Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC355826, Helen I. Bendix, Judge.
Henry M. Lee Law Corporation and Henry M. Lee for Defendant and Appellant.
Lowe & Baik, Jeffre T. Lowe and John A. S. Baik for Plaintiff and Respondent.
PERLUSS, P. J.
Mee Hee Sunny Choi, a former director and shareholder of Mirae Bank, appeals from an order denying her special motion to strike under Code of Civil Procedure section 425.16 directed to each of the three causes of action (for defamation, intentional infliction of emotional distress and injunctive relief) asserted in the complaint filed against her by Theodore C. Yoon, the former chairman of the board and major shareholder of Mirae Bank. We affirm.
Statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
Mirae Bank is a California state-chartered community bank formed in 2002 and headquartered in Los Angeles. On June 15, 2006 Mirae Bancorp was created as a holding company for Mirae Bank. Mirae Bancorp has more than 200, but fewer than 500 shareholders; its stock is not publicly traded.
Yoon, a prominent member of the Korean-American community in Los Angeles, was chairman of the board of directors of Mirae Bank from July 2004 until July 2006, following Mirae Bancorp’s acquisition of 100 percent of Mirae Bank. Yoon was a substantial shareholder of Mirae Bank and continues as a major shareholder of Mirae Bancorp, but is not a member of Mirae Bancorp’s board of directors.
Choi was a shareholder of Mirae Bank and is now a shareholder of Mirae Bancorp. Choi served as a member of the board of directors of Mirae Bank until July 24, 2006 (the date of the annual meeting of shareholders at which time her term expired).
2. Choi’s July 12, 2006 Letter to Mirae Bank Shareholders
A joint board meeting of the Mirae Bank and Mirae Bancorp directors on June 21, 2006 was the last regularly scheduled meeting of the Mirae Bank board. Pursuant to the governing bylaws, at the meeting the current board members voted (nine-to-three with Yoon, as chairman, abstaining) to reduce the number of authorized Mirae Bancorp directors from 13 to seven. The current board then identified seven nominees to be recommended at the annual shareholders meeting on July 24, 2006. Choi was not one of the seven nominees.
On July 12, 2006 Choi sent a letter to all Mirae Bancorp shareholders on Mirae Bank stationery in which she stated, “As a director and shareholder of Mirae Bancorp., I would like to report several illegal conducts of the Theodore C. Yoon, a board member and a major shareholder.” The letter asserted Yoon had engaged in “illegal and tyrannous behavior [that] undermines the rights of stockholders” and accused him of “insider trading and manipulation of the bank’s stock”; directing the destruction of bank documents relating to the unlawful sale of stock by Yoon to members of his family; and abusing his authority as chairman of the board to reduce the number of directors to seven and to submit his own set of proposed nominees. Choi closed her letter by requesting an investigation of Yoon’s actions: “Because the bank will be presenting all of Mr. Yoon’s proposed changes for formal approval at the 2006 annual meeting of shareholders of Mirae Bancorp. on July 24, 2006[,] I sincerely ask that you as a stockholder immediately initiate investigation of Mr. Yoon misconduct.”
3. Yoon’s Complaint
On July 21, 2006 Yoon filed a complaint against Choi for defamation, intentional infliction of emotional distress and injunctive relief, alleging several letters written by Choi in July 2006 and addressed to Mirae Bank officers, directors and shareholders contained false charges of criminal acts, dishonesty and improper and immoral conduct that damaged his reputation with the bank’s shareholders and in the Los Angeles Korean-American community in general. Yoon furthered alleged Choi had published the letters with malice to seek revenge against Yoon for his decision not to call a special board meeting of Mirae Bank as Choi had requested. In his cause of action for injunctive relief, Yoon alleged Choi continues to defame and harass him in an effort to harm his reputation and asserts her actions are causing irreparable injury for which monetary damages cannot afford adequate relief.
