Opinion
A116152 A117152
10-29-2008
KURT HENKE, Plaintiff and Appellant, v. OTTO GIULIANI, et al., Defendants and Respondents.
Not to be Published
Plaintiff Kurt Henke appeals from a judgment of dismissal entered after an order granting the special motions of defendants Otto Giuliani, Anthony Pearsall, Joanne Schivley, and Patricia Keener, to strike the complaint pursuant to Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute). Henke presents numerous arguments challenging the dismissal of his lawsuit, none of which is meritorious. Accordingly, we affirm.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Henke also appeals from two postjudgment orders in which the court awarded attorney fees to defendants in the aggregate sum of $87,600, and denied Henkes motion to strike Giulianis cost bill. We dismiss the appeal from the order denying Henkes motion to strike Giulianis cost bill because Henke does not raise any issues regarding that order in his appellate briefs. Also, Henke does not raise any substantive challenge to the attorney fees order, but argues only that the order should be reversed if we reverse the order granting defendants special motions to strike and the judgment of dismissal. Because we conclude there is no basis to reverse the order granting defendants special motions to strike or the judgment of dismissal, the attorney fees order is also affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Since 1998, Plaintiff Kurt Henke has been employed by the City of Vallejo as an assistant fire chief, and at the time of this litigation, he was also the president of the International Association of Fire Fighters, Local 1186, AFL-CIO (IAFF). In his complaint filed on December 13, 2005, he sued former Interim City Manager Otto Giuliani, then City Councilmember Anthony Pearsall and Joanne Schivley, who had been a city council member from December 1997 until December 6, 2005, as well as Patricia Keener, a fire department administrative analyst. Henke alleged defendants defamed him through written and oral communications accusing him of misappropriation of public funds, fraudulent misrepresentations in labor contract negotiations, and harassment of city employees. The complaint asserts causes of action for libel per se, slander per se, violation of state constitutional right of privacy, intentional and negligent infliction of emotional distress, and common law conspiracy based upon the defamation.
Defendants filed special motions to strike the complaint pursuant to section 425.16, which motions were opposed by Henke. After a hearing on March 10, 2006, the court granted Henkes motion for limited discovery to allow him to depose Giuliani, Pearsall, and Schivley. After the filing of supplemental motion papers by the parties and a hearing on June 13, 2006, the court took the matter under submission. On September 11, 2006, the court issued a written decision and order granting defendants special motions to strike the complaint. A judgment of dismissal in favor of defendants was filed on November 2, 2006.
DISCUSSION
I. Defendants Special Motions to Strike
Section 425.16, subdivision (b)(1), provides that: "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."
In resolving a special motion to strike pursuant to section 425.16, the court makes a two-part inquiry. First, the court decides whether the defendant has made a threshold showing that the causes of actions arise from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) In evaluating whether a defendant has met his burden, "the critical consideration is whether the cause of action is based on defendants protected free speech or petitioning activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The statutes "definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Id. at p. 92.) A defendant does not have to establish that the activity is constitutionally protected under the First Amendment as a matter of law. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) Nor does a defendant have to show that plaintiffs lawsuit was intended to chill the exercise of defendants First Amendment rights. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305-306.)
If the court finds that the first prong of the section 425.16 inquiry has been satisfied, " `it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) To satisfy the second prong, a plaintiff must demonstrate the probability of prevailing on his causes of action "by showing the defendant[s] purported constitutional defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses." (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824.) "It is recognized, with the requirement that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions pursuant to Code of Civil Procedure section 437c and requires that the showing be made by competent admissible evidence within the personal knowledge of the declarant. [Citation.]" (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654, fn. omitted, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
"Our review is de novo on both prongs" of the section 425.16 inquiry. (Lee v. Fick (2005) 135 Cal.App.4th 89, 96.)
