Opinion
G063255
12-04-2024
LILIA E. HAYES, Plaintiff and Respondent, v. JACQUELINE MARTINEZ, Defendant and Appellant.
Lagasse Branch Bell + Kinkead, Traci S. Lagasse, Skylar R. Pascal, Gabriel Kontarovsky, and Jeffrey Y. Tsao for Defendant and Appellant. The Law Offices of Gordon C. Strange and Gordon C. Strange for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-202301330456, Sandy N. Leal, Judge. Reversed and remanded with directions.
Lagasse Branch Bell + Kinkead, Traci S. Lagasse, Skylar R. Pascal, Gabriel Kontarovsky, and Jeffrey Y. Tsao for Defendant and Appellant.
The Law Offices of Gordon C. Strange and Gordon C. Strange for Plaintiff and Respondent.
OPINION
MOTOIKE, ACTING P. J.
Defendant Jacqueline Martinez appeals from an order denying a special motion to strike under Code of Civil Procedure section 425.16 (all undesignated statutory references are to this code). Known as the anti-SLAPP statute, section 425.16 was enacted to address "'a disturbing increase' in strategic lawsuits against public participation (SLAPPs): 'lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.'" (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1242 (Geiser).) Martinez argues: (1) she engaged in protected activity under the anti-SLAPP statute by writing and sending a text message in connection with an issue under review by the trial court, and (2) plaintiff Lilia Hayes cannot show a probability of prevailing on the merits on her defamation and false light causes of actions. We agree and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
Hayes and Dennis Horton started a romantic relationship in May 2022. Over a year later, on June 12, 2023, Hayes filed a complaint against Horton, his business, and his office manager Martinez. Hayes alleged 15 causes of actions, nearly all of which relate to her alleged employment at Horton's business: (1) "whistleblower discrimination"; (2) "harassment against [Hayes] as whistleblower"; (3) "retaliation against [Hayes] as whistleblower"; (4) "violation of [Fair Employment and Housing Act (FEHA)] [citation]; failure to provide reasonable accommodation"; (5) "failure to engage in the interactive process"; (6) "failure to prevent discrimination, harassment and retaliation"; (7) "wrongful termination of employment in violation of public policy"; (8) "negligent hiring, supervision and retention"; (9) "failure to pay for all hours worked in violation of Industrial Welfare Commission Order 9-2001"; (10) "hostile work environment in violation of FEHA"; (11) "failure to pay wages for meal break periods"; (12) "intentional infliction of emotional distress"; (13) "negligent infliction of emotional distress"; (14) "conversion of [Hayes's] personal property"; and (15) "injunction." (Capitalization omitted.) Over two months later, Hayes amended her complaint by adding two causes of action-defamation and false light.
Hayes alleged she worked as an office worker for Horton's tax service business for approximately two months. She alleged Horton terminated her employment in September 2022. She also claimed, after the filing of the original complaint, Martinez sent a text message to a former employee on July 6, 2023. In the text message, Martinez wrote: "'I have been under so much . . . stress [that I] ended up in the [h]ospital. [I'm] [n]ot sure if you [h]eard [Hayes] is [suing] me individually for a . . . million dollars. It is so unfair [o]n so many levels. She's accusing me of threatening her life and accusing [Horton] of sexual harassment[.] How? When she never worked here. She borrowed about [$20,000] from [Horton and] now wants to extort[] him. After you told me not to trust [Hayes] and that she owed [y]ou money[,] I remember you not wanting to see her and everything you shared about [h]er when you sat outside. Now hearing from other people that she's done it to her [p]ast relationships. She's evil [o]n so many levels.'"
Hayes alleged this text message defamed her. She alleged it contained several false statements, including: (1) "'accusing [Horton] of sexual harassment'"; (2) "'she never worked here'"; (3) "'[s]he borrowed about [$20,000] from [Horton]'"; (4) "'[she] now wants to extort[] him'"; (5) "'[a]fter [the former employee] told me not to trust [Hayes]'"; (6) "'[Hayes] owed [the former employee] money'"; and (7) "'[s]he's evil [o]n so many levels.'" (Italics &boldface omitted.) Hayes also alleged this text message portrayed her in a false light because Martinez published false and misleading statements about Hayes to a third party, the former employee.
