Opinion
G057315
02-14-2020
ORANGE COUNTY EMPLOYEES ASSOCIATION, Plaintiff and Respondent, v. FRANK FLAVIN, Defendant and Appellant.
Ochoa Law and Ricardo Ochoa for Defendant and Appellant. Theodora Oringher, Todd C. Theodora, Gaurav Reddy, Bradley Dugan and Andrew Prout for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2018-00971797) OPINION Appeal from an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Ochoa Law and Ricardo Ochoa for Defendant and Appellant. Theodora Oringher, Todd C. Theodora, Gaurav Reddy, Bradley Dugan and Andrew Prout for Plaintiff and Respondent.
Frank Flavin transitioned from being a worker represented by the labor union, Orange County Employees Association (OCEA), to a labor representative working for OCEA. Later he was instrumental in decertifying OCEA, convincing approximately 800 employees to become members of a competing labor union. In response to OCEA's lawsuit against him, Flavin filed an anti-SLAPP motion. (§ 425.16.) The court denied the motion, concluding the undisputed evidence raised a reasonable inference of wrongdoing. On appeal, the parties do not dispute the first prong of the SLAPP statute was satisfied, i.e., the challenged claim arose from constitutionally protected speech/activity. The only issue we must resolve is the second prong, which was whether OCEA demonstrated a probability of prevailing on the merits. Flavin contends the court erred in rejecting his anti-SLAPP motion, explaining the court failed to apply the proper burden of proof necessary to satisfy the second prong. We disagree and affirm the order.
"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTUAL BACKGROUND
Flavin worked as a probation officer from 1996 to 2008, and he was a member represented by OCEA. He served on OCEA's board of directors from 2004 to 2008. From 2008 to 2015, Flavin worked as a OCEA labor representative. It is undisputed Flavin had access to OCEA's confidential and proprietary information.
OCEA is a large public sector union, representing approximately 18,000 workers in various cities and districts in Orange County. In September 2017, OCEA's rival labor union, the Association of Orange County Deputy Sheriffs (AOCDS), filed petitions on behalf of five different bargaining units (Bargaining Units) to decertify and sever all classifications to OCEA. The Bargaining Units, comprised of approximately 850 employees working in different locations in Orange County, wanted to be members of AOCDS.
The Bargaining Units were the Probation Services Unit (PSU), the Probation Supervisory Management Unit (PSMU), the Coroner Investigators, the Public Assistance Investigators, and the Park Rangers. --------
OCEA discovered the Bargaining Units organized the move over to AOCDS in a remarkably short time. They also learned Flavin, who had become disgruntled with OCEA before his retirement, played a pivotal role in the decertification. Flavin retired after OCEA's general manager passed him over and appointed Jennifer Beuthin to be the next general manager. Flavin retired the same day Beuthin became general manager.
Despite his retirement, Flavin continued to assist OCEA represented employees without the union's authorization. After one year, OCEA's assistant general manager, Charles Barfield, contacted Flavin and admonished him to stop holding himself out as a labor representative.
Two years after his retirement, Flavin began working with AOCDS to decertify OCEA. Flavin admitted he spoke with some public safety employees about changing their union representation to a different organization, but he "never knowingly used or disclosed OCEA's confidential, proprietary, or trade secret information." He claimed he used public records and information the employees provided about their co-workers and their working conditions.
Suspicious of the short time it took to convince over 800 workers to organize and change unions, OCEA filed a lawsuit alleging eight causes of action for breach of duty of loyalty and confidentiality, violation of Penal Code section 496, trade secret misappropriation, intentional interference with prospective economic advantage, intentional interference with contractual relations, unfair competition in violation of Business and Professions Code section 17200, constructive fraud, and breach of confidential relationship.
Flavin filed an anti-SLAPP motion to strike the first amended complaint (FAC), arguing that during his employment with OCEA he did not try to decertify the union, and after he retired he "did not knowingly keep any OCEA property" and "never knowingly" copy or destroy files. Flavin asserted that during his efforts to decertify OCEA, he "did not knowingly use any confidential, trade secret or proprietary information of OCEA."
In its opposition to the anti-SLAPP motion, OCEA alleged Flavin misappropriated confidential property and trade secret information, and used the information to decertify OCEA. It alleged Flavin improperly held himself out as an OCEA representative to gain access to secure workplace locations. Further, it maintained Flavin violated his duty of loyalty by planning for the decertification campaign while still employed. To support the opposition, OCEA submitted several declarations and other documents. Below we have briefly summarized the contents of these declarations, omitting information Flavin objected to and that the court agreed should be striken.