4. Choi’s Section 425.16 Special Motion To Strike
On August 18, 2006, before answering or otherwise responding to Yoon’s complaint, Choi filed a special motion to strike pursuant to section 425.16, the anti-SLAPP statute, asserting that each of the three causes of action arises from acts in furtherance of Choi’s right of free speech in connection with a public issue or an issue of public interest (§ 425.16, subd. (e)(4)) and that Yoon cannot establish a probability of prevailing on the merits because the statements at issue “were privileged and true.” With respect to the claim of privilege Choi contended her statements -- from a director and shareholder to other board members and shareholders -- were all protected by Civil Code section 47, subdivision (c)’s interested-person privilege. Although recognizing this privilege is conditional only, Choi argued the evidence did not support a showing of malice that would defeat the privilege. In support of her motion Choi submitted her own declaration, which attached a copy of her July 12, 2006 letter to Mirae Bancorp shareholders and averred the statements in the letter are true and were communicated to other shareholders and directors as a matter of public interest and without any intent to injure Yoon.
SLAPP is an acronym for “strategic lawsuit against public participation.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
Yoon filed an opposition to the motion to strike, including declarations from Yoon and three Mirae Bancorp directors who stated they had knowledge of the events discussed in Choi’s July 12, 2006 letter. Yoon’s opposition argued Choi’s letter did not involve a public issue or issue of public interest and, therefore, his complaint was not properly subject to a special motion to strike. Alternatively, Yoon argued the declarations submitted in his opposition papers adequately demonstrated the probable validity of his claims. For example, the declarations directly disputed Choi’s claim Yoon had sold stock to family members or otherwise engaged in “insider trading” or had ever directed the destruction of documents relating to stock transactions and contained a dramatically different account of the process by which the decision was made to reduce the number of Mirae Bancorp directors.
In a reply memorandum Choi responded to Yoon’s arguments; noted that Yoon had not addressed her argument the July 12, 2006 letter was conditionally privileged under Civil Code section 47, subdivision (c); and argued for the first time the letter was absolutely privileged under Civil Code section 47, subdivision (b), because Choi had requested the California Department of Financial Institutions and the Federal Deposit Insurance Corporation initiate investigations into Yoon’s alleged misconduct prior to writing the July 12, 2006 letter to shareholders: “[T]he letters to the government agencies as well as the letter to the shareholders all related to the same issue of investigating and/or initiating administrative proceedings against the Plaintiff. The letters were created to further the objects of the possible administrative proceedings and had some connection to those possible proceedings.” Choi’s counsel included his own declaration with the reply memorandum that attached a copy of a letter from the Securities and Exchange Commission (SEC) acknowledging receipt of Choi’s complaint.
The letter states, “We are taking your complaint very seriously, and have referred it to the appropriate people within the SEC,” but advises that SEC investigations are confidential and the agency “neither confirms nor denies the existence of an investigation unless we bring charges against someone involved.”
5. The Order Denying the Special Motion To Strike
The trial court posted a tentative ruling, heard oral argument and denied the motion to strike. At the hearing the court commented the question whether Yoon’s complaint arises from Choi’s protected speech activity within the meaning of section 425.16 might be “a case of first impression”: “It is an interesting issue. The first issue is interesting, because it falls in the middle of the cases. It is not squarely on point with a case.” Nonetheless, the court assumed Choi had satisfied her initial burden under the anti-SLAPP statute, but denied the motion because Yoon had made the minimal showing of merit necessary to defeat the motion. The court rejected Choi’s argument concerning the absolute privilege under Civil Code section 47, subdivision (b), because it had not been timely asserted: “I can’t consider an argument first raised in the reply.”
In its 12-page minute order denying the motion the court explained, “The question of whether defendant has, in fact, satisfied that burden [of establishing the complaint arises from an act in furtherance of Choi’s right of free speech in connection with a public issue] appears to be one of first impression. The evidence is undisputed that the bank involved here is not a publicly traded company . . . . However, the letter here arguably concerns issues that are not purely private, i.e., insider trading in a company having several hundred (but not greater than 500) shareholders. . . . The court also notes that although the Complaint does not allege that defendant approached the SEC with her accusations, defendant demonstrate[s] that she did complain to the SEC and other government agencies about plaintiff’s purported insider trading and ‘corruption.’ [Citation.] This would appear to implicate defendant’s First Amendment rights under the express language of the anti-SLAPP statute. [¶] The court does not have to resolve the issue of whether defendant satisfied [her] burden under anti-SLAPP analysis because, as discussed below, even if, arguendo defendant has satisfied that burden, plaintiff has satisfied his shifted burden to show probability of prevailing as to each of the claims.”
