425.16, subd. (b)(1)). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) If the defendant fails to make this showing, the trial court must deny the motion. (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1397.) If the defendant makes this showing, the plaintiff must establish a probability of prevailing on the merits of the claim to avoid dismissal. (& sect; 425.16, subd. (b)(1); Equilon, supra, at p. 63; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
A cause of action "aris[es] from" protected activity within the meaning of section 425.16, subdivision (b)(1), only if the defendants act underlying the cause of action and on which the cause of action is based was an act in furtherance of the defendants right of petition or free speech in connection with a public issue. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001.) Not all conduct related to a cause of action constitutes the basis for the cause of action. (City of Cotati, supra, at p. 80; Gallimore v. State Farm Fire & Casualty Ins. Co., supra, 102 Cal.App.4th at pp. 1399-1400; ComputerXpress, supra, at p. 1001.) A court must consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based" (§ 425.16, subd. (b)(2)) to determine whether a cause of action arises from activity protected under the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) On appeal, we determine de novo whether the challenged cause of action arises from protected activity. (ComputerXpress, supra, at p. 999.)
Section 425.16, subdivision (e), describes four categories of conduct that constitute an "`act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue" within the meaning of subdivision (b)(1): "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or 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." (& sect; 425.16, subd. (e).) Courts must construe the anti-SLAPP statute broadly in order to further the legislative purpose of encouraging participation in matters of public significance. (Id., subd. (a).)
2. The Plaintiffs Causes of Action Arise from the Alleged Bonus Payment
The complaint together with the evidence submitted in support of and in opposition to the special motion to strike reveal that the gravamen of the causes of action for employment discrimination, tortious retaliation, and unfair business practices is that the payment of an additional $10,000 to employees who opted out of the class actions was discriminatory and retaliatory. The complaint alleges that the payment was discriminatory, retaliatory, unlawful, and unfair. The defendants submitted evidence to the effect that the payment represented attorney fees that would have been paid to class counsel if the putative class members had participated in the litigation, and argued that the payment therefore was neither discriminatory nor retaliatory. The plaintiffs submitted evidence to the effect that the payment was made to reward the employees for opting out of the litigation, and argued that the payment therefore was discriminatory and retaliatory.
We conclude that the act underlying the plaintiffs causes of action and on which the causes of action are based is the alleged bonus payment. Although the complaint also alleges that the defendants threatened to retaliate against employees who participated in the class actions, the causes of action are based on the alleged act of retaliation, that is, the bonus payment, rather than the mere threat of retaliation.
3. The Payment Was Not An Act in Furtherance of the Constitutional Right of Petition or Free Speech Under Clause (2) of Section 425.16, Subdivision (e)
The defendants contend clause (2) of section 425.16, subdivision (e), encompasses not only written and oral statements but also other communicative conduct such as the alleged bonus payment, as the defendants characterize that conduct. We disagree. According to its express terms, clause (2) applies only if the cause of action arises from a "written or oral statement or writing." (§ 425.16, subd. (e), clause (2).) The payment of money was not a written or oral statement or writing, so clause (2) does not apply.
The defendants cite Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, disapproved on another point in Equilon, supra, 29 Cal.4th at page 68, footnote 5. Wilcox stated in dictum, "It should be noted the definition of an `act in furtherance of a persons First Amendment rights is not limited to oral and written statements. (§ 425.16, subd. (e).) Thus if the plaintiffs suit arises out of the defendants constitutionally protected conduct, such as a peaceful economic boycott the plaintiff should be required to satisfy the statutes requirements. (NAACP v. Claiborne Hardware (1982) 458 U.S. 886 [73 L.Ed.2d 1215, 102 S.Ct. 3409]; State of Mo. v. Nat. Organization for Women (8th Cir. 1980) 620 F.2d 1301.)" (Wilcox, supra, at pp. 820-821.) At the time of the Wilcox opinion, section 425.16, subdivision (e), included clauses (1) through (3), then unnumbered, but did not include clause (4), which was added by amendment in 1997. (Stats. 1993, ch. 1239, § 1, pp. 7106-7107; Stats. 1997, ch. 271, § 1.) Clauses (1), (2), and (3) then and now expressly apply to only a "written or oral statement or writing," while clause (4) is a catchall provision encompassing "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 issue of public interest." (§ 425.16, subd. (e).) We construe the statement in Wilcox that an "act in furtherance" under section 425.16, subdivision (b)(1), is not limited to oral or written statements to mean that the three clauses of former subdivision (e) were not exclusive. The Legislature later approved this view by amending the statute to include the catchall provision. (Stats. 1997, ch. 271, § 1.) Contrary to the defendants argument, Wilcox did not suggest that clause (2) of subdivision (e) encompasses conduct other than oral or written statements.