I. Charles Barfield
Barfield, who was OCEA's assistant general manager, declared he had 30 years of experience in the labor relations field. He was Flavin's direct supervisor from 2013 to 2015. He made the following assertions: "During his employment with OCEA . . . Flavin had access to OCEA's confidential and proprietary information, including member lists of specific bargaining units. In addition, . . . Flavin was educated and trained on bargaining unit-specific data, including the terms and conditions of employment within each bargaining unit and the classifications included in each bargaining unit. [F]lavin also had access to an OCEA database showing which OCEA members were enrolled in OCEA's legal defense fund."
Barfield recalled several statements Flavin made about Beuthin's qualifications and that he should have been elevated to general manager. Flavin said, "he knew best about how to organize bargaining units for peace officers."
After Flavin retired, Barfield remembered the following events: (1) "In October 2016, I spoke to . . . Flavin at a meeting of the State Coalition of Probation Organizations in San Diego and demanded that he stop attempting to represent OCEA members. [F]lavin stated that he would try not to assist any OCEA members any longer"; (2) On July 31, 2017, Barfield sent a letter to Brenda Diederichs, the Chief Human Resources Officer of the County of Orange and explained "OCEA had confirmed . . . Flavin had, in the weeks prior to the date of the letter, conducted meetings with [PSU] employees and other employees to generate support for decertification. I further explained that the meetings had regularly occurred during work hours on County property, often in secure areas in which . . . Flavin should have been prevented from even entering"; (3) on August 9, 2017, Barfield sent a letter to Linn Livingston, the Assistant Director of Human Resource Services for the County of Orange, explaining "Flavin was not authorized to represent OCEA employees in any way in connection with its representation of County employees"; and (4) at the end of August, Barfield sent a second letter to Diederichs, where he "referenced the fact that OCEA had received several recent reports . . . Flavin continued to approach OCEA members at their desks at work during work hours in an effort to generate support to decertify OCEA as the PSU's exclusive bargaining representative."
II. Jennifer Beuthin
As OCEA's general manager, Beuthin declared she joined OCEA in July 2010, and was promoted to general manager in 2015. She stated, "In his role as an OCEA board member and as an OCEA Labor Relations Specialist . . . Flavin had access to confidential and sensitive proprietary information belonging to OCEA, including, inter alia, a database of OCEA members, information on health and welfare benefits provided to OCEA members, member lists for individual OCEA bargaining units, member contact information, and member employment information (including timekeeping locations). As an OCEA board member, . . . Flavin also had access to the results of audits of OCEA."
Beuthin declared Flavin received employee handbooks and manuals advising OCEA's "methods of operation and strategies, financial matters, and information related to the personal lives of members" was confidential and could only be shared with other staff members. In addition, Beuthin recalled that in April 2015, she sent Flavin a "'memo of expectations'" clarifying he could not discuss OCEA operations, staff members, or internal strategies" with the board of directors or OCEA members. Beuthin submitted a copy of an e-mail she prepared that memorialized the events of a meeting where Flavin discussed the possibility of decertifying OCEA while he was still employed by OCEA.
Beuthin discussed several incidents that suggested Flavin improperly disclosed confidential information. She explained that while Flavin was employed he represented OCEA at the State Coalition of Probation Organizations (SCOPO) meetings. Flavin helped OCEA members set up a fund to process SCOPO's expenses, collect dues, host meetings, and represent probation members. During his employment, he also coordinated with members of the PSU and PSMU regarding SCOPO activities, i.e., meetings and conferences. Flavin would make "internal requests" for SCOPO to provide funds for expenditures related to these activities. After Flavin retired, a PSU executive committee member (Denise Hernandez) knew about the SCOPO fund and OCEA's staff traveling budget. Beuthin stated that because Hernandez was not an OCEA board member, she should not have known about the fund. Moreover, after decertification, AOCDS's legal counsel wrote OCEA's president a letter asking him to transfer fees collected in the SCOPO fund. She inferred Flavin told AOCDS about the fund.
Additionally, Beuthin recalled Flavin "told me directly that he spent time at the Orange County property following his employment at OCEA, both to talk to members about general issues that arose, and on at least two occasions, to represent them in matters with the County without OCEA's authorization." Beuthin stated OCEA notified the Orange County employers "formally and informally" that Flavin was not an authorized OCEA representative.