A. Henkes Claims Against Giuliani
Henkes allegations against Giuliani arose from the following circumstances. In February 2004, Giuliani assumed the position of interim city manager. The city was then operating with a multi-million dollar deficit and was facing a $17 million deficit in the following fiscal year 2004-2005. To eliminate the deficit, Giuliani renegotiated all existing labor union contracts. All bargaining groups, including IAFF, the fire departments union, were given a specific dollar amount necessary to reduce the city expenditures associated with its group expenditures in fiscal year 2004-2005. Additionally, IAFF agreed to defer scheduled raises and reduce staffing by attrition. Because IAFF could not achieve significant savings by reducing staff by attrition, it offered to reduce the number of staff that could take scheduled leave on any given day for the fiscal years 2004-2005 and 2005-2006. IAFF attributed a savings of $ 1,095,000 to this scheduled leave reduction in fiscal year 2004-2005. As part of the negotiations, IAFF agreed to work with the fire chief, participate in scheduled progress meetings with the intent of achieving the stated reductions, and make every attempt to achieve the stated reduction.
IAFFs supplemental contract was prepared by the city at Giulianis direction. A dispute arose regarding whether Giuliani and the negotiating members of IAFF, including Henke, agreed to insert the following sentence in the IAFFs supplemental contract: "The Fire Chief and the (fire union) will meet quarterly to make necessary adjusts [sic] to ensure that the goal of $1,095,000 is met." In October 2004, after discussions, Henke crossed out "to make necessary adjusts to ensure that the goal of $1,095,000 is met" and handwrote the following ending to the sentence: "to discuss the progress that is being made toward the goal of saving $1,095,000." The IAFF supplemental contract on file at the Vallejo City Hall contains Henkes handwritten addition to the contract.
During a May 24, 2005, City Council public budget study session, Councilmember Pearsall questioned Fire Chief Parker about the fire departments budget. The fire department had overspent its budget, and needed an additional $475,000 to cover overtime expenses. At the hearing, Henke stated that Giuliani had given the city council an erroneous version of IAFFs supplemental contract. Henke stated that Giuliani had misrepresented the agreement to the city council, and that the expenditure savings were a "goal" not a "guarantee."
After viewing a videotape of the May 24, 2005, public meeting, Giuliani wrote a letter dated June 5, 2005, addressed to Councilmember Pearsall, and sent copies of the letter to other members of the city council, the new City Manager Roger Kemp, and City Attorney Fred Soley. The letter concerned: "May 24, 2005 Budget Hearing; Misconduct of Assistant Fire Chief Kurt Henke." Giuliani vehemently denied the charges asserted against him by Henke at the public meeting on May 24. Giuliani explained, in detail, the process that resulted in the final signed supplemental contract with IAFF. As to the disputed sentence in the contract regarding IAFFs agreement to achieve the stated monetary reductions in the fire departments budget, Giuliani asserted Henke had added the handwritten sentence after the agreement had been approved and signed by two or three members of the unions negotiating team. Giuliani believed Henke changed the sentence "to cloud the IAFF[s] responsibility for meeting their stated reductions," but the sentence, as amended, did not eliminate or modify the spirit or intent of the "good faith" bargained-for agreement. And, if Henke claimed that the inserted sentence changed the spirit or intent of the agreement, then the city was the victim of " `bad faith " and should seek appropriate relief.
Giuliani concluded his letter by stating: "In addition to his slanderous remarks about me, Assistant Fire Chief Henke blamed the current 48/96 shift configuration for some of the higher costs of providing fire service to Vallejo. The time to return to the traditional shift configuration is now. Assistant Fire Chief Henkes remarks during the public comment portion of the budget hearing conducted on May 24, 2005, can only be described as diatribe, distortion of the facts and a personal attack on the integrity of a prior city manager. Assistant Fire Chief Henke was being paid by the city (union business) at the time of his remarks. His actions bring disrepute to the City of Vallejo, expose the city to further financial liability and violate numerous city and department policies. [¶] I respectfully request that the city council direct the city manager to appoint an independent investigator to thoroughly investigate this as well as other misconduct of this city employee. I have additional information and evidence of Assistant Fire Chief Henke[s] misconduct to share with your investigator. I will gladly make myself available to the city council or an independent investigator to facilitate a resolution of this matter that is in the best interests of the City of Vallejo and its citizens." On June 9, 2005, the Vallejo Times Herald published an article accurately reporting portions of Giulianis June 5 letter.
