Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC501069, Gary B. Tranbarger, Judge.
Law Offices of Clyde DeWitt, Clyde F. DeWitt, Jeffrey F. Allen and Michael McCoy for Defendants and Appellants.
Albrecht & Albrecht and W.E. Jon Albrecht for Plaintiff and Respondent.
OPINION
RICHLI, J.
Plaintiff Dave Taylor was terminated by defendant Distinctive Industries, Inc. (Distinctive). He then filed this action, alleging that Distinctive and other defendants had stated falsely to customers and competitors that he had misappropriated company funds of Distinctive and had competed with Distinctive. Taylor also alleged — albeit awkwardly and seemingly as an afterthought — that defendants had made similar false statements to the state Employment Development Department (EDD) and that these had prevented him from collecting unemployment.
Defendants appeal from the trial court’s order denying their special motion to strike the complaint (SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (SLAPP statute). They argue that the complaint arose out of their alleged statements to the EDD, and hence out of statements in connection with an official proceeding. They further argue that Taylor failed to establish a probability that he would prevail on his claims.
We will hold that, while the complaint was indeed based, in some small part, on defendants’ statements to the EDD, those statements were not the gravamen of the complaint. Accordingly, the trial court correctly denied defendants’ SLAPP motion.
I
PROCEDURAL BACKGROUND
Taylor filed this action against Distinctive; Aaron Forrister, the president of Distinctive; Dave Edmondson, the vice president of Distinctive; and Tracy Katzin, an employee of Distinctive. The complaint asserts three causes of action: slander, intentional interference with economic advantage, and intentional infliction of emotional distress.
Roadwire Automotive Innovation, also named as a defendant, is actually a fictitious business name used by Distinctive, and not a separate entity.
The complaint alleges that, in July 2006, Distinctive hired Taylor as its national sales manager. His written employment contract included a covenant not to compete during his employment. At some unspecified time, defendants made false and defamatory statements about Taylor. These statements were to the effect that he had misappropriated funds from Distinctive and had been competing against Distinctive. The statements were made to Car Stereo Plus, Pecca Leather, unnamed customers and competitors of Distinctive, and others. Thereafter, on March 3, 2008, Distinctive terminated Taylor, purportedly for misappropriating funds from Distinctive and for competing against it.
In connection with all three causes of action, the complaint alleges that Distinctive “filed a response to Plaintiff’s EDD claim for unemployment benefits, asserting misconduct by [Plaintiff].” The first cause of action, for slander, contains no further allegations regarding defendants’ statements to the EDD. The second cause of action, for intentional interference with economic advantage, alleges that the EDD denied Taylor’s claim on the ground that he had been terminated for competing with Distinctive. The third cause of action, for intentional infliction of emotional distress, incorporates this allegation.
Defendants filed a SLAPP motion, arguing that (1) all three causes of action were “predicated upon” statements made to the EDD and hence made in connection with an official proceeding; and (2) Taylor could not show a probability of prevailing because all of defendants’ alleged statements were not only true but also privileged under the common interest privilege, Civil Code section 47, subdivision (c).
The trial court denied the motion.
II
FACTUAL BACKGROUND
The following facts are taken from the declarations submitted in support of and in opposition to the SLAPP motion.
Aaron Forrister, president of Distinctive, and Dave Edmondson, vice president of Distinctive, both testified that Taylor had used a company credit card to buy passes to Disneyland. When confronted, Taylor claimed that he had given the passes to one “Manny,” who worked for a customer of Distinctive. Distinctive contacted Manny, who denied that Taylor had ever given him any Disneyland passes. Distinctive also discovered that Taylor had used a company credit card to buy a computer for his personal use and to maintain a personal vehicle. On March 3, 2008, Forrister terminated Taylor for misappropriating company funds and for competing against Distinctive.
Carol Walsh owned South Side Trim, a customer of Distinctive. She testified that on March 3, 2008, Edmondson told her that Taylor had been terminated for “misappropriat[ing] funds on the company credit card for personal use.” Edmondson made this statement “out of the clear blue sky.”
Joey Johnston was an employee of Tops & Trends, Inc. He testified that on March 3, 2008, Edmondson told him that Taylor had been terminated for “purchasing Disneyland passes on a company credit card.” Johnston had not solicited this information.
John Gengler owned Coach Auto Restyler. He testified that, on an unspecified date, Edmondson told him that Taylor had been “terminated for misappropriation of company funds and not acting in the best interest of the company.” Gengler had not solicited this information.
Defendants did not object to the Walsh declaration. Defendants did object to the key portions of the Johnston and Gengler declarations on grounds of “[n]o foundation” and “hearsay.” The declarants, however, were testifying to conversations that they had personally had with Edmondson. Moreover, Edmondson’s statements were obviously not offered for their truth. Thus, these objections were frivolous.
Edmonson admitted telling two unspecified “entities” that Taylor had been terminated for misappropriating company funds. He explained, however, that both entities had “business relationships” with Distinctive and that both of them had “made inquiries of [him] about... Taylor’s termination.”
