Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07CC10605, Derek W. Hunt, Judge.
Najila K. Brent, in pro per.; and Law Offices of Robert Bruce Parsons and Robert B. Parsons for Defendant and Appellant.
Law Offices of Fred S. Pardes and Fred S. Pardes for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Najila Kordrostami Brent appeals from an order denying her anti-SLAPP motion to strike slander and related causes of action filed by plaintiff Farahmarz Abolfathi. (Code Civ. Proc., § 425.16, subd. (e).) The causes of action arise from allegedly slanderous statements made in an anonymous telephone complaint to plaintiff’s employer. The causes of action are not subject to an anti-SLAPP motion because the underlying statements do not involve an official proceeding and do not concern an issue of public interest. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise stated. “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
FACTS
The complaint alleges these facts. Defendant is a lawyer who secretly advised plaintiff’s ex-wife in their marital dissolution proceeding. Defendant made an anonymous telephone call to plaintiff’s employer, The Boeing Company (Boeing), falsely accusing him of posing a security risk. Defendant told Boeing that plaintiff was a pathological liar and a terrorist who secretly worked for a foreign country and divulged classified information to impress women. Boeing contacted the FBI, which investigated the accusations and cleared plaintiff. Plaintiff asserted causes of action for slander, intentional and negligent interference with prospective contract, intentional infliction of emotional distress, and “conspiracy.”
Defendant contends the court wrongly deferred to the complaint’s allegations concerning the call’s content, instead of relying upon the declaration of a Boeing employee who listened to a recording of the telephone call. Any discrepancies between the two are immaterial to the anti-SLAPP analysis.
Defendant demurred and filed an anti-SLAPP motion to strike the complaint. The court sustained the demurrer to the two interference causes of action. It denied the anti-SLAPP motion to all causes of action.
DISCUSSION
The order denying the anti-SLAPP motion to strike the complaint is directly appealable and subject to our independent review. (§ 425.16, subd. (i); Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)
Contrary to defendant’s claim, the court was not required to issue a statement of decision on its order denying the anti-SLAPP motion. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040 [statement required after trial, not after ruling on a motion].)
The Anti-SLAPP Statute
The anti-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.” (§ 425.16, subd. (b)(1).)
Defendant bears the initial burden to establish the complaint is “based on [her] protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) If defendant meets this burden, plaintiff then bears the burden to “establish[] that there is a probability that [it] will prevail on the claim.” (§ 425.16, subd. (b)(1).) The parties agree plaintiff’s causes of action arise from the alleged anonymous telephone call. The issue is whether the statements made in that call are protected by the anti-SLAPP statute.
To meet her initial burden, defendant must show the statements “‘fit[] one of the categories spelled out in section 425.16, subdivision (e).’” (Navellier, supra,29 Cal.4th at p. 88.) “The only way a defendant can make a sufficient threshold showing is to demonstrate that the conduct by which the plaintiff claims to have been injured falls within one of those four categories.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).)
Section 425.16, subdivision (e) provides, “As used in this section, ‘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.”
Defendant Fails to Show the Statements Involve an Official Proceeding
Defendant contends the statements challenged in the complaint are protected because they were made in an “official proceeding authorized by law” (§ 425.16, subd. (e)(1)) or “in connection with an issue under consideration or review by [an] official proceeding authorized by law” (§ 425.16, subd. (e)(2)). She offers three grounds to support this contention. None hold water.
First, defendant broadly claims Boeing is a “de facto government regulatory agency.” She asserts Boeing is the United States’ largest defense contractor, with a business unit dedicated to analyzing terrorist threats and integrating public and private terrorist information. She further asserts the U.S. Department of Homeland Security has an Under Secretary for Information Analysis and Infrastructure Protections, who is responsible for consulting with private companies concerning possible terrorist threats.
Because this under secretary position is immaterial to the anti-SLAPP analysis, the court did not err by failing to consider the legislation that created it, the Homeland Security Act of 2002. Nor does pending federal legislation immunizing reports of suspicious activity assist defendant, most notably because it is not law. (H.R. No. 2291, 110th Cong., 1st Sess., § 1, p. 1 (2007) [bill referred to committee].)