Martinez moved to strike the defamation and false light causes of action under the anti-SLAPP statute. She argued in pertinent part the text message was "made in connection with an issue under consideration or review by a . . . judicial body," because the text message cited Hayes's complaint and was sent to the former employee to have her serve as a witness in the lawsuit. (§ 425.16, subd. (e)(2).) She argued Hayes would be unable to establish a probability of prevailing on her defamation and false light causes of action.
In support of the motion, Martinez provided a declaration. She declared she learned of Hayes's lawsuit in late June 2023. She explained the former employee, who worked during the period of Hayes's alleged employment, made comments regarding Hayes during the time of the former employee's employment. She therefore sent the text message to the former employee "to speak with [the former employee] and have [the former employee] serve as a witness in connection with my defense of this litigation."
Hayes opposed the motion but did not submit any evidence. Martinez filed a reply.
The trial court denied the motion. Of relevance here, it concluded Martinez's text message was not protected activity under section 425.16, subdivision (e)(2). The trial court explained the text message included "'statements of fact' not based on [Hayes's] [c]omplaint." It stated: "On the whole, the [t]ext [m]essage reads like [Martinez] conversing with [the former employee] about [Hayes's] character and informing [the former employee] that she was sued. The [t]ext [m]essage does not read like [Martinez] was making any statements regarding substantive issues or aimed at achieving the objects of this case, such as obtaining [the former employee's] testimony."
Martinez timely appealed the order denying the anti-SLAPP motion.
DISCUSSION
I. ANTI-SLAPP: LEGAL FRAMEWORK AND STANDARD OF REVIEW
The anti-SLAPP statute aims to shield defendants from "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) To mitigate such risks, "the statute authorizes a special motion to strike a claim '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.' (§ 425.16, subd. (b)(1)." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) "The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) The statute must "be construed broadly." (§ 425.16, subd. (a).)
Courts evaluate anti-SLAPP motions through a two-step process. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) First, "the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park), quoting § 425.16, subd. (b)(1); see § 425.16, subd. (e) [defining protected activity].) Second, if the defendant satisfies the first step, the plaintiff must show "there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The plaintiff must establish the claim has "at least 'minimal merit.'" (Park, supra, 2 Cal.5th at p. 1061.) "Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)
"We review de novo the grant or denial of an anti-SLAPP motion." (Park, supra, 2 Cal.5th at p. 1067.) "'"Thus, we apply our independent judgment, both to the issue of whether the cause of action arises from a protected activity and whether the plaintiff has shown a probability of prevailing on the claim."'" (Balla v. Hall (2021) 59 Cal.App.5th 652, 671.)
II. MARTINEZ'S TEXT MESSAGE WAS PROTECTED ACTIVITY
At step one, "the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) To carry its burden at step one, the moving defendant must establish "that the 'conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16]' [citation], and that the plaintiff's claims in fact arise from that conduct." (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620 (Rand Resources).) "We review the parties' pleadings, declarations, and other supporting documents at this stage of the analysis only 'to determine what conduct is actually being challenged, not to determine whether the conduct is actionable.'" (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 491.) "By requiring that a moving defendant demonstrate that the targeted cause of action is one arising from protected speech or petitioning (§ 425.16, subd. (b)), our anti-SLAPP statute utilizes a reasonable, objective test that lends itself to adjudication on pretrial motion." (Equilon Enterprises, supra, 29 Cal.4th at p. 65; accord Geiser, supra, 13 Cal.5th at p. 1254-1255 ["the touchstone is objective reasonableness"].)
The four categories of protected activity "describe conduct '"in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue."'" (Rand Resources, supra, 6 Cal.5th at p. 620, quoting § 425.16, subd. (e).) Only one category is relevant here, section 425.16, subdivision (e)(2).
Section 425.16, subdivision (e)(2) protects "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body ...." "'[C]ourts have adopted "a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16."'" (Trilogy Plumbing, Inc. v. Navigators Specialty Ins. Co. (2020) 50 Cal.App.5th 920, 931.) "[A] statement is 'in connection with' litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation." (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 (Neville).) Section 425.16, subdivision (e)(2) covers communications related to ongoing litigation, including efforts to contact potential witnesses and persons with an interest in the dispute. (Id. at pp. 1267-1268; Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055 (Contemporary Services).)
