240 Cal. App. 4th 333
Cal. Ct. App.2015Background
- Alexander (Alex) Barker was one of several long‑time paid caregivers for elderly dementia patient Allison McBride; Deborah Wagner was appointed conservator and hired Fox & Associates for case management, retaining some caregivers but changing aspects of care.
- An incident on June 21, 2013, involving Fox employee Carly Newell left Allison injured; subsequent email communications from Cheryl Fox and Deborah Wagner discussed bruising, training gaps, and that Alex had not addressed orientation items for Carly.
- Fox’s June 25 email (sent to family, Wagner’s attorney, Fox staff, and some caregivers) noted Alex had not addressed orientation items and that Carly was ill‑prepared; Wagner’s response to Nancy Barker said Alex “did not follow‑thru” and was not cc’d because he was not a caregiver of choice for training.
- Barker quit shortly after being placed on 30‑day probation and later sued Wagner, Fox, and Fox & Associates for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress; defendants moved to strike under the anti‑SLAPP statute (Code Civ. Proc., § 425.16).
- The trial court denied the anti‑SLAPP motion concluding Barker made a sufficient prima facie showing of falsity and malice; the Court of Appeal reviewed de novo and reversed, holding Barker failed to show legal sufficiency or admissible evidence of malice or other required elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barker demonstrated a probability of prevailing on his defamation claim under anti‑SLAPP step two | Barker contended emails and an oral remark accused him of causing Allison’s injuries, alleging statements were defamatory per se so damages need not be pleaded | Defendants argued the communications were protected (conservatorship context/common interest) or non‑defamatory (statements were opinion/performance critique), and that Barker offered insufficient admissible evidence | Held for defendants: Barker failed to plead/produce competent evidence of a provably false defamatory statement and thus failed step two |
| Whether the communications were privileged under the common‑interest privilege (Civ. Code § 47(c)) or shown to be made with malice to defeat the privilege | Barker argued defendants acted with malice, knowingly false or recklessly made statements to shift blame | Defendants argued communications were to interested persons for Allison’s care and made on reasonable grounds, so privileged absent clear proof of malice | Held for defendants: no admissible evidence of ill‑will or reckless falsity; malice cannot be inferred from the communications alone |
| Whether the emailed statements were libel/slander per se (avoiding proof of special damages) | Barker asserted statements accused him of causing serious injuries and incompetence, making them defamatory on their face | Defendants maintained the emails reflected concern and opinion about performance/training, not accusations of dishonesty or criminal conduct | Held for defendants: emails and the single oral remark were not defamatory on their face; defamation per quod would require pleading/proof of special damages, which Barker did not establish |
| Whether Barker’s intentional and negligent infliction of emotional distress claims survived anti‑SLAPP | Barker relied on alleged defamatory campaign and asserted resulting severe distress | Defendants argued conduct did not meet the high threshold of outrageousness or intent/reckless causation; negligent infliction claim is not a separate tort absent traditional negligence elements | Held for defendants: plaintiff failed to allege or support extreme/outrageous conduct, intent or severe distress; negligent‑infliction claim has no independent viability as pleaded |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (plaintiff must show a probability of prevailing at anti‑SLAPP step two)
- Linder v. Thrifty Oil Co., 23 Cal.4th 429 (anti‑SLAPP plaintiff need only minimal level of legal sufficiency and triability)
- Grewal v. Jammu, 191 Cal.App.4th 977 (standard of appellate review and evidence consideration at anti‑SLAPP step two)
- Hughes v. Pair, 46 Cal.4th 1035 (elements and high threshold for intentional infliction of emotional distress)
- Kashian v. Harriman, 98 Cal.App.4th 892 (malice under §47(c) requires ill will or reckless disregard for truth)
- Hecimovich v. Encinal School Parent Teacher Org., 203 Cal.App.4th 450 (pleadings vs. evidentiary showing in anti‑SLAPP opposition)
- Jensen v. Hewlett‑Packard Co., 14 Cal.App.4th 958 (performance evaluations/opinions are generally not actionable defamation)