III. Nick Berardino
Berardino was OCEA's general manager while Flavin was an employee and discussed his long-term career with the union, working from 1973 to 2015, and currently serving as a senior advisor. "Based on my 45 years of experience in labor organization, I know what it takes to organize workers for a certification process. I have done so myself on numerous occasions. Based on this experience, it is my professional opinion . . . Flavin could not have accomplished the decertification of [five] different bargaining units within OCEA, covering over 800 public employees at over 15 different locations around Orange County, without using proprietary information belonging to OCEA." He explained Flavin had access to confidential information "OCEA had gathered, organized, and maintained over years of serving Orange County's public employees [and t]his information was not made available to the public, or to anyone outside of a select few at OCEA[.]"
Berardino stated the confidential proprietary information included the following: (1) "lists of members, their home address, home and work telephone numbers, work locations, schedules, and internal union leadership;" (2) "names and contact information for executive committee members of each of the bargaining units;" (3) "OCEA budget;" (4) funding levels for [SCOPO] accounts for probation officers; (5) "money collected for Peace Officers Research Association of California ('PORAC'), a defense fund for law enforcement, including how much to charge members;" and (6) the "identity of, and history with, political contacts, including confidential profiles created for each political leader and where OCEA was stronger and weaker on bargaining." Berardino declared he told Flavin "on at least a weekly basis" the information must be kept confidential.
Berardino recalled Flavin appeared to be loyal to OCEA when he was a board member and during his employment, but "began exhibiting certain changes in behavior after . . . Beuthin became Assistant General Manager of OCEA, and heir-apparent to me, that suggests to me his loyalty was not what it appeared." After Beuthin became the assistant general manager, Flavin "spoke openly of his dislike" of Beuthin and said she was too young and inexperienced for the job. Berardino remembered Flavin questioned everything Beuthin did as manager. "He spoke openly about his grudge against me for choosing a younger female over an older, more experienced male like himself." When Berardino selected Beuthin as his successor and that she would take over the following day, Flavin announced he was retiring and he was not going to spend a single day under Beuthin's leadership.
After Berardino resigned, he continued working as a senior advisor for OCEA. In this position, Berardino knew OCEA personnel had told Flavin to stop "playing the role of a maverick labor representative." He also recalled OCEA members alerted public employers about Flavin.
In 2017, Berardino learned Flavin was actively trying to decertify OCEA. Berardino stated he had previously led decertification and recertification processes for multiple employee groups. He knew from experience it was a time consuming and a difficult process. "As an illustration: To organize 50 to 100 employees in 1 work location to decertify their existing union, and recertify under one alternative union, can take at least [one] year, sometimes longer. [¶] [T]hat is because it takes time to identify all of the employees, learn their work schedules so that you know when to approach them, find their contact information so that you know how to reach them, identify their leaders so you know who are the influencers, identify where the existing union is weak compared to the alternative union, create the cost comparisons on dues so that the alternative union makes sense financially, acclimate all of the members to the idea of leaving their existing union, acclimate all of the members to the idea of choosing one specific alternative union (as opposed to the many alternative unions available), know which political affiliations to promote (and which to downplay) so as not to offend members, and finally get all of the members to sign decertification cards for the existing union and sign certification cards for the new union. And this assumes that all of the employees are in [one] work location. If the employees are across multiple work locations, you have to find the different work locations and then know when to be at each of the different locations, across each of the different employee schedules, so that you can make contact with all of the employees. For all of these reasons, organizing 50 to 100 employees in [one] work location to decertify their existing union, and recertify under one alternative union, can take at least a year, and sometimes longer. [¶] [Flavin] accomplished this entire process of decertification and recertification for approximately 800 employees across more than 15 work locations in about [three] months. He accomplished this for approximately 800 employees across more than 15 work locations in the months of July, August, and September 2017. He reached employee groups as different as deputy coroners and park rangers, supervising probation officers and welfare fraud investigators. The employees were spread across more than 15 different locations in Orange County, varying from Juvenile Hall to OC Parks, Manchester Office Building to Orange County Superior Courts. And [Flavin] was able to get more than 90 [percent] of all 800-plus employees across [five] bargaining units covering more than 15 locations to sign decertification cards of OCEA and sign certification cards for one alternative union, AOCDS, in a matter of months."