In a letter dated June 22, 2005, City Manager Kemp informed Giuliani that the citys human resources staff, with the assistance of the city attorneys office, would review his allegations regarding Henkes conduct at the May 24, 2005, public hearing. About a month later, in a July 20, 2005, letter, Kemp told Giuliani that both the city attorney and outside labor counsel had concluded that no disciplinary action could be taken against Henke as a city employee for his comments at the city council hearing because Henke had attended the hearing and spoken in his capacity as IAFF president. The city attorney and outside labor counsel, however, "rendered no opinion in regard to any possible slanderous comments that may have been made at this meeting."
Henkes causes of action against Giuliani for libel per se, violation of state constitutional right of privacy, common law conspiracy, and intentional and negligent infliction of emotional distress are based upon his June 5, 2005, letter to Councilmember Pearsall. Henke does not argue that his claims against Giuliani are not based upon protected activity within the meaning of section 425.16, subdivision (e). He only argues that certain statements in the June 5 letter were not covered by the privilege pursuant to Civil Code section 47, section (b), and that he submitted evidence from which a reasonable trier of fact could conclude that certain statements were not "mere opinion" or "too vague" to be actionable, and were written with actual malice.
The statute provides that 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) 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." (§ 425.16, subd. (e).)
We conclude Giulianis June 5 letter is not actionable because it is protected by Civil Code section 47, subdivision (b), which establishes an absolute privilege for a publication that is made in any "legislative," "judicial," or "in any other official proceeding authorized by law." (Id.) Henke argues Giulianis letter is not privileged because it was not made in the context of a legislative, judicial or other official proceeding, nor a proceeding of any kind. However, the letter was related to the city councils legislative proceeding of May 24, 2005, concerning the citys budget and the expenditures of the fire department. That Giuliani later sent a letter to a council member regarding the May 24 public meeting does not render the privilege inapplicable. The privilege covered by subdivision (b) of section 47 of the Civil Code is not limited to statements made during the proceeding, "but may extend to steps taken prior thereto, or afterwards." (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241; italics added.)
Nor was the Civil Code section 47, paragraph (b), privilege lost by Giulianis request that the city council investigate Henkes conduct at the public hearing and other misconduct by Henke. "There is no requirement that a letter of complaint expressly request an investigation, hearing or that the agency take any particular action." (Lee v. Fick, supra, 135 Cal.App.4th at p. 97.)
Because Giulianis letter was absolutely privileged pursuant to Civil Code section 47, subdivision (b), all of the designated causes of action alleged against him are barred. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 [privilege bars all tort causes of action except malicious prosecution claim]; see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 960-961 [privilege bars action for violation of state constitutional right of privacy].) In light of our determination, we do not address Henkes arguments that he demonstrated a probability of prevailing by presenting prima facie evidence that portions of the letter were defamatory and not opinion or too vague to be actionable, or that Giuliani published the letter with actual malice.
B. Henkes Claims Against Pearsall and Schivley
Henkes allegations against Council members Pearsall and Schivley arose from the following circumstances. The city council is responsible for reviewing, approving and overseeing the citys budget. (Vallejo City Charter, Article VII.) As council members, Pearsall and Schivley were concerned that the lack of steady revenues into the general fund and that increased expenditures from the general fund posed a serious risk of bankruptcy for the city. Approximately 74 percent of the general funds expenditures are related to the citys police and fire departments. For fiscal year 2004-2005, the fire department requested that the city council authorize an additional $745,000 in overtime expenses, increasing that departments annual overtime wages to about $1,450,000 for that fiscal year.