Other cases cited by the defendants do not suggest that the phrase "written or oral statement or writing" in the first three clauses of section 425.16, subdivision (e), encompasses the sort of conduct here at issue. In Kashian v. Harriman (2002) 98 Cal.App.4th 892, the court held that a cause of action against an attorney for unfair business practices arose from the attorneys filing of lawsuits and statements made in connection with the lawsuits, and therefore arose from an act in furtherance of the right of petition or free speech within the meaning of the anti-SLAPP statute. (Id. at pp. 907-908, 915.) It is well established that the filing of a complaint is an exercise of the right of petition, and a complaint indisputably is a written statement made in or before a judicial proceeding (& sect; 425.16, subd. (e), clause (1)). (Navellier v. Sletten, supra, 29 Cal.4th at p. 90.) Thus, the conduct alleged in Kashian clearly was within the scope of an "act in furtherance" as defined in the statute, and in no way resembled the bonus payment alleged here.
In Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, the court concluded that a complaint against the defendant arose from the filing of lawsuits to challenge a development project and statements made in public meetings. (Id. at p. 18.) Those acts allegedly were performed by other persons at the defendants behest. (Ibid.) The court held that the defendants instigation of the lawsuits and statements constituted acts in furtherance of the defendants right of petition, and that section 425.16, subdivision (e), encompasses "any writing or speech `made in connection with" an official proceeding even if the writing or speech was not made directly to the official body. (Ludwig, supra, at pp. 17-18, quoting language in former § 425.16, subd. (e), currently in clause (2).) Thus, Ludwig held that clause (2) of subdivision (e) encompasses "any writing or speech `made in connection with" an official proceeding, not that it encompasses any "communicative conduct" in connection with an official proceeding, as the defendants maintain.
The defendants also argue in their reply brief that clause (2) of section 425.16, subdivision (e), should be construed so as to be coterminous with the litigation privilege (Civ. Code, § 47, subd. (b)), and that the litigation privilege extends to communicative conduct. The authorities cited by the defendants support the conclusion that clause (2) encompasses statements protected by the litigation privilege, but do not support the conclusion that clause (2) encompasses communicative conduct other than written or oral statements.
Civil Code section 47 states, in relevant part: "A privileged publication or broadcast is one made: [¶] . . . [& para;] (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 I of Part 3 of the Code of Civil Procedure, except as follows: . . . ."
Both Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs) and Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784 held that certain written or oral statements were made "in connection with an issue under consideration or review by a . . . judicial body" within the meaning of clause (2) because the statements were sufficiently related to anticipated litigation to be covered by the litigation privilege. "`[J]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such statements are equally entitled to the benefits of section 425.16. [Citation.]" (Briggs, supra, at p. 1115, quoting Dove Audio, supra, at p. 784.) In contrast to the present case, Briggs and Dove Audio both involved causes of action arising from written or oral statements, and those opinions do not suggest that clause (2) encompasses other forms of communicative conduct.
Briggs, supra, 19 Cal.4th at page 1123 also held that a defendant moving to strike a cause of action under the anti-SLAPP statute based on a written or oral statement made before or in connection with an official proceeding under clause (1) or (2) of section 425.16, subdivision (e), need not separately demonstrate that the statement concerned an issue of public significance. The court based its conclusion primarily on the plain language of the statute, but also stated that it would be anomalous if much direct petitioning activity that is absolutely privileged under the litigation privilege and under the federal and state Constitutions were not entitled to the procedural protections of the anti-SLAPP statute. (Briggs, supra, at pp. 1113-1117, 1121.) Thus, the court concluded that there should be no separate issue of public significance requirement under clauses (1) and (2) because there is no such requirement under the litigation privilege. The Briggs court did not suggest, however, that clauses (1) and (2) extend to conduct other than written or oral statements.
Equilon, supra, 29 Cal.4th at page 58 held that a defendant moving to strike a cause of action under the anti-SLAPP statute need not demonstrate that the cause of action was brought with the intent to chill the defendants exercise of constitutional rights. The court based its conclusion primarily on the plain language of the statute, but also stated that the anti-SLAPP statute should apply to conduct that is absolutely privileged under the litigation privilege without an additional intent-to-chill requirement. (Equilon, supra, at pp. 58-59, 64-65, citing Briggs, supra, 19 Cal.4th at p. 1121.) Thus, the court concluded that there should be no intent-to-chill requirement under the anti-SLAPP statute because there is no such requirement under the litigation privilege. Again, the court in Equilon did not suggest that clauses (1) and (2) of section 425.16, subdivision (e), extend to conduct other than written or oral statements.
