2009 Jun 20: Grijalva v. Brandt

The August 8, 2008 order is reversed. Grijalva is entitled to costs on appeal.

D053856.

DANIELLE GRIJALVA et al., Plaintiffs and Appellants, v. HELGA BRANDT et al., Defendants and Respondents.

Court of Appeals of California, Fourth Appellate District, Division One

July 20, 2009

B. Application

The primary arguments that ASSE and Brandt advanced in their anti-SLAPP motion in the trial court in attempting to carry their threshold burden of demonstrating that plaintiffs’ claims arose from protected activity are contrary to well established law. First, ASSE and Brandt claimed that the “`convenient’ “timing of the filing of this action, a “mere one month” after ASSE filed its complaint in intervention in the North Carolina action, demonstrated that plaintiffs’ lawsuit arose from ASSE’s participation in the North Carolina proceeding. However, as noted above, the Supreme Court has clearly held that the fact that a party files an action after protected activity has taken place does not demonstrate that the action arose from the protected activity. (Cotati, supra, 29 Cal.4th at p. 69 [fact that municipality’s action was filed “shortly after” owners filed separate action did not mean that municipality’s action arose from owner’s action].)

Second, ASSE and Brandt claimed that plaintiffs’ action was a “clearly-retaliatory lawsuit.” Even assuming that plaintiffs filed this lawsuit in retaliation for ASSE’s participation in the North Carolina action, any such retaliatory motive would be irrelevant in determining the merits of ASSE and Brandt’s anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77; see Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 [“Kajima wrongly focuses on the City’s filing of the amended cross-complaint as a supposed act of retaliation without demonstrating, as it must under the anti-SLAPP statute, that the amended cross-complaint `alleges acts in furtherance of [Kajima’s] right of petition or free speech in connection with a public issue'”].)9

ASSE and Brandt made the related argument in the trial court that, “The SLAPP character of Plaintiffs’ action is . . . clear from the obvious insufficiency of the causes of action.” We are not aware of any authority, and ASSE and Brandt have cited none, that indicates that the insufficiency of the allegations in a plaintiff’s complaint may be used to demonstrate that the claims alleged therein arise from a defendant’s protected activity.10 ASSE and Brandt apparently intend to suggest that that the alleged insufficiency of the plaintiffs’ amended complaint demonstrates that plaintiffs’ motive in filing the action was improper. (Cf. In re Marriage of Gong and Kwong (2008) 163 Cal.App.4th 510, 516 [“`”the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay”‘”]). However, as noted above, a plaintiff’s motive in filing an action is irrelevant for purposes of determining the merits of an anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77.)

Any alleged insufficiency in the plaintiffs’ amended complaint regarding the context in which the purported defamatory statements were made would tend to negate, rather than support, the conclusion that ASSE and Brandt demonstrated that the statements were made in a judicial proceeding or in connection with an issue before a judicial body. ASSE and Brandt implicitly acknowledged this in their anti-SLAPP motion when they stated, “Because plaintiffs have not sufficiently alleged Defendants’ allegedly `defamatory statements’ in the instant action, the exact origin of and circumstances surrounding the alleged statements are currently unknown.”

A defendant seeking to carry its burden of demonstrating that a plaintiff’s action arises from the defendant’s participation in a judicial proceeding does not carry this burden by demonstrating that the statements that form the basis of the action were made under “unknown” circumstances. Further, a defendant seeking to establish that the plaintiffs’ cause of action arises from protected activity is not limited to the plaintiffs’ pleadings. Rather, in seeking to carry this threshold burden, a defendant may submit declarations attesting to the context in which statements that form the basis of the plaintiff’s claims were made. (See, e.g., Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1057 [defendant submitted declarations of its attorney and employee demonstrating that statements forming the basis of plaintiff’s complaint arose in connection with judicial proceeding]; § 425.16, subd. (b)(2) [trial court shall consider “supporting and opposing affidavits stating the facts upon which the liability or defense is based,” in ruling on anti-SLAPP motion].) In this case, ASSE and Brandt provided no such declarations. Their assertion in their anti-SLAPP motion that the statements forming the basis of plaintiffs’ claims “appear to directly relate to ASSE’s participation in the North Carolina action,” does not establish that this is in fact so. (Italics added, formatting omitted.)

While ASSE and Brandt did request that the trial court take judicial notice of various documents from the North Carolina proceeding, there is no reference in the plaintiffs’ amended complaint to the North Carolina proceeding, and nothing in the complaint suggests that plaintiffs seek to hold ASSE and Brandt liable for statements they made in any pleading in the North Carolina action. On the contrary, rather than alleging that ASSE made the statements in a judicial proceeding, plaintiffs’ amended complaint suggests that ASSE’s statements were “directed to the parents of the students and to citizens with concerns regarding the problems caused by . . . ASSE’s misconduct . . . .” (Italics added.)