A portion of the fire departments expenditures paid from the citys general fund included expenses for union business leave, which was time taken by union members to conduct union business. Union members were allowed to use union business leave for all meetings between the city and the union and other union business "such as attending educational conferences." Before fiscal year 2004-2005, the city agreed to pay the fire department a total of 600 hours for union firefighters to use union business leave, which was an increase from an original allotment of 180 hours.
In May 2005, the city council received a report from Fire Chief Parker addressed to City Manager Kemp, which included a summary of all union business leave used by union firefighters for fiscal year 2004-2005. On May 24, 2005, the city council held a public study session regarding the proposed city budget for fiscal year 2006-2007. Council members Pearsall and Schivley were present, as well other city officials and private citizens. Both council members and private citizens expressed concern about the salaries and overtime being paid to the firefighters as well as the payment of overtime to cover a firefighters absence while on union business leave. After the meeting, both Pearsall and Schivley, as well as Councilmember Gary Cloutier asked City Manager Kemp to investigate the use of union business leave and the expenditure of overtime by fire department employees.
1. Pearsall
Henkes causes of actions against Pearsall for slander per se, violation of state constitutional right of privacy, common law conspiracy, and intentional and negligent infliction of emotional distress are based upon the assertion that Pearsall told Councilmember Pamela Pitts that Henke was "nothing but a crook," "dishonest," and "needs to be fired." In her declaration, Pitts asserted that Pearsalls statements were made to her while they were in the city council conference room behind the council chambers shortly after an adjourned council meeting on June 21, 2005. During that meeting Pearsall asked City Manager Kemp to investigate the charges against Henke that had been made by Giuliani in his letter of June 5, 2005, to Pearsall.
Henke does not argue that his claims against Pearsall are not based upon protected activity within the meaning of section 425.16. He only argues that he submitted evidence from which a reasonable trier of fact could conclude that Pearsalls statements were defamatory and spoken with actual malice. We conclude that Henke has failed to demonstrate a probability of prevailing on his claims against Pearsall.
"The First Amendment protects not only the expression of political opinion but the choice of words used to convey that opinion." (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 684.) "[W]here potentially defamatory statements are published in a public debate . . . or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by the use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion." (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601.)
The trial court found, and we concur, that the challenged statements spoken by Pearsall to Pitts were made in the context of a political discussion between two city council members. The comments were too broad to imply specific defamatory facts, but were "the usual political hyperbole customarily encountered when political figures clash on controversial public matters." (Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277, 291.) In light of our determination, we do not address Henkes arguments that he demonstrated a probability of prevailing by presenting prima facie evidence that Pearsalls statements were spoken with actual malice.
2. Schivley
Henkes causes of action against Schivley for slander per se, violation of state constitutional right of privacy, common law conspiracy, and intentional and negligent infliction of emotional distress are based upon the following assertions: (1) in early June 2005, during an interview with Fire Chief Parker, Schivley claimed that Henke had made changes to the citys 2004 supplemental agreement with IAFF without authorization, to which Parker replied that Henkes modification had been authorized by Giuliani; and (2) in the late summer or early fall of 2005, in a conversation between Henke and Schivley, Henke asked Schivley if she had been accusing him of stealing by misusing union business leave. Schivley replied she had made that accusation to the city manager and "the appropriate people."
Again, Henke does not argue that his claims against Schivley are not based upon protected activity within the meaning of section 425.16. He only argues that he submitted evidence from which a reasonable trier of fact could conclude that Schivleys statements were defamatory and spoken with actual malice. We conclude that Henke has not demonstrated a probability of prevailing on his claims against Schivley.