At the first step of the anti-SLAPP inquiry, "courts 'look[] to the litigation privilege [(Civ. Code, § 47)] as an aid in construing the scope of section 425.16, subdivision [(e)(2)] with respect to the first step of the two- step anti-SLAPP inquiry ....'" (Neville, supra, 160 Cal.App.4th at p. 1263, second bracketed insertion added.) Courts have equated the "in connection with" standard of section 425.16, subdivision (e)(2) with the reasonable relevancy standard of Civil Code section 47. (Bassi v. Bassi (2024) 101 Cal.App.5th 1080, 1097 (Bassi).) "Put differently, the statement must '"be connected with, or have some logical relation to, the action, i.e., . . . not be extraneous to the action."'" (Id. at p. 1097.) "'Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to "'the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.'"'" (Contemporary Services, supra, 152 Cal.App.4th at p. 1055.)
We first consider what conduct forms the basis for Hayes's claims. The challenged causes of action include defamation and false light. In the defamation cause of action, Hayes alleges certain statements in the text message defamed her. In the false light cause of action, she alleges those same statements portrayed her as a liar and an "'evil person.'" Both causes of action are based on Martinez's text message to the former employee. (See Dziubla v. Piazza (2020) 59 Cal.App.5th 140, 149 (Dziubla) [challenged causes of action "based at least in part on" an online post, which was the protected activity].) We therefore turn our attention to whether the text message was protected activity under section 425.16, subdivision (e)(2), the category of protected activity relevant here.
The content of the text message is related to the substantive issues of the ongoing litigation between Hayes and Martinez. The text message mentions Hayes's lawsuit against Martinez. It cites the amount of monetary damages that Hayes seeks. It recounts allegations in the complaint and substantive issues in the litigation, including Martinez's threats, the accusation of sexual harassment in Hayes's FEHA complaint, and whether Horton's tax business employed Hayes.
Hayes contends Martinez's reliance on Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1 (Healy) is misplaced because, unlike the text message in the instant case, the letter in Healy referred to the pending litigation. Hayes mischaracterizes the text message. In Martinez's text message, Martinez invokes Hayes's lawsuit against Martinez.
Moreover, less than a month after Hayes filed her complaint against Martinez, Martinez directed the text message to the former employee. Martinez reasonably could believe the former employee had an interest in the ongoing litigation as a potential witness, because the former employee worked during the same period of Hayes's alleged employment. (See Neville, 160 Cal.App.4th at pp. 1267-1268 [a letter "directed to [employer's] current and former customers-persons whom [employer] reasonably could believe had an interest in the dispute as potential witnesses"-was "'in connection'" with employer's lawsuit again employee].) Therefore, the text message "relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation." (Id. at p. 1266.)
Hayes argues the text message neither references the former employee being a witness nor requests the former employee to be a witness in the ongoing litigation. She cites no law in support of her argument. Our cases do not appear to require such an explicit statement to qualify as protected activity. (See, e.g., Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1005 [a business owner engaged in protected activity, without referencing any litigation in an e-mail, by requesting documents and asking questions regarding a workers' compensation policy, because such communications were "made in preparation for or in anticipation of litigation"].)
Relatedly, for the first time on appeal, Hayes suggests Martinez, after learning of Hayes's defamation and false light causes of action, provides a post hoc justification in her declaration for sending the text message, thereby changing the meaning of the text message to fall within the scope of section 425.16, subdivision (e)(2). We decline to address this argument, because "'issues not raised in the trial court cannot be raised for the first time on appeal.'" (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603.)
Hayes also argues she "satisfied her evidentiary burden as to [p]rong [o]ne, by demonstrating . . . the text message imputed criminal activity." She does not cite any relevant legal authority in support of this argument. "When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants." (Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 728.) We deem this argument forfeited.
Even if Hayes is attempting to argue "a special motion to strike cannot be used by a defendant whose allegedly protected activity was illegal," that argument would fail. (Dziubla, supra, 59 Cal.App.5th at p. 150.) "[A]t this early stage of the proceedings, the illegality exception applies only if the defendant's activity is 'illegal as a matter of law,' meaning either the defendant concedes the point or the evidence 'conclusively establishes' as much. [Citation.] Neither occurred here." (Id. at p. 151.)