With respect to Yoon’s showing on the merits of his defamation claim, the court found the declarations submitted in opposition to Choi’s motion “cumulatively provide the minimal showing under the anti-SLAPP analysis that some of the alleged factual statements [in the July 12, 2006 letter to shareholders] were false. [Citation.] Additionally, because the alleged accusations of crimes [involving insider trading] are defamatory per se, damages are presumed.” As to the cause of action for intentional infliction of emotional distress, the court concluded the evidence of intentional defamation “involves accusations of serious criminal conduct, which may be viewed as being outrageous by a reasonable fact-finder.” Finally, considering Choi’s argument that Yoon could not prevail on his claims because her communications were privileged under Civil Code section 47, subdivision (c), the court found, “[w]hile the parties do not dispute that the letter went to shareholders, which arguably implicates the interested-party privilege, Plaintiff has proffered evidence from which the malice exception can be inferred.” Consistent with its observation at the hearing that it would not consider an argument raised for the first time in the reply brief, in its written ruling the court did not address Choi’s claim of absolute privilege under Civil Code section 47, subdivision (b).
DISCUSSION
1. Section 425.16: The Anti-SLAPP Statute
Section 425.16 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.” (§ 425.16, subd. (b)(1).) In ruling on a motion under section 425.16, the trial court engages 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. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) 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. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)
Under the statute 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’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)
In terms of the so-called threshold issue, the moving party’s burden is to show “the challenged cause of action arises from protected activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 616, fn. 10.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e) . . . .’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
Once the defendant establishes the statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) In deciding the question of potential merit, the trial court properly considers the pleadings and evidentiary submissions of both the plaintiff and the defendant, but may not weigh the credibility or comparative strength of any competing evidence. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The question is whether the plaintiff presented evidence in opposition to the defendant’s motion that, if believed by the trier of fact, is sufficient to support a judgment in the plaintiff’s favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Nonetheless, the court should grant the motion “‘if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempts to establish evidentiary support for the claim.’” (Taus, at p. 714; Wilson, at p. 821; Zamos, at p. 965.)
“‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.’” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 (Kajima).) We review the trial court’s rulings independently under a de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)
2. Yoon’s Complaint Arises from Choi’s Protected Speech Activity
To satisfy the initial burden on a special motion to strike, the moving party must demonstrate the conduct that forms the basis for the challenged causes of action was an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78; Equilon Enterprises, supra, 29 Cal.4th at p. 67.) There is no question Choi’s July 12, 2006 letter to shareholders, which underlies each of the three causes of action in Yoon’s complaint, was an exercise of Choi’s right of free speech. As the trial court recognized, whether that speech was in connection with a public issue is a much closer issue.
In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 the Supreme Court held a moving party relying on section 425.16, subdivisions (e)(1) and (e)(2), need establish only that the challenged statement was made within or in connection with an official proceeding whether or not it pertained to an issue of public significance: “[P]lainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.” “[A] defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding [under subdivisions (b)(1) and (2)] need not separately demonstrate that the statement concerned an issue of public significance.” (Id. at pp. 1113, 1123.) However, a defendant like Choi who seeks to strike a cause of action that arises from protected conduct described in section 425.16, subdivisions (e)(3) and (e)(4), must demonstrate the matter concerns a public issue or an issue of public interest. (Briggs, at pp. 1117-1118; see also DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567.)
As noted in footnote 4, above, section 425.16, subdivisions (e)(1) and (e)(2), define “act in furtherance of a person’s right of petition or free speech in connection with a public issue” to include oral or written statements made “before” a legislative, executive, judicial or any other official proceeding oral or written statements made “in connection with an issue under consideration or review by” a legislative, executive or judicial proceeding “or any other official proceeding authorized by law.”