In Rubin v. Green (1993) 4 Cal.4th 1187, 1194-1196, the court held that the litigation privilege extends to communications with some relation to an anticipated lawsuit, including the "communicative acts" of an attorneys alleged misrepresentations to a group of mobilehome residents and filing of a lawsuit and subsequent pleadings on their behalf. The court distinguished "communicative acts" from "noncommunicative conduct," citing Kimmel v. Goland (1990) 51 Cal.3d 202. (Rubin, supra, at pp. 1195-1196.) Kimmel held that the litigation privilege applied to the communicative acts of an attorney counseling and advising his clients (Kimmel, supra, at pp. 208, fn. 6), but did not apply to his clients conduct of illegally tape recording conversations (id. at pp. 209, 212) or the attorneys conduct in connection with his clients misconduct (id. at pp. 207-208, 213). (See Rubin, supra, at pp. 1195-1196.) The Kimmel court stated, "without exception, the privilege has applied only to torts arising from statements or publications. [Citations.]." (Kimmel, supra, at p. 211; see Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 830-831.) Thus, Rubin and Kimmel show that the litigation privilege applies only to statements and publications and does not encompass all forms of communicative conduct as the defendants maintain.
4. The Payment Was Not An Act in Furtherance of the Constitutional Right of Petition or Free Speech Under Clause (4) of Section 425.16, Subdivision (e)
a. The Defendants Contentions
The defendants argue in their opening brief that clause (4) of section 425.16, subdivision (e), encompasses any conduct in connection with pending or potential litigation because conduct in connection with litigation necessarily has some public significance. This argument goes to the public interest requirement but does not explain why the alleged bonus payment was an act in furtherance of the defendants right of petition or free speech under clause (4). Presumably, the defendants intend to rely on the same argument for purposes of clause (4) that they assert under clause (2), namely, that the payment was communicative conduct protected by the right of free speech. The defendants appear to assert this argument in their reply brief.
The defendants also argue in their reply brief, "Plaintiffs do not and cannot dispute that settlement of potential litigation implicates the right of petition." Thus, the defendants belatedly appear to argue that the alleged bonus payment as part of a settlement of potential litigation was an act in furtherance of the defendants right to petition the government for redress of grievances. If the plaintiffs do not dispute this argument in their respondents brief, as the defendants maintain, it is only because the defendants did not assert the argument in their opening brief.
An appellate court ordinarily will not consider an argument in a reply brief that was not raised in the opening brief, although the court has the discretion to consider the argument. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766.) We exercise that discretion here.
b. Clause (4)
Clause (4) of section 425.16, subdivision (e), encompasses all acts in furtherance of a persons constitutional right of petition or free speech in connection with a public issue within the meaning of subdivision (b)(1) other than those identified in the first three clauses: "As used in this section, `an act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) . . . (4) or 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." (& sect; 425.16, subd. (e).) Unlike clauses (1) and (2), clause (4) does not define a subcategory of conduct that is legislatively determined to be an act in furtherance of a persons constitutional right of petition or free speech. (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at pp. 1118, 1122-1123.) Rather, clause (4) is a catchall provision whose scope is as broad as that of subdivision (b)(1).
The defendants as moving parties bear the burden to show that a cause of action arises from an act in furtherance of their constitutional right of petition or free speech in connection with a public issue within the meaning of section 425.16, subdivision (e), clause (4), as we have stated. (Equilon, supra, 29 Cal.4th at p. 67.)
c. Right of Free Speech
(1) United States Constitution
Freedom of speech under the First Amendment to the United States Constitution is not limited to only written and oral communications. The First Amendment also protects expressive conduct that is "`sufficiently imbued with elements of communication" to justify constitutional protection. (Texas v. Johnson (1989) 491 U.S. 397, 404, quoting Spence v. Washington (1974) 418 U.S. 405, 409.) A court must consider the nature of the activity and its context to determine whether the activity is a form of constitutionally protected expression. (Johnson, supra, at p. 405; Spence, supra, at p. 409.) If the conduct is protected under the First Amendment, the court must scrutinize the governmental interests at stake and other factors to determine whether a restriction on the conduct is permissible. (Johnson, supra, at pp. 406-407 [content-based restrictions]; United States v. OBrien (1968) 391 U.S. 367, 377 [content-neutral restrictions].)
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances." (U.S. Const., 1st Amend.)
The United States Supreme Court has recognized many forms of constitutionally protected expressive conduct, including, among others, flag burning (Texas v. Johnson, supra, 491 U.S. 397, 403-406); displaying a flag with a superimposed peace symbol (Spence v. Washington, supra, 418 U.S. 405, 409-410); wearing black armbands to protest American military involvement in Vietnam (Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 505); conducting a sit-in to protest racial segregation (Brown v. Louisiana (1966) 383 U.S. 131, 141-142 (lead opn. of Fortas, J.)); parading (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 568-569); peaceful picketing (Carey v. Brown (1980) 447 U.S. 455, 460); and "within the outer ambit of the First Amendments protection," nude erotic dancing (Erie v. Paps A. M. (2000) 529 U.S. 277, 289). Restrictions on these forms of conduct are permissible only if, under the appropriate level of scrutiny, the governmental interests at stake justify the restriction. (E.g., Johnson, supra, at p. 420; Paps A. M., supra, at pp. 296-302.)
