Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS00660
ROBIE, J.
This is the second appeal following a complaint filed by plaintiff Dane Ruddell against defendant George Viscia alleging defamation, intentional interference with prospective economic advantage, and intentional infliction of emotional distress. The complaint was based on a letter Viscia wrote and sent to at least one of Ruddell’s clients or prospective clients stating Ruddell had been terminated from his prior employment with a school district and engaged in questionable business dealings with at least two school districts.
Viscia filed a special motion to strike the complaint under Code of Civil Procedure section 425.16. The trial court denied the motion, concluding that Viscia failed to make a prima facie showing that the letter was connected to a public issue.
These lawsuits are commonly referred to as strategic lawsuits against public participation or SLAPP lawsuits. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 71-72.) Code of Civil Procedure section 425.16 is commonly referred to as the anti-SLAPP statute. (City of Cotati, at p. 72.)
In the first appeal, we disagreed with the trial court’s conclusion and reversed and remanded the matter to the trial court to determine whether Ruddell could demonstrate a probability of prevailing on his claims. (Ruddell v. Viscia (Aug. 31, 2006, C049043) [nonpub. opn.], pp. 12-13.) On remand, the trial court again denied the motion, concluding that Ruddell had “met his burden of demonstrating that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts.”
In this second appeal, we conclude Ruddell established a probability of prevailing on his defamation cause of action, but he did not establish a probability of prevailing on his intentional interference with prospective economic advantage and intentional infliction of emotional distress causes of action. We therefore affirm the trial court’s order as to the defamation cause of action and reverse the order as to the other two causes of action.
FACTUAL AND PROCEDURAL BACKGROUND
“We draw the following facts from the allegations in Ruddell’s complaint: Ruddell is a compliance officer and administrator of private and public works contracts. In 1996, while employed by 3D/International, providing management services for school programs, projects, and construction, Ruddell was offered a position as the director of facilities at the Lafayette School District. He accepted the position and worked there until August 1998, when he began working again for 3D/International in Dallas, Texas.
“In October 2001, Ruddell accepted a position as the assistant superintendent for facilities at the Antioch Unified School District. In 2002, the Antioch Unified School District awarded Haskell-3D/International a $12.7 million design-build contract. A design-build contract is one in which a single entity guarantees the price for designing and constructing a project, as opposed to one entity (an architect) designing the project for a fee and another entity (a general contractor) building the project for a separate fee. 3D/International is a promoter of design-build projects.
“In September 2002, Ruddell submitted his resignation as assistant superintendent to accept a position with USR Corporation. He withdrew the resignation when the Antioch Unified School District offered him the position of associate superintendent for facilities.
“In June 2003, Ruddell resigned as associate superintendent to form his own company, WCS/Ca, which provides labor compliance for public works projects.
“In July 2003, the Board of Education for the Antioch Unified School District approved an agreement between WCS/Ca and the school district ‘for professional services in connection with the Labor Compliance Program.’
“On August 19, 2003, Viscia ‘published’ an unsigned letter addressed to ‘All Labor Compliance Officers/Consultant Services’ that was read by the director of facilities at Chabot-Las Positas Community College District, the California State Superintendent’s Office, the superintendent of the Contra Costa County Office of Education, Senator Tom Torlakson, ‘other state and local agencies,’ and Ruddell’s competitors and clients.
“The letter alleged the following: Ruddell had been ‘let go’ after three months from his position at the Lafayette School District, which Viscia assumed was for ‘non acceptable performance of his duties’; when Ruddell was hired by the Antioch Unified School District, he began promoting the design-build concept, although legislation on the design-build concept was not enacted until January 1, 2002; in 2002, the Antioch Unified School District ‘[s]uspiciously’ became the first school district to award a $12 million design-build contract to 3D/International in partnership with The Haskell Company; Ruddell then tendered his resignation from the Antioch Unified School District and demanded more money; because the school district ‘did not have anyone’ and did not know how to handle a design-build project, the school district promoted him to associate superintendent and assigned him to oversee the design-build school project, which had now increased in price to $13 million; after the state had passed legislation pertaining to labor compliance programs and officers, the school district appointed Ruddell labor compliance officer and had him prepare a labor compliance program for the school district; after he completed writing the labor compliance program, he used it for community colleges and water districts throughout the state and formed Western Construction Services; Ruddell then tendered his resignation from the school district and, simultaneously, Western Construction Services was hired to provide labor compliance services to the school district.
