Opinion
D048056
12-11-2006
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Plaintiff and Respondent, v. MDG, INC., Defendant and Appellant.
In this action for age discrimination under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), defendant MDG, Inc. (MDG) appeals an order denying its special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) MDG contends the court erred by relying on subdivision (d) of section 425.16, which sets forth an exemption from the statute for actions by the Attorney General, district attorney or city attorney prosecuted on behalf of the public. We are not required to reach that issue, however, as denial of the anti-SLAPP motion was proper on the alternative ground MDG did not meet its threshold burden of showing the complaint arises from protected activity. We affirm the order.
Statutory references are to the Code of Civil Procedure unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
MDG operates Cheetahs Nightclub (Cheetahs) in San Diego. Cheetahs employed Joyce Ann Slade as a waitress during the day shift for many years before terminating her employment in February 2004. She was then 49 years of age.
In June 2004 Slade filed a complaint for age discrimination against MDG under the FEHA with the Department of Fair Employment and Housing (DFEH). The complaint alleged that in March 2003 she overheard Mike Galardi, Cheetahs owner, tell a former manager "he wanted young waitresses for the day shift and that [Slade] was too old to be a waitress and we needed someone young." The complaint also alleged a younger person replaced Slade.
In June 2005 the DFEH issued an accusation charging MDG with unlawful employment practices. In response, MDG filed a notice of affirmative defense. The notice is not included in the record, but the parties agree it alleged the following affirmative defenses:
"1. [Slades] termination was based upon reasonable factors other than age, to wit, appearance that []did not comport to the [sexy appearance] requirements of a gentlemans cabaret. . . .
"2. [Slades] termination was done for legitimate business necessity.[]
"3. [Slades] termination alternatively . . . was based on bona fide occupational qualifications. Policy of sexuality of appearance of women being reasonably necessary to perform the dominant purpose of the job which is []to titillate and entice male customers is not actionable discrimination. . . ."
The parties refer to these paragraphs collectively as the "appearance affirmative defense."
MDG elected to transfer the matter to superior court in lieu of having a hearing before the Fair Employment and Housing Commission. (Gov. Code, § 12965, subd. (c)(1).)
In August 2005 the DFEH filed a complaint against MDG in superior court for damages and injunctive relief, naming Slade as the real party in interest. The complaint essentially repeats the allegations of the complaint Slade filed with DFEH. It also elaborates that in February 2004 Galardi "hired a female employee in her early 20s to be a waitress on the day shift to replace [Slade]," and the new employee "had qualifications for waitressing that were essentially equal to or less than [Slades]." The complaint contains causes of action for age discrimination, failure to take steps to prevent discrimination and injunctive relief.
Further, the complaint seeks punitive damages based on the egregious conduct of MDGs principal officers and managers toward Slade. Paragraph 20 of the complaint alleges: "As a corporate employer, [MDGs] officers, directors, and managing agents have, also, ratified the wrongful conduct by the assertion, as an affirmative defense in the [DFEHs] administrative action, of [MDGs] unfettered legal right to terminate [Slade] because of their own perception of their customers preferences regarding [Slades] appearance." (Italics added.) Paragraph 20 is incorporated into the complaints three causes of action.
In response, MDG filed a special motion to strike the complaint under section 425.16. MDG argued the "appearance affirmative defense" cannot be used against it in this litigation, and the complaint is subject to the anti-SLAPP statute, because the defense was alleged in furtherance of its right of petition during a quasi-judicial administrative proceeding. MDG also argued the DFEH is unable to show a probability of prevailing on the merits of its ratification theory, because the pleading of the "appearance affirmative defense" is absolutely protected by the litigation privilege set forth in Civil Code section 47.
In its opposition to the anti-SLAPP motion, the DFEH argued among other things that its action is not subject to the anti-SLAPP statute because it falls within the exemption of subdivision (d) of section 425.16, which applies to actions brought by the Attorney General, district attorney or city attorney acting as public prosecutor. The court issued a tentative ruling denying MDGs motion, explaining the "complaint is not subject to dismissal under [section] 425.16. The complaint is by a state agency, charged with enforcing Californias age discrimination laws. The complaint seeks to enforce the age discrimination laws." After a hearing, the court affirmed its tentative ruling.
DISCUSSION
I
In 1992 the Legislature enacted section 426.16, known as the anti-SLAPP statute, to allow a court to dismiss certain types of unmeritorious claims at an early stage in the litigation. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1159.) "The anti-SLAPP statute is designed to nip SLAPP litigation in the bud by striking offending causes of action [that] chill the valid exercise of the constitutional rights of freedom of speech and petition . . . . " (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042.)
In deciding an anti-SLAPP motion, the trial court must "engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).)
A defendant meets his or her burden by showing the act underlying the plaintiffs cause of action fits one of the categories enumerated in section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) As used in that provision, a protected act includes "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or 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 . . . free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
II
Section 425.16, subdivision (d) provides: "This section shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor." MDG contends the court erred by denying its special motion to dismiss based on this provision, as the DFEH is not one of the parties listed and its action is primarily to enforce Slades private rights.
We are not, however, required to reach that issue. We are persuaded by the DFEHs assertion the denial of the anti-SLAPP motion was proper because MDG did not meet its burden of showing the action "aris[es] from" its exercise of free speech or petition rights as required by section 425.16, subdivision (b). " No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. " (DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, disapproved on other grounds in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944.)
The DFEH did not raise this issue in its opposition to the anti-SLAPP motion, but it is one of law we may nonetheless consider on appeal. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6.)
Section 425.16, subdivision (b)(1) provides: "A cause of action against a person arising 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 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."
The "statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech." (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) "[I]t is the principal thrust or gravamen of the plaintiffs cause of action that determines whether the anti-SLAPP statute applies." (Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 188.) It is the defendants burden to make a threshold showing the challenged causes of action arise from protected activity. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232.)
MDG submits that its assertion of the "appearance affirmative defense" is protected activity because it was made in a quasi-judicial or official proceeding, the matter before the DFEH. The face of the DFEHs complaint, however, shows the causes of action do not arise from that affirmative defense, but from MDGs alleged age discrimination, which is not protected activity. The mere fact that the complaint refers to the affirmative defense, as a purported basis for the imposition of punitive damages, does not change the analysis. A prayer for punitive damages does not constitute a cause of action, but is simply one of several remedies sought for unlawful discrimination. The anti-SLAPP statute "does not accord . . . protection to suits arising from any act having any connection, however remote, with an official proceeding." (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866.) The anti-SLAPP statute is inapplicable here.
DISPOSITION
The order is affirmed. DFEH is entitled to costs on appeal.
We Concur:
HALLER, J.
AARON, J.