Summary
In Hong v. Searles (Feb. 5, 2009, G040282) [nonpub. opn.] we affirmed an order granting the special motion to strike plaintiff Juan Hong’s complaint filed by the defendants in that case, including defendant Regents of the University of California, under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further statutory references are to this code).
Summary of this case from Hong v. Regents of the University of CaliforniaOpinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County No. 07CC11902, Gregory Munoz, Judge.
Juan Hong, in pro. per., for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Richard A. Paul and Marie A. Lavanier for Defendants and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Juan Hong sued defendants Regents of the University of California (Regents), Stanley Grant, Yi-San Chang-Yen, Marilyn Armentrout, William Schmitendorf, Patricia Price, Nicolaos Alexopoulos, professors or administrators at the University of California, Irvine (collectively the university), and Kari D. Searles and Richard A. Paul (collectively the lawyers) for breach of his right to privacy based on disclosure of his personnel file. The court struck the complaint under the anti-SLAPP statute (Code of Civil Procedure section 425.16; section 425.16). Plaintiff claims this was error because defendants did not act in furtherance of their rights to free speech and petition and he demonstrated he had a probability of prevailing on the merits. He also contends the court erred in awarding attorney fees to defendants and denying his request for same. We affirm.
FACTS AND PROCEDURAL HISTORY
This is the second appeal arising from the filing by plaintiff, a professor at the University of California, Irvine, of a whistleblower complaint after his merit increase was denied. The basis of that complaint and the events leading to denial of his claim are set out in our first opinion. (Hong v. Grant (Dec. 8, 2008, G039959) [nonpub. opn.].) As applicable to the instant case, plaintiff complains that his personnel file was transmitted to the hearing officer, Ellen Switkes, without notice to him and without his consent.
After his whistleblower complaint was denied plaintiff filed an action for damages and petition for writ of mandate, which were the subject of our opinion in Hong v. Grant. Plaintiff also filed an action in the United States District Court (Hong v. Grant (U.S. Dist. Ct., C.D.Cal., No. SACV06-134 CJC)), in which he named defendants Regents, Grant, Alexopoulos, Schmitendorf, and others, claiming that denial of his merit increase violated his federal constitutional right to free speech. The lawyers were retained to represent the defendants in the federal action. The lawyers sought plaintiff’s personnel file, and after the university transmitted it to them, they reviewed it and disclosed it to plaintiff in response to a discovery request.
Asserting that transmission of the file to Switkes and the lawyers, and the latter’s request for it, was unlawful conduct, plaintiff filed the current action, setting out five causes of action: (1) violation of his constitutional right to privacy against all defendants; (2) violation of the Information Practices Act of 1977 (Act; Civ. Code, § 1798 et seq.; all further statutory references are to this code unless otherwise specified), specifically for obtaining his file under false pretenses (§ 1798.56), against the lawyers; (3) disclosure of the contents of his personnel file to the lawyers against the university (§ 1798.53); (4) failure to keep an accounting of each disclosure of his file and failure to provide a copy of that log to him (§§ 1798.24, 1798.25, 1798.34, 1798.45) against the Regents; (5) and “civil conspiracy” against all defendants based on the same underlying acts. Defendants filed an anti-SLAPP motion, which the court granted as to all causes of action, awarding defendants attorney fees.
Additional facts are set out in the discussion.
DISCUSSION
1. Introduction
Section 425.16, subdivision (b)(1) provides that a cause of action against a person arising from an act in furtherance of a constitutionally protected right of free speech may be stricken unless the plaintiff establishes the probability he will prevail on the claim. The court must engage in a two-step analysis under this section. First it must determine whether the defendant has met its burden to show “that the challenged cause of action is one arising from protected activity.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If so, the burden shifts to the plaintiff to show the likelihood of prevailing on the claim. (Ibid.) We review an order granting an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.) “‘We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” [Citation.] However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citations.]” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1036.) The intent of the statute is to prevent “chill[ing] the valid exercise of . . . freedom of speech and petition . . . through abuse of the judicial process” and to that “end, th[e] section [is to] be construed broadly.” (§ 425.16, subd. (a).)
2. Act in Furtherance of Constitutionally Protected Right of Free Speech or Petition
a. Right of Petition and Free Speech
In filing their motion defendants relied on section 425.16, subdivision (e)(2), which provides that an “‘act in furtherance of a person’s right of petition or free speech’” is “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 . . . .”