“The letter concluded with the following: ‘Is this fair to all the other consultants [who] provide the same services to Contra Costa County, and I would like to point out that it is against State Law for “any Public Agency” to recommend a private or publicly held company to receive preferential treatment because of these recommendations. [¶] Are You Receiving a Fair Shake Under These Circumstances? [¶] See Enclosed!!’
“Enclosed were portions of the minutes from the Fontana Unified School District’s Board of Education meeting of July 24, 2002, and the Antioch Unified School District’s Board of Education meeting of July 16, 2003.
“The minutes from July 24, 2002, reflected the presence of Ruddell and a representative of the Haskell Company. There was a presentation on the ‘pros and cons of Design-Build and Traditional Design-Bid-Build’ and on recent legislation that allowed the design-build concept to be used in California. The Haskell Company representative then ‘provided information relative to the construction process used in Design-Build as well as the advantages,’ and Ruddell explained how the process had worked in the Antioch Unified School District. Handwritten on the minutes were notations stating, ‘Haskell/3DI partnership’ and ‘example of Haskell and Dane [Ruddell] promoting design build. Why would he do this and who pays?’
“The minutes from July 16, 2003, reflected the following in paragraph No. 8: ‘Approve Agreement between WCS/Ca, and Antioch Unified School District effective July 17, 2003, for professional services in connection with the Labor Compliance Program. [¶] This is Mr. Dane Ruddell’s firm; and this is one firm of two recommended to all districts in the county by the Contra Costa County Office of Education. In terms of a conflict of interest, Mr. Goettsch checked with legal counsel. There are no conflict of interest issues because Mr. Ruddell was employed by AUSD [Antioch Unified School District]. On motion by Mr. Olenchalk and seconded by Mrs. Seelinger, the board unanimously approved Item 8.’ Handwritten on this excerpt of the minutes were the following notations: ‘Dane Ruddell was for 10 years a vice president for 3DI Construction a design build specialist. He worked for Lafayette School District for 3 months[,] was terminated[, and] came to A.U.S.D. Does C.C.C.O.E. have the right to discriminate against 3rd party LCO or is this a misquote.’
“Because of this letter, the Antioch Unified School District canceled its contract with Ruddell, and he was ‘prevent[ed]’ from being hired by other school districts throughout the state, ‘thus destroying [his] credibility and reputation with current and potential clients.’
“Viscia filed a motion to strike the complaint under section 425.16, asserting Ruddell’s lawsuit was designed to chill his right to free speech in connection with a public issue, and Ruddell could not meet his burden of proving a reasonable likelihood of success on the merits of his claims.” (Ruddell v. Viscia, supra,C049043, at pp. 2-6.)
The trial court denied the motion because it believed Viscia failed to show that the alleged defamatory statements were made in connection with a public issue.
On appeal from the order denying the motion, we held that the trial court’s ruling was error because “Viscia met his burden of demonstrating that the matters discussed in the letter involved issues of public interest and, therefore, came within the ambit of the anti-SLAPP statute.” (Ruddell v. Viscia, supra,C049043, at p. 12.) We remanded the matter to the trial court “to determine whether Ruddell had established that there is a probability he will prevail on his claims.” (Id. at pp. 12-13.)
On remand, the trial court ruled that Viscia had not shown that the letter came under the official proceeding privilege or the common interest privilege. It further ruled that Ruddell “met his burden of demonstrating that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts.”