Berardino opined, "The only way [Flavin] could have caused all [five] bargaining units covering more than 800 employees in more than 15 locations to decertify with one union and recertify with another union in only [three] months' time is through using the existing union's data. Particularly for peace officers, such as the probation officers, public employees' contact information and profiles are confidential, so it is very difficult and time-consuming to get all of their data. But with OCEA's trade secrets, [Flavin] already had all of the data on who the employees are, how to contact them by home and work phone, where they are located, when they work, who their leaders are, who their influencers are, what their existing costs are, what they like about their existing union (OCEA), what they dislike about their existing union, which political affiliations are critical to which groups of employees, and where they live, by taking that proprietary collection of information from OCEA."
After evaluating all the evidence and counsel's arguments, the trial court determined OCEA met its burden of showing a probability of prevailing on all causes of action except the second cause of action (for violation of Penal Code section 496). In its minute order, the court ruled, "[OCEA's] evidence, if accepted as true, supports reasonable inferences that [Flavin] may be liable on the challenged causes of action. The evidence tends to show [Flavin] worked for [OCEA] and sat on its board, gaining access to confidential information that would be helpful in organizing a competing union. [Citations to declarations]. It also tends to shows [Flavin] grew critical of [OCEA] and left to organize a competing union. [Citations to declarations]. And it shows [Flavin's] competing union succeeded in drawing away [OCEA] members and supplanted [OCEA] as the representative for various bargaining units—doing so with remarkable ease. [Citations to declarations]. [Flavin] thus had the means, motive, and opportunity to breach his duties to [OCEA], misappropriate its trade secrets, and interfere with its economic advantage and contractual relations. The evidence supports a reasonable inference that [Flavin] did so. While [OCEA] lacks a smoking gun and [Flavin] offers denials and exonerating evidence, the bar '"is 'not high.'"' [Citation.] [OCEA] evidence is sufficient to survive an anti-SLAPP challenge."
DISCUSSION
Flavin asserts the trial court applied the wrong evidentiary standard of proof. He maintains that in analyzing OCEA's probability of prevailing under the second prong of the anti-SLAPP statue, the court should have used the same evidentiary burden used for summary judgment, directed verdicts, and nonsuit motions. He explains that for those motions, the opposing party must introduce admissible evidence and cannot rely "on conjecture drawn from the thinnest of inferences." Flavin concludes the court's ruling was impermissibly based on tenuous inferences and due to the ambiguous nature of the evidence, this court should grant the anti-SLAPP motion. We disagree.
I. Applicable Legal Principles
"We review de novo an order granting a special motion to strike under . . . section 425.16. [Citation.] In doing so, we independently determine each of the two prongs of anti-SLAPP analysis: (1) whether the defendant has shown that a cause of action arises out of an act done in furtherance of the defendant's exercise of a right to petition or free speech under the United States or California Constitution; and, if so, (2) whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.] The defendant bears the burden of proof on the first prong; the plaintiff on the second. [Citations.]" (Teamsters Local 2010 v. Regents of University of California (2019) 40 Cal.App.5th 659, 665.)
The parties agree the current lawsuit arises out of protected activity, and we are concerned here with only the second prong of the analysis. In conducting our review, we consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) 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." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
As pointed out by Flavin, there are numerous cases drawing comparisons between a court's inquiries regarding the second prong as being akin to its review of a summary judgment motion. While there are similarities, the standards are not identical. "An anti-SLAPP suit motion is not a substitute for a demurrer or summary judgment motion." (Lam v. Ngo (2001) 91 Cal.App.4th 832, 851, fn. 12.) In opposing an anti-SLAPP motion, a "plaintiff need not produce evidence that he or she can recover on every possible point urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should deny the special motion to strike and allow the case to go forward." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 905 (Wilbanks); see also Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062.)
"An anti-SLAPP-suit motion is not a vehicle for testing the strength of a plaintiff's case, or the ability of a plaintiff, so early in the proceedings, to produce evidence supporting each theory of damages asserted in connection with the plaintiff's claims. It is a vehicle for determining whether a plaintiff, through a showing of minimal merit, has stated and substantiated a legally sufficient claim." (Wilbanks, supra, 121 Cal.App.4th at p. 906.) Accepting all of plaintiff's favorable evidence as true, "'we determine whether plaintiff has met the required showing, a showing that is "not high." [Citation.]'" (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 348.)