Not all conduct that is intended to convey a message is entitled to constitutional protection, however. "We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech whenever the person engaging in the conduct intends thereby to express an idea." (United States v. OBrien, supra, 391 U.S. at p. 376.) "It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting ones friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." (Dallas v. Stanglin (1989) 490 U.S. 19, 25.) For that matter, almost any act of criminal or tortious misconduct could be regarded as an expression of some sort of disaffection. Something more is required to justify the conclusion that the conduct is "`sufficiently imbued with elements of communication" (Texas v. Johnson, supra, 491 U.S. at p. 404) to invoke First Amendment scrutiny.
We conclude that the payment of money in exchange for a release of claims is not expressive conduct under the First Amendment. The payment of money in these circumstances in no material way resembles the other forms of expressive conduct recognized by the high court. Even if the payment allegedly was intended to send a message to other employees, as the defendants maintain, the purported expression was not so central to the alleged misconduct of discriminatory and retaliatory payment as to render the payment an act of constitutionally protected expression.
(2) California Constitution
The free speech clause in the California Constitution is broader and more protective than the free speech clause in the First Amendment, although in some instances the protection is the same. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 491-493; Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 366-367 & fn. 12.) In this instance, the defendants offer and we can see no reason why our conclusion under the California Constitution should differ from our conclusion under the First Amendment.
"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a).)
d. Right to Petition the Government for Redress of Grievances
The United States Constitution and the California Constitution both protect the right to petition the government for redress of grievances using almost identical operative language. The right to petition includes the right of access to the courts (California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510), which includes "`the basic act of filing litigation" (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115). The scope of the right of access to the courts is not well defined, however, and it is unclear what, if anything, the right encompasses beyond the initiation of litigation. (See Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right (1999) 60 Ohio St. L.J. 557.)
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (U.S. Const., 1st Amend., italics added.)
"The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good." (Cal. Const., art. I, § 3, italics added.)
The defendants initiated no litigation in connection with this matter, and there is no indication that they ever anticipated filing a complaint or intended to petition the government for a redress of grievances in any manner. The plaintiffs complaint therefore does not arise from an act in furtherance of the defendants initiation of a judicial proceeding or other direct petitioning activity. Rather, the complaint arises from the defendants payment to third parties in exchange for a release of claims. The defendants cite no authority and we are aware of no authority to support their perfunctory, belated argument that their settlement payment was an act in furtherance of an exercise of their right to petition the government for redress of grievances in some other manner. We therefore conclude that it was not.
5. Conclusion
We conclude that the plaintiffs causes of action all arise from the alleged bonus payment and do not arise from any written or oral statement or writing within the meaning of clause (2) of section 425.16, subdivision (e). We also conclude that the alleged bonus payment was not an act in furtherance of the defendants constitutional right of petition or free speech under clause (4) of subdivision (e). The defendants therefore have not satisfied their burden as moving parties to show that the causes of action arise from an act in furtherance of their constitutional right of petition or free speech. In light of our conclusion, we need not address the defendants other contentions.
6. The Plaintiffs Are Not Entitled to Attorney Fees on Appeal
A plaintiff opposing a special motion to strike is entitled to recover attorney fees only if the plaintiff requests a fee award pursuant to section 128.5 and the court determines that the motion was frivolous or solely intended to cause unnecessary delay. (§ 425.16, subd. (c).) Although the statute does not expressly authorize the recovery of fees incurred on appeal, a party who is entitled to recover fees in the trial court ordinarily is entitled to recover fees on appeal unless the statute authorizing a fee award expressly provides otherwise. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927-929.) Section 425.16, subdivision (c), does not preclude the recovery of fees incurred on appeal. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, disapproved on another point in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.)
"In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorneys fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." (§ 425.16, subd. (c).)
The plaintiffs are not entitled to recover their fees incurred on appeal, however, because they have not established that the defendants motion was frivolous or solely intended to cause unnecessary delay. The trial court denied the plaintiffs request for fees, and the plaintiffs did not appeal that ruling. Plaintiffs as nonappealing parties cannot challenge the trial courts implied finding that the motion was not frivolous or dilatory. (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439 [a nonappealing respondent cannot seek affirmative relief on appeal by challenging the judgment].) Plaintiffs therefore are not entitled to recover attorney fees under section 425.16, subdivision (c).
DISPOSITION
The order is affirmed. Plaintiffs request for an award of attorney fees incurred on appeal is denied. Plaintiffs are entitled to costs on appeal.
We Concur: KITCHING, J. and ALDRICH, J.