Viscia filed a timely notice of appeal from the trial court’s order denying his motion to strike the complaint. On appeal, he raises the following contentions: (1) in assessing the issues on appeal, we must look only to the one alleged defamatory statement in the letter that was pled in the complaint; (2) the letter is protected by the official proceeding privilege; (3) the letter is protected by the common interest privilege; (4) Ruddell did not establish a probability of prevailing on the defamation cause of action; and (5) Ruddell did not establish a probability of prevailing on the intentional interference with prospective economic advantage and the intentional infliction of emotional distress causes of action.
DISCUSSION
I
Overview Of The Anti-SLAPP Statute
The Legislature enacted section 425.16 to address “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) Under this section, a “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” is 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.” (Id., subd. (b)(1).)
“Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e).’ [Citation.] If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute--i.e., that arises from protected speech or petitioning and lacks even minimal merit--is a SLAPP, subject to being stricken under the statute.” (Id. at p. 89.)
To demonstrate a probability of prevailing, the plaintiff must “demonstrate that the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the plaintiff’s evidence is credited. [Citation.] The court considers the pleadings and the supporting and opposing affidavits stating facts on which the liability or defense is based, and the motion to strike should be granted if, as a matter of law, the properly pleaded facts do not support a claim for relief.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 901.)
An appeal is authorized from an order denying a special motion to strike. (§ 425.16, subd. (i).) On appeal, “[w]e review the trial court’s rulings on an anti-SLAPP motion de novo.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
II
In Assessing The Issues On Appeal, We Consider The Statements In The Letter And Enclosed Attachments That State Ruddell Was Terminated From His Job With The Lafayette School District
As a preliminary matter, Viscia contends that in assessing the issues on appeal, we should consider only one alleged defamatory statement in the letter -- that Ruddell was let go from his position with the Lafayette School District presumably for nonacceptable performance of his duties. As Viscia reads the complaint, it alleged only this one statement as the basis for Ruddell’s causes of action and did not include any claims based on the handwritten notations contained in the attachments to the letter. Viscia’s contention lacks merit.
In the portion of complaint for defamation, Ruddell alleged the following in paragraph 14: “On or about August 19, 2003, defendant[] VISCIA . . . published a letter addressed ‘To All Labor Compliance Officers/Consultant Services,’ defaming [Ruddell] through false statements, misrepresentations and unwarranted attacks. A copy of the letter is attached hereto as Exhibit ‘A’ and fully incorporated herein by reference.”
Ruddell alleged the following in paragraph 16: “[Ruddell] is informed and believes that [Viscia], being aware of the true facts, consciously chose to falsify the information contained within the letter, including the false statement that [Ruddell] was ‘let go’ from his position with the LSD for nonacceptable performance of his duties.”
Ruddell alleged the following in paragraph 17: “The letter is libelous on its face. It clearly exposes [Ruddell] to hatred, contempt, ridicule and obloquy in that it casts doubt and suspicion on [Ruddell]’s performance of his duties with LSD, that he somehow received preferential treatment from AUSA in being awarded a contract to provide labor compliance services for the district, and that [Ruddell] had an unfair advantage over other consultants.”
In the portion of Ruddell’s complaint for intentional interference with a prospective economic advantage, Ruddell “re-allege[d] all of the allegations contained in Paragraphs 1 through 20, inclusive, of this Complaint and incorporate[d] all allegations contained therein as though fully set forth herein.” In paragraph 24 of the same cause of action, Ruddell alleged that Viscia “intentionally and wrongfully disrupted the relationship between [Ruddell] and AUSD by publishing a defamatory letter, harming [Ruddell]’s reputation. [Viscia] made these statements knowing that they were untrue.”
In the portion of Ruddell’s complaint for intentional infliction of emotional distress, Ruddell “re-allege[d] all of the allegations contained in Paragraphs 1 through 26, inclusive, of this Complaint and incorporate[d] all allegations contained therein as though fully set forth herein.” In paragraph 28 of the same cause of action, Ruddell alleged that “[o]n or about August 19, 2003, [Viscia] published defamatory statements pertaining to [Ruddell].”