As noted in footnote 4, above, section 425.16, subdivisions (e)(3) and (e)(4), define “act in furtherance of a person’s right of petition or free speech in connection with a public issue” to include statements made in a public forum on an issue of public interest and any other conduct in furtherance of the exercise of the rights of petition or free speech in connection with an issue of public interest. “[C]onduct” in subdivision (e)(4) has been broadly construed to include pure speech, even though that interpretation makes subdivision (e)(3) essentially superfluous. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 342-343; see Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1015 [observing that challenges to “pure speech” would always involve “conduct” within the meaning of § 425.16, subd. (e)(4)].)
Section 425.16 does not define “public issue” or “issue of public interest,” and “it is doubtful an all-encompassing definition could be provided.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) However, “‘[p]ublic interest’ within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, ‘“private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a government entity.”’” (Ruiz v. Harbor View Community Assn. (2005)134 Cal.App.4th 1456, 1468 (Ruiz); compare Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 [statement concerning supervision of a staff of eight custodians was not an issue of public interest] with Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [“‘“Matters of public interest . . . include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals”’”].)
In ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1005, 1007-1008, the Court of Appeal held internet postings concerning a publicly traded corporation, including statements that officers and directors of the corporation were illegally conspiring to manipulate the value of its stock, were made in connection with an issue of public interest because the subject matter was of concern to a large number of investors and potential investors. The subject matter of Choi’s letter was similar to the postings in ComputerXpress. (See also Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650 [matters of public interest include “investment scams” involving private persons and entities] disapproved on another ground in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5.) Moreover, Choi’s declaration in support of her special motion to strike established that, before sending the July 12, 2006 letter to shareholders, Choi had written federal and state banking regulators making identical charges of insider trading and breaches of fiduciary duty by Yoon, reinforcing the possible significance of the issues to Mirae Bancorp shareholders.
In contrast to the corporation involved in ComputerXpress, however, Mirae Bancorp is privately held and has only several hundred shareholders (more than 200 hundred but less than 500 hundred according to the record before this court). Is that “limited, but definable portion of the public” sufficiently large to “warrant [] protection by a statute that embodies the public policy of encouraging participation in matters of public significance”? (See Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119] [matter may be of public interest for purpose of anti-SLAPP statute even if interest is limited to private group, organization or community provided activity occurs in context of ongoing controversy or discussion].)
In Ruiz, supra, 134 Cal.App.4th at pages 1468 to 1469, Justice Fybel writing for Division Three of the Fourth District held that private communications (letters) from a homeowners association attorney to a discontented association member concerning activities of the association’s architectural committee affected the governance of the association itself and would be of interest to all 500-plus association members, “a large enough group to come within the requirements of DuCharme.” (See also Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at p. 479 [statements published in homeowners association newsletter concerning manner in which group of more than 3,000 individuals would be governed].) Although the size of the community (Mirae Bancorp shareholders) potentially interested in Choi’s July 12, 2006 letter is slightly smaller than the group involved in Ruiz, in light of the Legislature’s express directive to broadly construe the anti-SLAPP statute to encourage continued participation in matters of public significance (§ 425.16, subd. (a)), we have no difficulty concluding that Choi’s letter falls within the ambit of the section 425.16, subdivision (e)(4), and that Choi met her threshold burden on the special motion to strike.
3. Yoon Established a Probability of Prevailing on Each of the Three Causes of Action Alleged in the Complaint
On appeal Choi does not contest the trial court’s determination Yoon had presented sufficient evidence to establish a prima facie case as to each of the three causes of action pleaded in his complaint. Similarly, faced with the evidence of malice in the declarations accompanying Yoon’s opposition to her special motion to strike, Choi does not contend she established, as a matter of law, her July 12, 2006 letter was protected by the conditional, interested-person privilege of Civil Code section 47, subdivision (c). Choi argues only that the trial court erred in concluding Yoon had established a probability of prevailing on the merits -- the second prong of the anti-SLAPP motion -- because her letter to the shareholders is protected by the absolute litigation privilege of Civil Code section 47, subdivision (b). Choi’s argument fails for two reasons.