Schivleys alleged claim that Henke was not authorized to change the supplemental IAFF contract can only be characterized as nonactionable opinion. To determine whether a statement is actionable fact or nonactionable opinion, the court employs a "totality of the circumstances" test. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) "For words to be defamatory, they must be understood in a defamatory sense. . . . [¶] Next, the context in which the statement was made must be considered. [Citation.]" (Id. at p. 385-386.) Also, as explained in the Restatement Second of Torts, a "pure type of expression of opinion" occurs "when both parties to the communication know the facts or assume their existence and the comment is clearly based on those assumed facts and does not imply the existence of other facts in order to justify the comment. The assumption of the facts may come about because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise." (Rest. 2d Torts, § 566, com. b., p. 171.) Schivleys statement to Parker, and Parkers response, evidences that at the time of the conversation, they were both aware of the dispute regarding the significance of the modification of the contract language in the IAFFs supplemental contract, which had become known to the public as a consequence of Henkes comments at the May 24, 2005, city council hearing, Giulianis June 5 letter to council members, and the press report of the controversy. Taking into account the totality of the circumstances in which Schivleys purported statement to Parker was made, a reasonable trier of fact could not conclude that the statement implied a provably false factual assertion and was not mere opinion.
Schivleys purported statements to Henke were spoken only to Henke and not published to third persons at that time, and therefore, they are not actionable. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 278.) Additionally, Schivleys identification of her communications regarding Henkes conduct to "the city manager and the appropriate people," were absolutely privileged under Civil Code section 47, subdivision (b), which protects reports of suspected wrongdoing to the appropriate authorities for investigation and possible prosecution. (See Lee v. Fick, supra, 135 Cal.App.4th at pp. 96-97.) There is no evidence in the record establishing that at the time Schivley spoke with the city manager and the appropriate people she then knew or had reason to know that Henke had been "cleared" by the city manager regarding his use of union business leave.
In light of our determination, we do not address Henkes arguments that he demonstrated a probability of prevailing by presenting prima facie evidence that Schivleys statements were spoken with actual malice.
C. Henkes Claims Against Keener
Henkes allegations against Keener arose from the following circumstances. Keener was employed as an administrative analyst with the fire department. Her duties and responsibilities included preparing the budget for the department, which involved reporting the use of union business leave by union members. In March of 2004, Henke requested Keener to compile information regarding the use of union business leave for fiscal year 2003-2004. In emailing a copy of the union business leave report to Henke, Keener accidently copied other employees by including an asterisk in the address line. Henke sent an email to all fire department employees accusing Keener of compiling an improper report including inaccurate information, using her time inappropriately, being uncooperative, and attempting to influence the union. Henkes email resulted in an investigation into Keeners preparation of the union business leave report. Although Keener admitted to mistakenly emailing the report to all employees of the fire department, the investigation resulted in findings that she did not do so with malice, and Henkes remaining allegations against her "were either unfounded, not sustained, or that she was completely exonerated." Keener believed Henkes accusatory email created a hostile work environment. She complained repeatedly to her supervisor Chief Parker but she did not receive a response. She then submitted a written complaint, dated May 17, 2005, to City Manager Kemp in which she detailed her problems with Henke. The city manager commenced an investigation of Keeners complaint against Henke. Three months later, in a letter dated August 25, 2005, Keener complained to the city manager about the delay in the completion of the investigation. In the August letter, Keener stated she had forwarded a copy of the letter to city council members, that she expected her letters would be treated "with the utmost confidence" deserving of a personnel matter, and that her distribution of the letter to the city council members did not constitute a waiver of her privacy rights as a city employee. She gave permission to the city council members to review her letters and any attachments in closed session or otherwise not inconsistent with her privacy rights. Keener also mentioned to personal acquaintances, including John Woolley, that she had made a complaint of a hostile work environment against Henke and the investigation was ongoing, but she did not provide any details. In November 2005, the citys human resources director found that "there had been no workplace harassment."