Ruddell did not attach exhibit A to the complaint when it was filed on February 23, 2004. On June 3, 2004, however, he amended the complaint to include the letter and the “enclosed” documents referenced in the letter consisting of the minutes from the Fontana Unified School District’s Board of Education meeting of July 24, 2002, and the Antioch Unified School District’s Board of Education meeting of July 16, 2003.
The letter contained the statement that Ruddell “worked as a Construction Manager under 3/DI for Lafayette Unified School District, a position became available with the school district and he was accepted for the position, but he was let go after only completing three months of his six months probationary period, I would assume for non acceptable performance of his duties. As we all know you can talk your way into a position but if you don’t know what you are doing you will be ‘typically’ terminated.”
Handwritten on the minutes enclosed with the letter were notations made by Viscia about Ruddell. Handwritten on the minutes from the July 16 excerpt of the minutes were the following notations: “Dane Ruddell was for 10 years a vice president for 3DI Construction a design build specialist. He worked for Lafayette School District for 3 months[,] was terminated[, and] came to A.U.S.D. Does C.C.C.O.E. have the right to discriminate against 3rd party LCO or is this a misquote.”
Contrary to Viscia’s argument, Ruddell did not “add allegations after the filing of a special motion to strike.” Rather, he amended his complaint to add the letter and attachments he had specifically referenced in his complaint before Viscia filed his motion to strike the complaint. Ruddell’s stated purpose for filing the amended complaint was to attach the letter that he had “inadvertently omitted . . . from the [c]omplaint at the time of filing.” Therefore, Ruddell was not “‘us[ing] an 11th-hour amendment to plead around a motion to strike under the anti-SLAPP statute,’” as Viscia claims, but rather, Ruddell was amending the complaint to attach an exhibit he had inadvertently omitted. The materials contained in the exhibit are therefore fairly encompassed within the complaint as amended.
Also contrary to Viscia’s argument, we do not read the complaint narrowly to challenge only Viscia’s statement that Ruddell was let go from his position with the Lafayette School District presumably for nonacceptable performance of his duties. Even according to the case Viscia cites, the pleading does not have to state the exact defamatory language “so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)
Here, the substance of the defamatory statements was sufficiently pled in paragraph 16 when Ruddell alleged Viscia falsified information in the letter, “including” (therefore, not limited to) that Ruddell was “‘let go’” and in paragraph 17 when Ruddell alleged that Viscia’s letter “casts doubt and suspicion on [Ruddell’s] performance of his duties with LSD, that he somehow received preferential treatment from AUSA in being awarded a contract to provide labor compliance services for the district, and that [Ruddell] had an unfair advantage over other consultants.” These allegations also apply to the other two causes of action, as the complaint specifically incorporated the allegations in these paragraphs to all of Ruddell’s causes of action.
We do, however, consider only the statements having to do with Ruddell’s alleged termination from the Lafayette School District. This is not because of any lack of pleading in the complaint but, rather, because the only prima facie showing Ruddell attempted to make in his opposition and supplemental opposition to the motion to strike centered around the falsity of Viscia’s assertions that Ruddell was terminated from the school district.
With this understanding of the complaint and prima facie showing in mind, we turn to the other issues on appeal.
III
The Official Proceeding Privilege Does Not Apply
Viscia contends the trial court erred in denying his motion to strike Ruddell’s complaint because the letter was privileged under Civil Code section 47, subdivision (b) (Civil Code 47(b)), which defeats any prima facie showing Ruddell may make on the three causes of action. We disagree that the official proceeding privilege applies.
Civil Code 47(b) provides an absolute privilege to publications or broadcasts made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],” with certain statutory exceptions not applicable here.
“‘[T]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.’” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364.) It has been interpreted to provide protection to “communications with ‘some relation’” to an official proceeding. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193.)