Plaintiff contends defendants’ conduct is not protected by the anti-SLAPP statute because it was not in furtherance of their right to free speech or petition for redress of grievances. Plaintiff insists defendants engaged in no petitioning activity; rather, he claims, he is the one who was petitioning when he filed his whistleblower action. This argument is based on plaintiff’s fundamental misunderstanding of the right to free speech and petition.
The protection under section 425.16 “extends to conduct that relates to . . . litigation . . . .” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) “[C]ourts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ [Citation.]” (Ibid.) “Communications made in preparation for or in anticipation of the bringing of an action or other official proceeding fall within the ambit of these subdivisions. [Citation.]” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285, citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Additionally, “‘communicative conduct such as the filing, funding, and prosecution of a civil action[]’ [citation]” are included. (Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 609, citing Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Further, under its plain language the statute protects “all statements or writings made before, or in connection with issues under consideration by, official bodies and proceedings . . . .” (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1119.) Just as plaintiff’s filing of his whistleblower claim and district court action were an exercise of his right of free speech, so too were defendants’ investigation of and defense against plaintiffs’ complaints.
Despite plaintiff’s argument to the contrary, Vergos v. McNeal (2007) 146 Cal.App.4th 1387, on which the trial court relied, is instructive. There the plaintiff, a University of California employee, filed a civil rights action for sexual harassment against the defendant, the hearing officer who denied his administrative claim. The defendant filed an anti-SLAPP motion, asserting that the investigation, hearing, and decision on the plaintiff’s claim arose from activities in furtherance of her right to free speech or petition. The trial court denied the motion, finding that those actions did not constitute free speech or petition because the cause of action was not based on “the content of what [d]efendant stated in any proceeding . . . .” (Id. at p. 1394.)
The Court of Appeal reversed, agreeing that the defendant’s “statements and communicative conduct” were the gravamen of the cause of action against her and were “protected by section 425.16 because they (1) were connected with an issue under review by an official proceeding authorized by law, and (2) furthered the right to petition of plaintiff and similarly situated employees.” (Vergos v. McNeal, supra, 146 Cal.App.4th at p. 1394.)
Such is the case here. Defendants’ conduct in soliciting, transmitting, and reviewing plaintiff’s personnel file was part of the process of handling his whistleblower complaint and his district court action against various university personnel. The action that is the gravamen of the complaint was the university’s official investigation of complaints made by a public employee and the lawyers’ investigation and discovery in a lawsuit filed by a public employee. Further, both the whistleblower complaint and the federal court suit were official and legally authorized. (Vergos v. McNeal, supra, 146 Cal.App.4th at p. 1396 [Regents is constitutional institution with quasi-judicial powers and procedures, and rules have force of statute].) Likewise the Regents’ alleged refusal to provide an accounting of requests for plaintiff’s personnel file occurred as part of the defense of the federal court action. Additionally, as plaintiff emphasizes, both of his complaints further his right and those of others to petition. This interpretation is consistent with the statute’s mandated broad construction.
Plaintiff attempts to distinguish Vergos because defendants here did not act as investigators as did the defendant in that case. But this misses the point for which Vergos is being cited. It is not the capacity in which defendants acted but the fact that as defendants, their communications in investigating and defending against plaintiff’s two actions fall within the ambit of protected activity under section 425.16.
Another helpful case is Gallanis-Politis v. Medina, supra, 152 Cal.App.4th 600. There the plaintiff sued her employer, a municipal department, raising gender discrimination and civil rights claims. Medina and another employee were charged with investigating the allegations in the complaint. Upon completion of their investigation and report, the plaintiff amended the complaint to add a cause of action against them for retaliation. The appellate court reversed the denial of the defendants’ anti-SLAPP motion, holding in part that the investigation and the report were the basis for the plaintiff’s claim; without them there was “nothing of substance . . . upon which to base a retaliation claim . . . .” (Id. at p. 611.) It also held that those acts were in furtherance of the right of free speech and petition “because the investigation and report were conducted and written in response to a request for information from counsel . . . .” (Ibid.)