1. First Prong of Section 425.16 Inquiry
We conclude that Keeners conduct qualified as protected activity "in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . ." (§ 425.16, subd. (e)(2); see Lee v. Fick, supra, 135 Cal.App.4th at pp. 96-97; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009-1010, 1015; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) Activity as defined in subdivision (e)(2) of section 425.16 "does not require the defendant to show a public issue or issue of public interest." (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1395.) The purpose of subdivision (e)(2) of section 425.16 is to " `safeguard free speech and petition conduct aimed at advancing self-government, as well as conduct aimed at more mundane pursuits. Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding. " (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.) At issue here is a city employees complaint to the city council regarding the city managers investigation of allegations of workplace harassment made against an assistant fire chief. Contrary to Henkes contention, it is not comparable to the situation in Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1504, 1505-1511, which concerned a private employers investigation of sexual harassment claims against an employee pursuant to an internal company procedure.
Henkes argument that Keeners conduct was in violation of city policy regarding the disclosure of confidential personnel information does not necessarily remove it from the protection of section 425.16. Generally, "conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical." (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911; see Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) An exception to reliance on section 425.16 applies only if a defendant concedes, or the evidence conclusively establishes that the assertedly protected speech or petition activity was illegal as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) Here, Keener made no concession of any illegal activity. Nor has Henke submitted uncontroverted and conclusive evidence that Keeners conduct was illegal as a matter of law.
Under the city charter, the city manager is given authority over personnel matters, including the duty to investigate the operations of city departments and other agencies of the city. (Vallejo City Charter, § 500, subds (a), (i).) However, the city charter mandates that the city manager is "responsible to the [c]ouncil" for the administration of all city affairs placed in his charge by or under the charter or by ordinance not contrary to the charter. (Vallejo City Charter, § 500.) Consequently, how the city manager is carrying out his responsibility of investigating personnel complaints falls within the jurisdiction of the city council.
Contrary to Henkes contention, section 503 of the Vallejo City Charter does not mandate that personnel matters are not the proper subject of consideration or action by city council members. Section 503 provides that, "Except for the purpose of inquiry into the affairs of the City and the conduct of any City department, office or agency, the Council and its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager and neither the Council nor its members shall give orders to any officer or employee either publicly or privately nor shall they attempt to coerce or influence the City Manager in respect to any contract or purchase of supplies or any other administrative action or in any manner direct or request the appointment of any person to, or his removal from, office by the City Manager or his subordinates. Violation of the provisions of this Section by a member of the Council shall be a misdemeanor, conviction of which shall immediately result in forfeiture of the office of the convicted member." (Vallejo City Charter, § 503.) The purpose of section 503 "is to define the lines of authority within City government, not to prohibit protected speech" or petitioning activity. (Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, 1262.) Section 503 does not bar a city employee from informing council members about personnel matters pending before the city manager. Nor does section 503 or any other section of the charter prohibit council members from receiving information about the investigation of personnel matters pending before the city manager.
Henke also refers us to the declaration of Councilmember Pamela Pitts, who asserted that the city council "is not `ultimately responsible for `employee issues " and that the city council "has no authority under the City Charter to investigate or review allegations made by [Keener] that there was a `continuing pattern of workplace harassment by Assistant Fire Chief Kurt Henke towards [her]. " However, Henkes reliance on Pitts declaration is misplaced. Pitts assertions are inadmissible lay opinions concerning the legal effect of the city charter, which are not binding on this court. (See Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444-1446.)
Because Henke has not demonstrated by admissible evidence that Keeners conduct was illegal, "the claimed illegitimacy of [Keeners] acts is an issue which [Henke] must raise and support in the context of the discharge of [his] burden to provide a prima facie showing of the merits of [his] case." (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
2. Second Prong of Section 425.16 Inquiry
Henke argues that the declarations he submitted met his burden of establishing a probability of prevailing on his allegations against Keener based upon her dissemination of complaint letters to city council members and her comment to John Woolley about her "legal action" for "harassment" against Henke. We disagree.