Central to the application of this privilege here is determining to whom the letter was actually sent, for if the letter was sent to people or entities not somehow connected or related to an official proceeding, then the privilege would not apply. In this regard, Viscia makes two contentions: one, communications to private parties are privileged if “logically connected to an official proceeding,” such as to seek support for a proposed complaint; and two, the “only evidence” of private parties receiving the letter “were two people Ruddell conceded were competitors,” and letters sent to competitors were covered by the privilege because competitors had an interest in the Antioch Unified School District’s approval of the contract with Ruddell. Ruddell, on the other hand, contends that included among the people to whom Viscia sent the letters were Ruddell’s clients, and no purpose was served by sending his clients the letter other than to injure him and his business.
To resolve these issues, we first look to whether there was evidence that Viscia sent the letter to any of Ruddell’s clients or prospective clients. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614 [in SLAPP cases, courts look to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment, and a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence.])
In support of Ruddell’s opposition to the motion to strike the complaint, Ruddell presented the declaration of Dana LeSher, which provided evidence that the letter was sent to one of Ruddell’s clients or prospective clients. In the declaration, LaSher stated the following: LaSher is “a current Vice President at Harris & Associates” and prior to that was the “Vice President of Pacific Program Management which merged into Harris & Associates”; both companies are privately held and “are agency construction management businesses for both private construction projects as well as public construction projects”; “Dane Ruddell and his company are in a service business which Harris & Associates utilize in its business”; on or about August 21, 2003, LaSher received at the office an envelope containing the August 19, 2003, letter with attachments; “[t]he envelope bears a postage mark indicating that it was sent from Oakley California on or about August 20th”; and [t]he contents of the envelope included typed and handwritten comments indicating that Dane Ruddell was fired from his job at Lafayette School District.”
Ruddell also presented the following evidence that it was Viscia who sent the letter: in response to an interrogatory, Viscia confirmed that he lives in Oakley, California; in a deposition, Viscia admitted he does not always sign his name to documents he authors; and in the same deposition, Viscia admitted that it was his handwriting on the notes on the minutes attached to the August 19 letter.
The letter and attachments sent to LeSher were not signed and the envelope in which they were sent did not have a return address.
Taken together, the evidence we have just recounted was sufficient at this stage to show that Viscia sent the August 19 letter and attachments to at least one of Ruddell’s prospective clients.
Viscia claims that the letter was sent not to members of the public but to competitors and cites a portion of Ruddell’s declaration. That portion of Ruddell’s declaration states: “Shortly after I began my own company, I received information from others that a letter had been mailed, consistent with the subject matter of the letter attached to the Declaration of Dana LaSher, to substantially all Labor Compliance Officers/ Consultants who are both competitors and prospective clients of mine.” This evidence has no bearing on the evidence Ruddell put forth showing that LaSher was one of his clients or prospective clients and received the allegedly defamatory letter from Viscia.
Having so established, we turn to whether Viscia can claim the official proceeding privilege when he sent the letter to one of Ruddell’s clients or prospective clients. To argue that he can, Viscia relies on cases that have upheld the application of the official proceeding privilege even though the communication was sent to private parties. (Cayley v. Nunn (1987) 190 Cal.App.3d 300; Kashian v. Harriman (2002) 98 Cal.App.4th 892.) The rationale of those cases does not apply here, as we will discuss below.
In Cayley, the defendants were circulating a neighborhood petition to potential petition signers seeking support for an appeal to the city council for a height variance when the defendants made defamatory statements about the Cayleys, who were opposing the variance. (Cayley v. Nunn, supra,190 Cal.App.3d at pp. 302-303.) The appellate court held that the statements made by the defendants to other private citizens while the defendants were marshaling evidence and preparing for their presentation at the city council meeting were within the official proceeding privilege. (Id. at p. 304.)