But defendant cites no persuasive authority deeming a private company to be an official government body just because it contracts and communicates with the federal government. The only private activities recognized by the courts as being subject to anti-SLAPP protection as “official proceedings” are quasi-judicial proceedings “subject to judicial review by administrative mandate” (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 200 [hospital peer review]) and proceedings “established by statute to address a particular type of dispute” (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358). Defendant has not shown Boeing’s terrorism analysis is reviewable by administrative mandate. Whatever the extent of Boeing’s relationship with the federal government, it is not a government agency conducting official proceedings subject to anti-SLAPP protection.
Second, defendant invokes the litigation privilege. (Civ. Code, § 47, subd. (b)(2).) “The usual formulation is that 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) that [has] some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Defendant relies upon cases extending the litigation privilege to communications intended to instigate official investigations or proceedings. (E.g., Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 362 (Hagberg).)
But “the litigation privilege and the anti-SLAPP statute are substantively different statutes that serve quite different purposes.” (Flatley, supra, 39 Cal.4th at p. 322.) The litigation privilege is broader than the anti-SLAPP statute. It may protect litigation-related communications that do not further the valid exercise of constitutional freedoms and thus are not protected by the anti-SLAPP statute. (Id. at pp. 322-323, 333 [anti-SLAPP statute does not protect extortionate settlement demand].)
With regard to communications reporting unlawful activity, the litigation privilege protects communications to the “administrative agenc[ies] charged with enforcing the law,” not to private parties. (Hagberg, supra, 32 Cal.4th at p. 362 [telephone call to police]; accord, Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 527 [report to prison officials and police]; Hunsacker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1502 [telephone call to police].) The litigation privilege “has been interpreted broadly to protect communications to or from government officials which may precede the initiation of formal proceedings. [Citations.] None of these cases involve communications between private parties who are not acting in an official capacity....” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 156 [letter to dental insurance claimants not privileged under former Civ. Code, § 47, subd. (2)].) The litigation privilege for investigation-instituting communications “has never been applied to private individuals.” (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 368 [complaint to corporate human resources department not privileged].)
And the anonymous caller would not be a party in any investigation of plaintiff’s security risk. The litigation privilege protects communications “by litigants or other participants authorized by law.” (Silberg, supra,50 Cal.3d at p. 212.) Defendant relies upon inapt cases in which privileged communications regarding anticipated litigation were made by potential parties or their counsel. (Rubin v. Green (1993) 4 Cal.4th 1187, 1195 [communication among law firm, client, and potential coplaintiffs regarding expected suit]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 781-782 [letter from one victim to others regarding upcoming complaint to Attorney General]; see also Lee v. Fick (2005) 135 Cal.App.4th 89, 97 [privilege protects parents’ communications regarding complaint to school board].) Defendant cites no authority extending the litigation privilege to accusations by interloping third parties.
Similarly, defendant misplaces her reliance on the absolute privilege for communications among interested parties. (Civ. Code, § 47, subd. (b)(3); Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846-850 [applying former Civ. Code, § 47, subd. (3).) She has not shown a legally sufficient interest in any investigation of plaintiff’s purported security risk.
Third, defendant asserts the anonymous telephone call is protected because it repeats accusations first made in plaintiff’s dissolution action. But “republications [of privileged litigation communications] to nonparticipants in the action are generally not privileged under [Civil Code] section 47(2) [now section 47, subd. (b)] and are thus actionable unless privileged on some other basis.” (Silberg, supra, 50 Cal.3d at p. 219; accord Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1145-1146 [republication of litigation communications to media not privileged].)
The court correctly denied defendant’s request to judicially notice declarations from the dissolution action containing these accusations.
Thus, the anonymous telephone call was not made in an official proceeding or in connection with an issue under review by an official proceeding. It is not protected by section 425.16, subdivisions (e)(1) or (e)(2).
Defendant Fails to Show the Statements Concern an Issue of Public Interest
Defendant further contends the statements are protected because they were “made in... a public forum in connection with an issue of public interest” (§ 425.16, subd. (e)(3)) or “in connection with a public issue or an issue of public interest” (§ 425.16, subd. (e)(4)). She relies upon the public interest in Boeing and national security.
The anti-SLAPP statute “does not provide a definition for ‘an issue of public interest,’ and it is doubtful an all-encompassing definition could be provided.” (Weinberg, supra,110 Cal.App.4th at p. 1132.) Statements possibly connected to the public interest include “statements either concern[ing] a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest . . . .” (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero).)
Importantly, “there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient.” (Weinberg, supra,110 Cal.App.4th at p. 1132.) “If we were to... examine the nature of the speech in terms of generalities instead of specifics, then nearly any claim could be sufficiently abstracted to fall within the anti-SLAPP statute.” (Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601 (Consumer Justice).)