So too, here, the university’s transmission of plaintiff’s personnel file to the lawyers was in furtherance of the right of free speech. Likewise, the lawyers’ request for and review of the file and their transmission of it to plaintiff as part of discovery was in defense of their clients and thus in furtherance of plaintiff’s right to petition. (See Vergos v. McNeal, supra, 146 Cal.App.4th at p. 1394; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065 [action against attorney for acts on client’s behalf properly stricken under section 425.16]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 [same].) In addition, although plaintiff complained his personnel file was disclosed to Switkes without his notice or consent, he does acknowledge that under Vergos the trial court correctly ruled disclosure to Switkes, in her capacity as the investigator, fell within statutorily protected activity.
b. Communicative Conduct
A second ground for plaintiff’s challenge is that the procurement and transmission of his personnel file did not constitute communication. Communication is defined as “an act or instance of transmitting”; “a process by which information is exchanged . . . .” (Merriam-Webster Online Dict. ( [as of January 27, 2009]).) That exactly encompasses the gravamen of the complaint against the university for disclosure of the contents of plaintiff’s personnel file to Switkes and the lawyers and the lawyers’ inducement of disclosure.
At oral argument plaintiff directed us to Mansell v. Otto (2003) 108 Cal.App.4th 265, which states that merely reading the confidential psychiatric records of the plaintiff, a crime victim, was not a communication under the litigation privilege (§ 47, subdivision (b)(2)) because plaintiff did not allege in her complaint that the records were used in a judicial proceeding. (Mansell v. Otto, supra, 108 Cal.App.4th at p. 271.) In our case the complaint not only alleges that plaintiff’s file was transmitted and disclosed, but also that was done in the context of the official investigation of the whistleblower complaint and in the federal court case.
Similarly in People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 285 the court concluded that certain of defendants’ documents were not protected by section 415.16, subdivision (e)(1) and (2) because they were not used in an official proceeding. Such is not the case here.
3. Purported Per Se Illegality of Defendants’ Conduct
Attacking from another angle, plaintiff argues the motion should have been denied because defendants’ actions were illegal as a matter of law under article 1, section 1 of the California Constitution and the Act. Where, as a matter of law, defendants’ acts are illegal and thus not a valid exercise of their constitutional rights, they are not protected by section 425.16. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 459.) But if plaintiff cannot show as a matter of law that defendants’ acts are not protected by section 415.16, he must prove it as part of his prima facie case showing the merits of his claim. (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 910.) Here defendants have not conceded their acts were illegal. And as shown in the next section the acts were not illegal per se.
4. Plaintiff’s Prima Facie Case
Because defendants showed the challenged acts were conduct protected by section 425.16, the burden shifted to plaintiff to prove the likelihood he will prevail on the merits. He failed to do so because violation of privacy claims under the California Constitution and the Act are barred by waiver, defendants’ acts were not illegal per se, and plaintiff has not made a prima facie case to factually show that defendants’ acts were illegal.
a. Waiver
Plaintiff’s personnel file was transmitted to and reviewed by Switkes as part of the investigation of the whistleblower complaint and by the lawyers in defending the district court action plaintiff filed. As such, plaintiff put the contents of his file at issue and thus waived any expectation of privacy. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 841, 842 [in personal injury action, privacy right waived as to “directly relevant” information; and “privacy interests may have to give way to . . . opponent’s right to a fair trial”]; Evid. Code, § 996, subd. (a) [doctor-patient privilege waived where the plaintiff puts medical condition at issue]; Moscowitz v. Superior Court (1982) 137 Cal.App.3d 313, 319 [constitutional right of privacy in personal financial information waived to extent related to lawsuit for use by party having “legitimate interest” to defend against action].)
b. Alleged Illegality of Defendants’ Acts
Where as here plaintiff cannot show as a matter of law that defendants’ acts are not protected by section 415.16, he must prove it as part of his prima facie case by demonstrating either that defendants’ “‘“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.” [Citation.]’ [Citation.]” (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 910.) In other words, “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. If that were the test, the statute . . . would be meaningless.” (Id. at pp. 910-911, fn. omitted.)