In Kashian, the defendant sent to St. Agnes Medical Center and the Local Health Care Coalition -- two organizations with which the defendant was joining to request of the Attorney General an investigation of the community hospital (for which the plaintiff was the chairman of the board of trustees) -- a copy of a letter alleging the community hospital engaged in unfair business practices and interfered with the professional medical practices of private practitioners with the goal of driving them out business, so that the community hospital could acquire the business of competing physicians and medical groups. (Kashian v. Harriman, supra, 98 Cal.App.4th at pp. 899-901, 903.) The letter also requested the Attorney General investigate a possible conflict of interest between the plaintiff’s private business interests and his role as chairman of the board of trustees. (Id. at p. 901.) The court held that the sending of the letter to St. Agnes Medical Center and the Local Health Care Coalition was protected by the privilege in Civil Code 47(b) because “communications made between private parties preparatory to or in connection with an ‘official proceeding’ are absolutely privileged.” (Kashian, at p. 930.) “St. Agnes and LHCC both were parties to the request to the Attorney General for an investigation into Community’s tax-exempt status. It follows that their communications with one another in that connection were protected by the . . . privilege.” (Ibid.)
In contrast to these two cases, it cannot plausibly be argued that Viscia sent the letter to at least one of Ruddell's prospective clients to gather evidence or “prod official action,” as Viscia contends, based on claims in the letter that consultants might have been unfairly passed up for the position that Ruddell got, or that school districts and Ruddell might have inappropriately entered into a contract with one another. Unlike the recipients of the alleged defamatory materials in Cayley and in Kashian, Ruddell’s clients or prospective clients would not be part of this claim nor would a client or prospective client reasonably be expected to have evidence relating to the claims. While we are mindful that the official proceeding privilege is to be construed broadly (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37), it is not without limits. It cannot be said to encompass the situation here where at least one of the recipients had no relationship whatsoever to the letter and attachments at issue.
IV
The Common Interest Privilege Does Not Apply
Notwithstanding the applicability of the official proceeding privilege, Viscia contends the trial court erred in denying his motion to strike Ruddell’s complaint because the letter was privileged under Civil Code section 47, subdivision (c) (Civil Code 47(c)). We disagree because Viscia presented evidence that the letter was sent with malice.
Civil Code 47(c) provides a privilege to publications or broadcasts made “without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”
In the context of Civil Code 47(c), malice means either hatred or ill will, or lack of reasonable grounds for believing the statement true. (See Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413.) To defeat the common interest privilege of Civil Code 47(c), a plaintiff must make the showing of malice. (Cabanas v. Gloodt Associates (1996) 942 F.Supp. 1295, 1301.)
Ruddell has made the required showing of malice to defeat the privilege. Ruddell produced deposition testimony in which Viscia admitted the following: Viscia knew the statement in the letter that Ruddell was let go from his position at Lafayette School District after completing only three months of a six-month probationary period was false because Ruddell “wasn’t let go three months after his six-months’ probationary period”; Viscia had “never heard of a six-month probationary period” and the period of time Ruddell was on probation was not three months; and Viscia did not “have any understanding as of August 2003 that [Ruddell] was let go because of unacceptable performance of his duties.” This evidence showed that Viscia lacked reasonable grounds for believing the statements at issue in the letter and attachments were true, and therefore Ruddell showed the requisite malice to defeat applicability of the common interest privilege of Civil Code 47(c) without regard to whether all of the recipients of Viscia’s mailings were or were not “interested.”
V
Ruddell Has Shown A Probability Of Prevailing On His Defamation Cause Of Action
To prevail on a defamation cause of action, a plaintiff must prove the following elements: “the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.) If the plaintiff is a public figure, he must also establish that the defendant acted with actual malice, that is, knowledge of falsity or reckless disregard for the truth or falsity of the defamatory statements. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253.)
Here, Viscia contends that Ruddell has not shown a probability of prevailing on his defamation cause of action because he has not pled and/or proved the following: (1) the letter contained a false and defamatory statement; (2) the letter caused him actual damage, which Ruddell was required to show because the letter was not libelous per se; and (3) the letter was sent with actual malice, which Ruddell was required to show because he was a public figure. We consider these contentions in turn, rejecting each on its merits.