Taylor denied misappropriating funds from Distinctive. He added, however: “I..., like many of my fellow colleagues[,] have inadvertently use[d] the [company] credit card for personal use but have always reimbursed the [c]ompany....” “Admittedly, like other employee card holders, through oversight or inadvertence [I] have missed a reimbursement.” He described Distinctive’s statements that he was trying to hire away its employees as “false[]” However, he did not otherwise deny competing with Distinctive.
III
DEFECTS OF THE RESPONDENT’S BRIEF
Preliminarily, defendants contend that Taylor’s respondent’s brief is defective because (1) it was filed late, (2) it fails to cite factual matter to evidence in the record, and (3) it discusses matter outside the record.
The brief was not filed late. We granted Taylor an extension of time through June 10, 2009. Even if he failed to file his brief by that date, however, he was entitled to notice of his failure to file, followed by an automatic 15-day extension of time. (Cal. Rules of Court, rule 8.220(a).) He filed his brief on June 11, 2009. At that point, no notice had gone out. Thus, this was timely.
We do agree that the brief betrays either ignorance or disregard of fundamental appellate procedures. We also deplore its rancorous and accusatory tone. Even if Taylor had failed to file a respondent’s brief at all, however, defendants would not win by default (In re Bryce C. (1995) 12 Cal.4th 226, 232-233); it would still be their burden to demonstrate error affirmatively. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 70.) Accordingly, while Taylor’s brief may not have helped his cause much, we cannot conclude that it has hurt it.
IV
GOVERNING LEGAL PRINCIPLES
The SLAPP statute provides: “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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)
An “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” is defined as including: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)
“[I]n ruling on a [Code of Civil Procedure] section 425.16 motion to strike, a court generally should engage in a two-step process: ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 703.) “‘Review of an order granting or denying a motion to strike under [Code of Civil Procedure] section 425.16 is de novo. [Citation.]’” (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
V
THE COMPLAINT DOES NOT ARISE OUT OF PROTECTED ACTIVITY
Defendants contend that the complaint arises out of their response to the EDD, and hence out of statements made in an official proceeding.
“‘[T]he principal thrust or gravamen of a cause of action determines whether the anti-SLAPP statute applies. [Citation.] “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability — and whether that activity constitutes protected speech or petitioning.” [Citation.] The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint. [Citation.]’ [Citation.]” (United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1625.)
Here, the complaint is plainly aimed at the false and defamatory statements that defendants made to customers and competitors of Distinctive. It alleges that these statements accused Taylor of misappropriating funds of Distinctive and of competing against Distinctive; that they were intended to damage his reputation in the industry; and that they did in fact damage his business relationships. Those allegations cannot be referring to statements that defendants made to the EDD, which were unlikely to damage either his business relations or reputation.
The allegations regarding defendants’ statements to the EDD appear to be an afterthought. Indeed, there is never any plain allegation as to what those statements were. In connection with the first cause of action, it is merely alleged that defendants accused Taylor of “misconduct”; there is no allegation regarding the nature of the misconduct and no allegation that the accusation was false. Thus, there is no plain allegation that defendants’ statements to the EDD constituted slander.
In connection with the second cause of action, it is additionally alleged that the EDD ultimately denied Taylor’s claim for unemployment benefits on the ground that he had competed with Distinctive. Thus, while there is still no plain allegation of the content of defendants’ statements to the EDD, it is inferable that defendants stated that he had competed with Distinctive. Moreover, while there is still no plain allegation that defendants’ statements to the EDD were false, this can be inferred from the express allegations that similar statements to others were false. Accordingly, it does appear that the second and third causes of action are based on defendants’ statements to the EDD, but only in part. These statements are, at best, a makeweight; they are in no way the gravamen of any of the causes of action.
Defendants do not appear to contend that, to the extent that the complaint is based on their alleged statements to persons other than the EDD, the complaint is nevertheless within the scope of the SLAPP statute. Certainly they raised no such argument below. We deem them to have forfeited this contention.
Admittedly, defendants do contend that, for purposes of the second step of the inquiry — the probability that the plaintiff will prevail — those statements were privileged under the common interest privilege, Civil Code section 47, subdivision (c). However, “Civil Code section 47 states a statutory privilege, not a constitutional protection.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 324; see also Garretson v. Post (2007) 156 Cal.App.4th 1508, 1518 [Fourth Dist., Div. Two] [Code Civ. Proc., § 425.16 and Civ. Code, § 47 are not necessarily “coextensive or congruent”].) Hence, we cannot view this as an argument that defendants’ statements to others were protected activity for purposes of the first step of the inquiry.
In any event, those statements were not made in or in connection with any official proceedings, as Code of Civil Procedure section 415.16, subdivisions (e)(1) and (e)(2) would require; moreover, they were not made in connection with any public issue or issue of public interest, as Code of Civil Procedure section 415.16, subdivision (b)(1) would require in all other cases. (See Rezec v. Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135, 140-143; see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.) Thus, they were not protected under the SLAPP statute.
We therefore conclude that the trial court did not err by denying defendants’ SLAPP motion.
VI
DISPOSITION
The order appealed from is affirmed. Taylor is awarded costs on appeal against defendants.
We concur: HOLLENHORST, Acting P.J., KING, J.