The Constitution provides for a general right of privacy and the Act prohibits disclosure of personal information in certain specified instances. (§ 1798.24.) But the constitutional right to privacy does not apply to every disclosure of personal information. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 439 [“not every act which has some impact on personal privacy will give rise to a cause of action for violation of the state constitutional right of privacy”].) Three elements must be met to prevail on a claim for violation of a state constitutional invasion of privacy claim: “(1) identification of a specific, legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct by defendant constituting a serious invasion of privacy.” (Department of Fair Employment and Housing v. Superior Court (2002) 99 Cal.App.4th 896, 903.) In the first cause of action based on this theory, plaintiff is relying on the same conduct that he alleges constitutes a breach of the Act. As demonstrated below, he did not show that action was illegal as a matter of law or based on the facts of this case. Thus he did not meet his burden as to the first cause of action.
The remaining causes of action are based on the Act, which controls disclosure of personal information under certain circumstances. Section 1798.24 prohibits an agency from “disclos[ing] any personal information in a manner that would link the information disclosed to the individual to whom it pertains unless the information is disclosed, as follows: [¶] (a) To the individual to whom the information pertains. . . . [¶] . . . (d) To those officers, employees, attorneys, agents, or volunteers of the agency that has custody of the information if the disclosure is relevant and necessary in the ordinary course of the performance of their official duties and is related to the purpose for which the information was acquired.” As a matter of law, the university had the right to disclose plaintiff’s file to Switkes for her to handle the whistleblower complaint and to the lawyers to defend the federal court action because the information was necessary and relevant.
Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, on which plaintiff relied at oral argument, does not aid his cause. It makes a general statement that the federal Public Disclosure Act (5 U.S.C. § 552(b)(6)) and the California Public Records Act (Gov. Code, §§ 6250-6265) bar disclosure of personal information under certain circumstances. (Board of Trustees v. Superior Court, supra, 119 Cal.App.3d at p. 529.) Those circumstances are not present here.
Plaintiff argues disclosure to the lawyers was not proper because they were not attorneys, employees, or agents of the Regents. In support of the claim they are not the attorneys he relies on a statement in a copy of e-mail from defendant Armentrout to defendant Schmitendorf that identified Diane Geocaris as “Counsel to the Chancellor (and the Campus).” Assuming this is true it does not mean the lawyers are also not attorneys for the Regents. Surely plaintiff, a lawyer himself, should understand the Regents would have many attorneys.
Thus plaintiff cannot make a prima facie case for either the first or the third causes of action that claim the university’s transmission of the file to Switkes or the lawyers violated the Act.
The second cause of action against the lawyers is based on another portion of the Act, section 1798.56, which makes it a misdemeanor for someone to “willfully request[] or obtain[] any record containing personal information from an agency under false pretenses . . . .” Plaintiff alleges on information and belief the lawyers obtained his personnel file “under the disguise of legal proceeding[s].” Lawyers were required to engage in discovery in the federal court action and provided a copy of plaintiff’s file to him in response thereto. (Fed. Rules Civ.Proc., rule 26.) Plaintiff argues this rule did not authorize disclosure to the lawyers. This is just an incorrect reading of both section 1798.56 and rule 26.
Finally, the fourth cause of action alleges the Regents failed to keep a log of disclosures of plaintiff’s file to Switkes and the lawyers and did not provide that log to him. Plaintiff relies on section 1798.25, which requires that a record be kept for all disclosures made pursuant to section 1798.24, subdivisions (e), (f), (i), (k), (l), (o), and (p). Here the disclosures were made under subdivisions (a) and (d), so no log was required and there was none to be provided to him.
For all the same reasons the fifth cause of action for conspiracy fails. In sum, plaintiff did not show a probability he could prevail on the merits and the court properly granted the motion.
5. Attorney Fees
Plaintiff argues the court erred in ruling his motion for attorney fees moot because defendants’ motion was frivolous. As detailed above, the motion was proper and thus not frivolous, negating any right to fees by plaintiff. (§ 425.16, subd. (c) [if anti-SLAPP motion frivolous, mandatory attorney fees to prevailing plaintiff].) Although plaintiff did not challenge the award of fees to defendants in his opening brief, he disputes that in his reply brief. In any event fees were proper because “a prevailing defendant on a special motion to strike shall be entitled” to costs and attorney fees. (§ 425.16, subd. (c).)
DISPOSITION
The order is affirmed. Respondents are entitled to their costs on appeal.
WE CONCUR: ARONSON, J., FYBEL, J.