We have already rejected Viscia’s argument based on an alleged lack of pleading in part II of the Discussion, ante.
A
Defamatory Statements
Viscia contends that the alleged defamatory statement that Ruddell was “let go” from the Lafayette School District “after only completing three months of his six months probationary period” was not “actionabl[y] false.” He stresses that the statement was qualified by the phrase, “I would assume for non acceptable performance of his duties,” and the letter did not say Ruddell was fired, so a reader could just as easily interpret the statement as meaning Ruddell was “not a good fit for the particular job, or that he was laid off because of budgetary problems, or that no effort was made to keep him when he expressed an interest in leaving.” Therefore, according to Viscia, the statement simply “invites further investigation.” We are not persuaded.
To determine whether Ruddell made a prima facie showing that the statements in the letter and attachments regarding Ruddell’s employment history with the Lafayette School District constituted a provably false factual assertion, we look at the totality of the circumstances, including the language used, the context in which it was made, and the knowledge and understanding of the audience to whom it was directed. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809-810.)
On the issue of Ruddell’s employment with the Lafayette School District, the letter stated that Ruddell “was accepted for the position, but he was let go after only completing three months of his six months probationary period, I would assume for non acceptable performance of his duties. As we all know you can talk your way into a position but if you don’t know what you are doing you will be ‘typically’ terminated.” Handwritten on the minutes enclosed with the letter was a notation that Ruddell “worked for Lafayette School District for 3 months[,] was terminated[, and] came to A.U.S.D.” Ruddell provided evidence that the letter was mailed to at least one of Ruddell’s clients or prospective clients.
In our view, a client or prospective client of Ruddell’s who was reading the letter and the attachments would have concluded that the author was making a factual assertion that Ruddell was terminated from his job at the Lafayette School District after three months of a six-month probationary period because he did not know what he was doing. While the letter stated that Ruddell was “‘let go,’” and qualified that phrase with the statement “I would assume for non acceptable performance of his duties,” the letter itself went on to state that what “we all know,” which is that “you can talk your way into a position but if you don’t know what you are doing you will be ‘typically’ terminated.” Moreover, the handwritten notation on the minutes specifically stated that Ruddell was terminated.
Ruddell produced evidence that these statements were false. In a declaration, Ruddell stated he was not fired from the Lafayette School District. In a deposition Viscia admitted that Ruddell “wasn’t let go three months after his six-months’ probationary period,” the period of time Ruddell was on probation was not three months, and Viscia did not “have any understanding as of August 2003 that [Ruddell] was let go because of unacceptable performance of his duties.”
Undaunted, Viscia claims that although the statement about the three months was false, its “‘gist’” was true -- that Ruddell worked for the Lafayette School District for only a short time. Viscia misperceives the “‘gist’” of the alleged defamatory statements, namely, that Ruddell was terminated from the Lafayette School District after completing only half of his probationary period because he did not know what he was doing. This was not true. Therefore, the statements in the letter and attachments relating to Ruddell’s employment with the Lafayette School District were false, and Ruddell made the requisite prima facie showing as to this element of the cause of action.
B
Libel Per Se
Viscia contends that Ruddell failed to establish a probability of prevailing because he did not offer evidence of special damages, which he had to do because the letter and attachments were not defamatory on their face. We disagree because the letter and attachments were libelous per se.
There are two types of libel -- libel per se and libel per quod. “A statement is libelous ‘per se’ when on its face the words of the statement are of such a character as to be actionable without a showing of special damage. A libel ‘per quod,’ on the other hand, requires that the injurious character or effect be established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 153-154.) The statutory definition of libel per se is broad and includes “almost any language which, upon its face, has a natural tendency to injure a person’s reputation, either generally, or with respect to his occupation.” (Bates v. Campbell (1931) 213 Cal. 438, 441.)