It is well settled, an anti-SLAPP motion should be granted only where the claim "lacks even minimal merit." (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 796.) In considering whether a claim has "minimal merit," the court should consider "properly submitted admissible evidence" and "a court evaluating a probability of success should draw any non-speculative inferences favorable to the plaintiff. [Citations.]" (Id. at p. 795, italics added.) We agree with Flavin's assertion that speculative inferences unsupported by the evidence cannot be used to defeat summary judgment motions or anti-SLAPP motions, but reject any notion the standard should be higher in the anti-SLAPP context. To the contrary, because the anti-SLAPP motion is filed before discovery, and summary judgment motions are generally filed after discovery, courts "must accept all evidence favorable to the plaintiff as true and indulge every legitimate favorable inference that may be drawn from it. Only when no evidence of sufficient substantiality exists to support a judgment for the plaintiff may the defendant's motion be granted. [Citation.]" (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 828 (Wilcox), disapproved of on other grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, fn. 5.)
II. Analysis
As noted by the trial court, the undisputed evidence tends to show Flavin gained access to confidential information that would be helpful in organizing a competing union. Flavin does not dispute the evidence showing he became critical of OCEA, and after leaving the organization, he helped a competing union organize and recruit approximately 800 members from OCEA. Based on past personal experience and expertise, Berardino declared decertification by such a large number of members, from numerous locations, in just three months was remarkable. Opinion testimony by a lay witness is admissible if, as in this case, "it is based on the witness's perception and helpful to a clear understanding of the witness's testimony." (Osborn v. Mission Ready Mix (1990) 224 Cal.App. 3d 104, 112.) Likewise, "'An expert's opinion is admissible when it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." [Citation.]'" (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 354; see also Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947 [at anti-SLAPP motion phase courts may consider affidavits and declarations if reasonably possible evidence will be admissible at trial]; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189 [expert declarations need not be detailed or extensive for pre-trial motions where courts must liberally construe evidence].)
From the undisputed facts in this case, we can make several reasonable inferences. We agree with the trial court the evidence tended to show Flavin had the "means, motive, and opportunity" to breach his duties, misappropriate trade secrets, and interfere with OCEA's economic advantage and contractual relations. Flavin asserts the evidence was too ambiguous to support a finding it is "'more likely than not'" he misused the confidential information. However, that is not the applicable standard. Flavin has borrowed language from a summary judgment case discussing the element of causation in the context of expert opinion testimony in a landlord negligence action. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 488 ["we hold that a tenant's negligence action against her landlord for injuries resulting from the criminal assault of a third person must be supported by evidence establishing that it was more probable than not that, but for the landlord's negligence, the assault would not have occurred"].) In that case, the expert's opinion on causation was rejected because it was based on speculative factors and there was evidence "the assault could have occurred even in the absence of the landlord's negligence[.]" (Ibid.)
Facts relating to Flavin's ease of access, motive, and timing was not ambiguous. We must "indulge every legitimate favorable inference that may be drawn from" the evidence. (Wilcox, supra, 27 Cal.App.4th at p. 828.) We appreciate Flavin's argument that other "benign inferences" can be taken from this evidence. He can raise and discuss those other reasonable inferences as part of his defense at trial. However, at this early stage of the proceedings, for purposes of the second prong of the anti-SLAPP motion, OCEA satisfied its burden of proving minimal merit to its claims of wrongdoing.
Our Supreme Court's decision in Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811 (Oasis), is instructive. In that case, defendant was an attorney who represented plaintiff in gaining approval from the city council for a redevelopment project, and after he stopped representing plaintiff, defendant became involved in efforts "to thwart the same redevelopment project by soliciting signatures on a referendum petition to overturn the . . . [c]ity [c]ouncil's approval of the project." (Id. at p. 815.) Plaintiff's complaint alleged causes of action for fiduciary duty, professional negligence, and breach of contract against defendant and his law firm. (Ibid.) The appellate court determined plaintiff's claims arose from protected activity and it failed to demonstrate a probability of prevailing. The Supreme Court disagreed, concluding plaintiff had "stated and substantiated the sufficiency of its legal claims." (Id. at p. 816.)