Further, while plaintiffs’ amended complaint alleges nine defamatory statements,11 ASSE and Brandt’s anti-SLAPP motion fails to address, in any fashion, eight of these statements. The only allegation from the plaintiffs’ amended complaint that ASSE and Brandt mention in their anti-SLAPP motion is plaintiffs’ allegation that the defendants had falsely accused Grijalva of “making `false statements.'” ASSE and Brandt argued in their anti-SLAPP motion that this allegation arose from ASSE’s allegation in its complaint in intervention in the North Carolina action that Grijalva had disseminated “false and misleading information.”

Even assuming for the sake of argument that ASSE and Brandt demonstrated that this single allegation is premised on a statement made in the North Carolina pleading, or in connection with an issue under review in the North Carolina action, this would not satisfy their burden to demonstrate that the gravamen of plaintiffs’ claims arises from protected activity. (Martinez v. Metabolife Intern., Inc., supra, 113 Cal.App.4th at p. 188.) “[C]ollateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Ibid.)

In sum, ASSE and Brandt did not demonstrate that the defamatory statements alleged in plaintiffs’ amended complaint were made in a judicial proceeding or in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (e)(1) and (2).) Accordingly, the trial court erred in concluding that ASSE and Brandt carried their burden of demonstrating that plaintiffs’ action arose from petitioning activity that is protected by the anti-SLAPP statute.12

IV.

DISPOSITION

The August 8, 2008 order is reversed. Grijalva is entitled to costs on appeal.

WE CONCUR:

HALLER, Acting P. J.

O’ROURKE, J.

FootNotes

1. “CSFES” is the name plaintiffs used in their complaint to identify this party. Although CSFES appears to be an acronym, plaintiffs did not provide the full name of the entity in their complaint. In their complaint, plaintiffs alleged that both Brandt and Motycka were agents or employees of ASSE. Motycka is not a party to this appeal.

2. “SLAPP” stands for Strategic Lawsuit Against Public Participation. (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.

3. Plaintiffs also claim that the trial court abused its discretion in refusing to allow them to file a late opposition to the anti-SLAPP motion. In light of our reversal of the order granting the anti-SLAPP motion, we need not consider this contention.

4. The original complaint indicated that the case was a “Limited Jurisdiction” case, i.e. one in which the amount in controversy did not exceed $25,000 (§ 85). The amended complaint prayed for a judgment within the “unlimited jurisdictional limit” of the trial court.

5. Several of the pleadings contained in the record, including the demurrer, do not bear a file stamp. We assume for sake of this decision that the pleadings that do not bear a file stamp were filed on the dates indicated in the documents.

6. Implicit in the court’s comment is that the court’s docket no longer precluded holding a hearing on the motion.

7. In her notice of appeal, Grijalva refers to the “judgment entered on August 8, 2008.” (Italics added.) We construe the notice of appeal as referring to the August 8, 2008 order granting the anti-SLAPP motion. The order is appealable. (§ 904.1, subd. (13).)

8. ASSE and Brant did not argue in the trial court, and do not argue on appeal, that either of the plaintiffs’ causes of action arose from statements or conduct defined in section 425.16, subdivision (e)(3) or (4). Accordingly, we restrict our analysis to section 425.16, subdivision (e)(1) and (2).

9. ASSE and Brandt reiterate these arguments on appeal, claiming that plaintiffs’ filed this “retaliatory lawsuit” a “mere thirty-two days after ASSE intervened in the North Carolina action.”

10. We express no view in this opinion on the merits of ASSE and Brandt’s demurrer to the plaintiffs’ amended complaint. As noted previously, the trial court concluded that the demurrer was moot, in light of its ruling granting the anti-SLAPP motion.

11. The nine statements are quoted in full in part II, ante.

12. Although the trial court ruled that ASSE and Brandt demonstrated that plaintiffs’ amended complaint arose from “statements made by Defendants in the complaint-in-intervention in the North Carolina case,” Brandt did not make any statements in ASSE’s complaint-in-intervention. (Italics added.) Further, ASSE and Brandt did not argue in their anti-SLAPP motion that Brandt had any involvement in the North Carolina proceeding. However, we need not resolve whether an employee of a entity may prevail on an anti-SLAPP motion based on its employer’s alleged petitioning activity under these circumstances, in light of our conclusion that ASSE and Brandt failed to demonstrate that plaintiffs’ amended complaint arose from ASSE’s participation in the North Carolina proceeding.

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