Thus, statements of private concern are not protected merely because one might extrapolate a tangential connection to some general public concern. Allegations of criminal conduct are not necessarily protected, despite the general interest in public safety. (Weinberg, supra,110 Cal.App.4th at pp. 1134-1136.) Allegations of employee misconduct at a public university are not necessarily protected, despite the general interest in public education. (Rivero, supra,105 Cal.App.4th at pp. 924-925.) And despite the general interest in public health, statements by a medical corporation to a health maintenance organization are not necessarily protected (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 848-849); neither are statements concerning the efficacy of a particular herbal supplement. (Consumer Justice, supra,107 Cal.App.4th at p. 601.)
Defendant fails to show a sufficient connection between the anonymous telephone call and a public issue or issue of public interest. She has not shown plaintiff is “in the public eye.” (Rivero, supra, 105 Cal.App.4th at p. 924.) Nor has defendant shown any public interest in the activity of which plaintiff is accused during the call. Nor has she shown the telephone call itself “could directly affect a large number of people beyond the direct participants” — it primarily affected Boeing and plaintiff. (Ibid.) Defendant contends the public was potentially affected by the telephone call because it accused defendant of threatening Boeing’s welfare and national security. But defendant’s invocation of Boeing’s prominence and the importance of national security falls short. An insufficient “degree of closeness” exists between the “broad and amorphous public interest” in these issues and a telephone call between a private citizen and a corporation concerning one employee’s alleged misdeeds. (Weinberg, supra,110 Cal.App.4th at p. 1132.) Defendant’s reliance upon “generalities instead of specifics” would allow “nearly any claim [to] be sufficiently abstracted to fall within the anti-SLAPP statute.” (Consumer Justice, supra,107 Cal.App.4th at p. 601.)
Defendant also fails to show a private telephone call constitutes a public forum, despite her assertion Boeing listed its telephone number on its website.
Defendant misplaces her reliance on Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107. That case noted the public interest requirement may be met by statements concerning the private activities of “‘a large, powerful organization [that] may impact the lives of many individuals’” or “‘private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.’” (Id. at p. 115.) Du Charme contemplated a statement regarding “an ongoing controversy, dispute or discussion” affecting a discrete community like a homeowners association or union, “such that [the statement] warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Id. at p. 119; cf. Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 523-524 [statements criticizing controversial purchaser of four local hospitals were protected].) The statements in Du Charme, which criticized a terminated union manager, were not made in any such ongoing discussion and were not protected. (Du Charme, at pp. 110, 119.) Here, defendant shows no discrete community related to Boeing or any ongoing controversy concerning plaintiff.
Troy Group, Inc. v. Tilson (C.D.Cal. 2005) 364 F.Supp.2d 1149, is not binding and is distinguishable, as the statements there concerned publicized litigation between the parties. (Id. at pp. 1151, 1154.) It is unpersuasive to the extent it implies all statements concerning public corporations or companies that issue press releases necessarily involve the public interest.
This case is strikingly similar to Weinberg. In that case, the defendant accused the plaintiff of theft in trade newsletters and letters to colleagues. (Weinberg, supra, 110 Cal.App.4th at pp. 1128-1129.) Weinberg rejected the contention “criminal activity is always a matter of public interest.” (Id. at p. 1134.) It noted the defendant made his accusations only to “a small group of other private parties” (id. at p. 1132) — he was not making “a complaint to an appropriate prosecutorial official” (id. at p. 1135). Thus, “defendant’s accusations against plaintiff related to what was in effect a private matter.” (Ibid.) Weinberg explained, “The fact that defendant’s statements accuse plaintiff of criminal conduct make them defamatory on their face. [Citations.] It does not automatically make them a matter of public interest.” (Ibid.)
Like the accusations in Weinberg, the anonymous telephone call appears to be “a mere effort ‘to gather ammunition for another round of [private] controversy . . . .’” (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133.) Statements made in “a private campaign of vilification” — such as this — are not protected. (Weinberg, at p. 1135.)
Because defendant has not shown the anonymous telephone call involves an official proceeding or public issue, we need not reach plaintiff’s contention that the call is unprotected because it is anonymous. Nor do we need to determine whether defendant is the anonymous caller, because the burden did not shift to plaintiff to show a probability of prevailing on the merits.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Plaintiff shall recover his costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.