"The complaint identifies a number of acts of alleged misconduct and theories of recovery, but for purposes of reviewing the ruling on an anti-SLAPP motion, it is sufficient to focus on just one. [Plaintiff] contends that [defendant], as its lawyer, was 'a fiduciary . . . of the very highest character' . . . . [Citation.] Among those fiduciary obligations were the duties of loyalty and confidentiality, which continued in force even after the representation had ended. [Citation.]" (Oasis, supra, 51 Cal.4th at p. 821.) The court noted plaintiff had alleged defendant breached his fiduciary duty because he acquired confidential information relating to the redevelopment project "particularly during team meetings that discussed matters of strategy with respect to the city council, other city officials, and civic organizations, and that [defendant] then used this information when he actively opposed the precise project he had been retained to promote." (Id. at pp. 821-822.)
Our Supreme Court explained, "Although [plaintiff] does not offer direct evidence that [defendant] relied on confidential information in formulating his opposition or in crafting his plea to his neighbors to join him in opposing the project, the proper inquiry in the context of an anti-SLAPP motion 'is whether the plaintiff proffers sufficient evidence for such an inference.' [Citations.]" (Oasis, supra, 51 Cal.4th at p. 822, italics added.) Because it was undisputed defendant agreed to represent plaintiff in securing the city council's approval for the project, acquired confidential information during his representation of plaintiff, and then publically opposed the same redevelopment project "it is reasonable to infer that he did" misuse confidential information. (Ibid.) Moreover, because the attorney did not disclose to plaintiff a personal interest or relationship that would affect his professional judgment (as required by the State Bar Rules of Professional Conduct) "it is likewise reasonable to infer that [defendant's] opposition to the project developed over the course of the representation, fueled by the confidential information he gleaned during it." (Ibid.) The court concluded that based on the evidence presented "and the inferences therefrom, we conclude that [plaintiff] has demonstrated a likelihood of prevailing on each of its three causes of action." (Ibid.) The court rejected defendant's evidence suggesting there was no direct evidence of wrongdoing, stating, "Our task is solely to determine whether any portion of [plaintiff's] causes of action have even minimal merit within the meaning of the anti-SLAPP statute. A claim that [defendant] used confidential information acquired during his representation of [plaintiff] in active and overt support of a referendum to overturn the city council's approval of [plaintiff's redevelopment project], where the council's approval of the project was the explicit objective of the prior representation, meets that low standard." (Id. at p. 825.)
Similarly, here OCEA presented undisputed evidence Flavin obtained confidential evidence when he represented the interests of the union and its members and the information would help facilitate reorganization of the members into a competing union. Flavin admits he became critical of OCEA's management and, soon after his bitter resignation, he facilitated a highly organized campaign to decertify the union he once faithfully represented. One witness, highly experienced in the industry, declared Flavin accomplished in just three months what typically required over a year (without the misuse of confidential information). It is reasonable to infer that having both the opportunity and motive, Flavin's opposition to OCEA was fueled by the information he learned while working there, and it is also reasonable to infer he misused OCEA's confidential information to decertify it and certify under AOCDS. Thus, based on the evidence, and favorable inferences therefrom, we agree with the trial court's conclusion OCEA demonstrated the required minimal level of merit within the meaning of the anti-SLAPP statute.
III. Evidentiary Objections
Flavin asserts the court "upheld a number" of his objections, but failed to specifically rule on several objections to Berardino's declaration. He cut and pasted sections from his trial brief listing four sections of testimony at issue, along with corresponding arguments regarding admissibility.
This argument misstates the record. The trial court's minute order specifically addressed Flavin's evidentiary objections. The court ruled as follows: "In response to defendant's objections, the following material is stricken . . . ." The court listed over 25 sections (relating to three different declarations) and each section matched one of Flavin's specific evidentiary objections. We can safely presume the court sustained those objections even though the court did not use the word "sustained." Likewise, the remaining sections listed in Flavin's evidentiary objections, which were not included in the court's list of material stricken, were presumably overruled.
Flavin asks this court to conduct a de novo review of the trial court's evidentiary rulings, citing Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) The case is inapt. It held that when a motion for summary judgment has been granted, "'we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.'" (Ibid.)
It is well settled, "We review the trial court's evidentiary rulings made in connection with a summary judgment motion for abuse of discretion." (Mitchell v. United National Ins. Co. (2005) 127 Cal.App. 4th 457, 467.) Similarly, we "review a ruling on an evidentiary objection in connection with a special motion to strike for abuse of discretion. [Citation.]" (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348, fn. 3.) Flavin does not suggest how the trial court abused its discretion by overruling his objections. We find no error.
DISPOSITION
The order is affirmed. Plaintiff shall recover its costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. GOETHALS, J.