Keeners complaint letters related to a personnel matter then pending before the city manager, who was responsible to the city council. The trial court found, and we concur, that Keeners dissemination of her complaint letters to city council members was protected by the Civil Code section 47, subdivision (b) privilege. (See Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at pp. 1250-1251.) Even if we assume Keeners conduct violated the citys confidentiality policy or privacy laws, the Civil Code section 47, subdivision (b) privilege protects the letters. Because a letter from a city employee to council members regarding the investigation of allegations of misfeasance or malfeasance by other city employees is not unlawful, "such a communication is privileged even if a specific communication might not be permitted by law because, for example, it was either perjurious or meant to be kept confidential." (Jacob B. v. County of Shasta, supra, 40 Cal.App.4th at p. 959.) The Civil Code section 47, subdivision (b) privilege bars all causes of action alleged against Keener, including the state constitutionally-based violation of right of privacy, relating to her dissemination of the complaint letters to the city council members. (Id. at pp. 960-961.) We also agree with the trial court that Keeners comment to Woolley that she had filed a legal action for harassment against Henke, without more, does not imply specific negative actionable facts against Henke.
II. Trial Courts Discovery and Evidentiary Rulings
A. Discovery Rulings
Henke challenges the courts order denying his request to depose Keener and City Manager Kemp. We review the courts order for an abuse of discretion (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593), and conclude that there is no basis for reversal.
"Section 425.16, subdivision (g) allows the court to permit specified discovery `for good cause shown on noticed motion. Decisions that have considered what constitutes such a showing of good cause have described it as a showing `that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case. [Citation.] The showing should include some explanation of `what additional facts [plaintiff] expects to uncover . . . . [Citations.] Only in these circumstances is the discretion under section 425.16, subdivision (g) to be `liberally exercise[d]. [Citation.]" (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593.)
Henke does not explain how depositions of Keener and Kemp would have led to the disclosure of information that would have permitted him to either demonstrate a prima facie case on any of his claims against the named defendants or negated defendants evidentiary submissions. Henke argues only that the depositions of Keener and Kemp were necessary to test or challenge the averments made by these witnesses in their declarations. However, "[d]iscovery may not be obtained merely to `test the opponents declarations. [Citation.]" (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593.) Our holding that the courts denial was not improper "subsumes and moots" Henkes additional contention "that refusal to order the deposition[s] engendered a denial of due process." (Id. at p. 593, fn. 18.)
B. Evidentiary Rulings
Henke contends the trial court erred in admitting and considering the detailed budget and related documents submitted by Pearsall and Schivley because those documents were not relevant to the defamation and privacy-based claims against those defendants. We conclude that Henkes argument is unavailing.
In determining whether the purported statements spoken by Pearsall and Schivley are actionable, the statements are not to be viewed in a vacuum. Both the trial court and this court are required to consider the circumstances giving rise to the publication of the allegedly defamatory statements. (See Franklin v. Dynamics Details, Inc., supra, 116 Cal.App.4th at p. 385; Scott v. McDonnell Douglas Corp., supra, 37 Cal.App.3d at p. 291, fn. 11.) Henke also ignores that his complaint puts at issue the political circumstances that preceded the purportedly defamatory statements spoken by Pearsall and Schivley. He specifically alleges that the purported defamation had its genesis in his political opposition to both Pearsalls candidacy for city council in 2003, and Schivleys candidacy for city council in 1997 and 2001, and in his earlier dealings with Schivley as a city council member. Consequently, in support of their special motion to strike, Pearsall and Schivley were free to submit documents to explain their understanding of the circumstances giving rise to the allegations in the complaint. On this record, we see no abuse of discretion in the court overruling Henkes relevancy objections to the documentary evidence submitted by Pearsall and Schivley.
DISPOSITION
The September 11, 2006, order granting defendants special motions to strike, the November 2, 2006, judgment in favor of defendants, and the January 16, 2007, order awarding attorney fees to defendants, are affirmed. The appeal from the order denying Henkes motion to strike Giulianis cost bill is dismissed. Defendants are awarded costs on appeal. The matter is remanded to the trial court to determine the proper amount of attorney fees to be awarded defendants on appeal. (See Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785.)
We concur:
Pollak, J.
Siggins, J.