First, as the trial court explained at the hearing on the motion to strike, the court did not consider Choi’s argument her July 12, 2006 letter was absolutely privileged under Civil Code section 47, subdivision (b), because the potential applicability of the litigation privilege was raised for the first time in Choi’s reply brief. The trial court has discretion to refuse to consider new facts or legal theories presented in a reply memorandum. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Carabini v. Superior Court (1994) 26 Cal.App.4th 239, 244 [due process requires orders with significant impact on viability of lawsuit not be made without full opportunity to brief issues and present evidence]; In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1168-1171 [when reply papers inject new issue, court should have granted continuance or stricken amended declarations].) The trial court did not abuse its discretion in rejecting Choi’s attempt to shift her privilege argument from the conditional, interested-party privilege to the absolute litigation privilege after Yoon had submitted his opposition memorandum and evidence.
Second, even were we to consider the issue, the record before the trial court fails to establish the existence of the absolute litigation privilege as a matter of law, as would be necessary for us to reverse the trial court’s order denying Choi’s motion to strike. (See Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at page 821 [“though the court does not weigh the credibility or comparative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim”].)
In considering the merits of Choi’s argument, we must disregard not only her failure to raise the issue in a timely fashion in the trial court but also her inclusion on appeal of new and different theories, never presented to the trial court, as to why Civil Code section 47, subdivision (c), applies to her July 12, 2006 letter -- something we normally would not do. (See, e.g., Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412 [failure to raise issue or argument in the trial court results in forfeiture on appeal]; Ernst v. Searle (1933) 218 Cal. 233, 240-241 [“party is not permitted to change his [or her] position and adopt a new and different theory on appeal. To permit him [or her] to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant”]; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
Civil Code section 47, subdivision (b), defines a privileged publication or broadcast, in part, as one 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 [Code of Civil Procedure, section 1084 et seq.].” Attempting to fit her July 12, 2006 letter within that statutory definition, Choi contends the letter was a “communication ‘made before’ and ‘made in connection with’ a judicial proceeding and/or other official proceeding authorized by law,” and presents three alternative grounds upon which the absolute privilege purportedly applies: the letter was sent in connection with investigations of Yoon’s conduct by government banking regulators; the letter was written pursuant to her statutory duties as a corporate director and, therefore, in the course of a proceeding authorized by law and reviewable by a petition for writ of mandate; and the letter was, in effect, a prelitigation demand for action by Mirae Bancorp against Yoon, an essential prerequisite to a shareholder’s derivative lawsuit. The first two theories lack merit; the third may be available to Choi, but requires resolution of disputed factual issues and is thus not an appropriate basis for granting the special motion to strike. (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676 [defendant may prevail on second prong of anti-SLAPP motion by showing, as a matter of law, there is complete defense to cause of action]; cf. Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398.)
While it may be true, as Choi contends, her communication to the shareholders was related in content to letters she wrote to prompt government regulators to investigate Yoon’s allegedly improper conduct, the July 12, 2006 letter itself was extraneous to the possible initiation of regulatory proceedings. (See Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 368 [“the critical question is the aim of the communication, not the forum in which it takes place. If the communication is made ‘in anticipation of or [is] designed to prompt official proceedings, the communication is protected’”].) Nor is there any suggestion in the record Choi wrote to other shareholders in an attempt to develop information to forward to the regulatory authorities. (See, e.g., Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146 [communication “must function as a necessary or useful step in the litigation process and must serve its purposes”].) Accordingly, although Choi’s letters to regulatory authorities were undoubtedly privileged under section 47, subdivision (b) (Hagberg, at p. 362; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 23), nothing in the record supports extending that protection to include Choi’s letter to shareholders. (See Rothman,at p. 1147 [“communications which only serve interests that happen to parallel or complement a party’s interests in the litigation” are not in furtherance of or connected to litigation]; see also Silberg v. Anderson (1990) 50 Cal.3d 205, 219-220 [“The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action”].)
Yoon conceded in the trial court that letters written by Choi to regulatory authorities were privileged, but emphasized his complaint did not assert any claim predicated on statements made to public officials.