Finally, Hayes contends the trial court properly found the text message was not protected activity, because the text message included "'statements of fact' not based on [Hayes's] [c]omplaint, including the statement that [Hayes] 'never worked here' . . . and that she 'borrowed about [$20,000] from'" Horton. But, as Martinez stated in her declaration, the purpose of the text message was "to speak with [the former employee] and have [the former employee] serve as a witness in connection with [Martinez's] defense of this litigation." And, as explained above, the text message, as a whole, was related to the substantive issues in the ongoing lawsuit and sent to the former employee to convince her to serve as a witness. (See Dziubla, supra, 59 Cal.App.5th at p. 150 ["Despite its vacillating nature, reading the [online post] as a whole makes it clear that [plaintiff] wrote and distributed the document in furtherance of his right to petition the Nevada courts for relief"].) Therefore, Martinez's text message was protected activity under section 425.16, subdivision (e)(2).
In its step one analysis, the trial court appeared to disregard Martinez's declaration and to focus solely on the pleadings to conclude Martinez did not engage in protected activity. But, at the first step, we consider "the parties' evidentiary submissions" to "provide more clarity" regarding the alleged activity forming the basis for the claims. (Wittenberg v. Bornstein (2020) 50 Cal.App.5th 303, 315) And it is objectively reasonable Martinez would communicate with a former employee to serve as a witness in an ongoing lawsuit involving the workplace. (See Geiser, supra, 13 Cal.5th at pp. 1254-1255 [discussing, in the context of section 425.16, subdivision (e)(4), how "the movant's beliefs, motivations, or characterizations may be relevant and, if objectively reasonable, will inform the analysis"].)
III. HAYES FAILS TO SHOW A PROBABILITY OF PREVAILING ON THE MERITS
"If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken." (Baral, supra, 1 Cal.5th at p. 396.)
"A plaintiff cannot show a probability of prevailing on the merits for anti-SLAPP purposes where the claim is barred by the litigation privilege codified in Civil Code section 47." (Bassi, supra, 101 Cal.App.5th at p. 1102.) Under Civil Code section 47, subdivision (b), "'[t]he litigation privilege . . . provides that a "publication or broadcast" made as part of a "judicial proceeding" is privileged. This privilege is absolute in nature, applying "to all publications, irrespective of their maliciousness." [Citation.] "The usual formulation is that the 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 [has] some connection or logical relation to the action." [Citation.] The privilege "is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards."'" (Timothy W. v. Julie W. (2022) 85 Cal.App.5th 648, 661-662.)
"The litigation privilege is a statutory protection that has been interpreted expansively.... Its purpose is to 'afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.' [Citation.] These policy considerations are paramount, and courts recognize that guarding them by adhering to the privilege will 'result[] in some real injuries that go uncompensated.' [Citation.] This is 'simply part of the price that is paid' for free access to the courts. [Citation.] If the privilege applies, it cannot be set aside for any tort claim except malicious prosecution." (Dziubla, supra, 59 Cal.App.5th at p. 155.)
Here, Martinez wrote and sent the text message to the former employee in the context of ongoing litigation. Martinez is a party to that litigation. The purpose of the text message was "to speak with [the former employee] and have [the former employee] serve as a witness in connection with [Martinez's] defense of this litigation." And, as discussed above in the step one analysis, the text message had some connection with the ongoing litigation. While some of the statements in the text message may be impolite, Martinez "would be hard pressed to" provide her account of the events "without the freedom" to characterize Hayes as dishonest, greedy, animated by improper motives, or, more generally, as "'evil.'" (Dziubla, supra, 59 Cal.App.5th at p. 156.) "Because the privilege 'attaches to any publication that has any reasonable relation to [a court] action and is made to achieve the objects of the litigation,'" we conclude the text message falls within the litigation privilege's "broad scope." (Id. at p. 155.)
DISPOSITION
The order denying the anti-SLAPP motion is reversed. The matter is remanded with directions to (1) enter an order granting the motion and (2) consider any request by appellant for an award of attorney fees under section 425.16. Appellant is entitled to costs on appeal.
WE CONCUR: DELANEY, J. GOODING, J.