With these standards in mind, we find that the statements at issue in the letter and attachments were libelous per se. As we have explained, the letter and attachments inform a client or prospective client that Ruddell had been terminated from his job at the Lafayette School District after three months of a six-month probationary period because he did not know what he was doing. These statements reflected poorly on Ruddell’s abilities in the workforce (Patton v. Royal Industries, Inc. (1968) 263 Cal.App.2d 760, 766) and had a “natural tendency” to injure Ruddell’s reputation “with respect to his occupation” (Bates v. Campbell, supra, 213 Cal. at p. 441). Ruddell therefore did not need to plead and prove special damages.
C
Public Figure And Actual Malice
If a plaintiff is a public figure, he is held to a higher standard when proving his defamation cause of action, i.e., he must prove by clear and convincing evidence that the defamatory statement was made with actual malice, that is, knowledge that it was false, or with reckless disregard for the truth. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706]; see Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1445-1446.) “This heightened standard of proof must be taken into account in deciding a defendant’s motion to strike a claim for defamation under section 425.16.” (Walker, at p. 1446.)
An individual qualifies as a public figure if he is either an all purpose public figure or a limited purpose public figure. (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.) “The all-purpose public figure is one who has achieved such pervasive fame or notoriety that he or she becomes a public figure for all purposes and contexts. The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.” (Ibid.) For a plaintiff to qualify as a limited purpose public figure, the following three elements must be present: (1) a public controversy; (2) a voluntary act undertaken by plaintiff through which he sought to influence resolution of the public issue; and (3) relevance of the alleged defamation to the plaintiff’s participation in the controversy. (Ibid.)
Here, Ruddell qualifies as a limited purpose public figure because all three elements are present. One, there was a public controversy on “the issues of Ruddell’s alleged improper relationship or influence with the Antioch Unified School District and with other school districts and of whether the districts were giving preferential treatment to companies affiliated with him.” (Ruddell v. Viscia, supra, C049043, at p. 11.) Two, Ruddell voluntarily thrust himself into this controversy by seeking for his company, WSC/Ca, an agreement with the Antioch Unified School District that his company would provide “professional services in connection with the Labor Compliance Program” despite an alleged conflict of interest based on Ruddell’s former employment at the Antioch Unified School District. And three, the alleged defamation related to Ruddell’s deficient performance while an employee of the Lafayette School District, which would be relevant to whether his company was qualified to provide services to another school district.
As a limited public figure, then, Ruddell had to prove by clear and convincing evidence that Viscia made the defamatory statements with actual malice. (Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 256.) Ruddell has made a prima facie showing of malice. As we have explained, Ruddell produced deposition testimony in which Viscia admitted he knew the statement in the letter and attachments that Ruddell was let go from his position at Lafayette School District after completing only three months of a six-month probationary period was false, and when the letter was written in August 2003, Viscia did not “have any understanding . . . that [Ruddell] was let go because of unacceptable performance of his duties.” This evidence showed that Viscia made the statements in the letter and attachments knowing they were false or with a reckless disregard for the truth.
VI
Ruddell Has Not Shown A Probability Of Prevailing On His Remaining Causes Of Action
On appeal, Viscia contends that Ruddell did not show a probability of prevailing on his two remaining causes of action for intentional interference with a prospective economic advantage and intentional infliction of emotional distress. He argues that Ruddell failed to present evidence on one or more elements of these causes of action and on appeal fails to address these causes of action. Viscia is correct.
Once the defendant establishes the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Here, at no point in his papers in the trial court or in his brief before this court does Ruddell attempt to establish his probability of prevailing on the two remaining causes of action. As a result, the trial court erred in denying the motion to strike the remaining two causes of action.
DISPOSITION
The order denying the motion to strike is affirmed as to the first cause of action (defamation) in Ruddell’s complaint. The order is reversed as to the second (intentional interference with a prospective economic advantage) and third (intentional infliction of emotional distress) causes of action, and the trial court is directed to enter a new order granting the motion to strike as to those causes of action. Each party is to bear his own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: BLEASE, Acting P.J., SIMS, J.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.