Similarly without merit is Choi’s argument her letter to shareholders informing them of the allegedly unlawful acts of one of Mirae Bancorp’s directors constitutes a communication in the initiation or course of a proceeding authorized by law and reviewable by writ of mandate. Whether or not the letter was written pursuant to Choi’s obligations under the Corporations Code section 309, subdivision (a), to perform her own duties as a director in the best interests of the corporation and its shareholders, and even accepting the somewhat dubious proposition performance of those duties can be enforced by a petition for a writ of mandate, Civil Code section 47, subdivision (b)’s protection is limited to governmental proceedings and to nongovernmental, quasi-judicial proceedings reviewable by administrative mandate, for example, hospital peer review proceedings. (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1507-1508 [private company’s sexual harassment grievance protocol does not constitute official proceeding authorized by law; Civ. Code, § 47, subd. (b), is limited to quasi-governmental proceedings authorized by law and reviewable by writ of administrative mandamus under § 1094.5]; see Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995 [although credit union and its board of directors were highly regulated by federal law, “[n]one of these statutorily created duties . . . suffices to make the investigation by the supervisory committee or its report to the board of directions an ‘official proceeding’”]; see also Slaughter v. Friedman (1982) 32 Cal.3d 149, 156.)
Choi’s final argument focuses on Corporations Code section 800, subdivision (b), which mandates the plaintiff in a shareholder derivative action allege “with particularity” in his or her complaint “plaintiff’s efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort, and alleges further that plaintiff has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each defendant or delivered to the corporation or the board a true copy of the complaint which plaintiff proposes to file.” Choi asserts her July 12, 2006 letter to shareholders describing Yoon’s allegedly improper and illegal conduct and demanding an investigation constitutes the required prelitigation demand letter, informing the Mirae Bancorp through its shareholders of the ultimate facts of each cause of action against Yoon.
Yoon correctly notes Corporations Code section 800, subdivision (b), requires the plaintiff in a derivative action to demand action from the corporations’ board (or allege such a demand would have been futile), not from the shareholders at large. However, as quoted in the text, the plaintiff is also obligated to inform “the corporation or the board” of the facts underlying the putative derivative claims. On the limited record before us, we cannot conclude as a matter of law that Choi’s letter demanding an investigation of Yoon, sent to all shareholders immediately before the corporation’s annual meeting, does not fall within this provision.
Although the litigation privilege is broadly construed, a prelitigation statement is protected only if it is made “in serious and good faith consideration of litigation.” (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 268.) “The privilege applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) to have some connection or logical relation to the action.’ [¶] It has long been the law that communications that bear ‘some relation’ to an anticipated lawsuit fall within the privilege. The privilege has been broadly applied to demand letters and other prelitigation communications by attorneys. [¶] ‘A prelitigation statement is protected by the litigation privilege of section 47, subdivision (b) when the statement is made in connection with a proposed litigation that is “contemplated in good faith and under serious consideration.”’ ‘[T]he good faith, serious consideration of litigation test is not . . . a test for malice and it is not a variation of the “interest of justice” test.’ Rather, it is ‘addressed to the requirement the statements “have some connection or logical relation to the action.”’ Thus, if the statement is made with a good faith belief in a legally viable claim and in serious contemplation of litigation, then the statement is sufficiently connected to litigation and will be protected by the litigation privilege.” (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919, citations omitted; see Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 150 [“[Civ. Code, §] 47(b) does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals”].)
Because Choi did not assert in the trial court (even belatedly in her reply memorandum) that her communication to other shareholders was intended to comply with the requirements of Corporations Code section 800, section (b), the record is devoid of evidence to support a finding she sent the letter “with a good faith belief in a legally viable claim and in serious contemplation of litigation.” (Blanchard v. DIRECTV, Inc., supra, 123 Cal.App.4th at p. 919.) Nothing in the July 12, 2006 letter itself or any other evidence submitted with her special motion to strike indicates Choi was considering filing a derivative lawsuit at the time of her letter, nor did she submit a declaration in the trial court stating she was seriously contemplating doing so. To the contrary, in her declaration in support of the motion, Choi averred the letter was sent to other shareholders and directors as a matter of public interest. Although the absence of any evidence necessary to invoke the litigation privilege does not preclude Choi from asserting the privilege at a subsequent point in the proceeding, it does justify denying her special motion to strike Yoon’s complaint.
DISPOSITION
The order denying the section 425.16 special motion to strike is affirmed. Yoon is to recover his costs on appeal.
We concur: WOODS, J., ZELON, J.