106 Cal.App.5th 361
Cal. Ct. App.2024Background
- Eva Osborne, an executive assistant at Pleasanton Automotive Company (HAG) and assistant to executive Bob Slap, complained of discriminatory and retaliatory conduct, wage violations, and being forced to do personal errands without proper pay during her employment.
- After Osborne repeatedly raised complaints internally without sufficient resolution, in December 2019 she submitted a detailed letter to HR documenting ongoing misconduct. Around the same time she contacted and retained legal counsel.
- Three months later, Osborne filed a lawsuit against HAG and Slap based on discrimination, retaliation, and wage claims.
- Slap responded two years later with a cross-complaint alleging defamation and related torts arising from statements in Osborne's HR complaint letter.
- Osborne filed an anti-SLAPP motion, contending her HR letter was protected pre-litigation speech privileged under Civil Code § 47 and in furtherance of contemplated litigation, thus barring Slap’s cross-claims.
- The trial court granted the anti-SLAPP motion, holding that the HR letter was protected by the litigation privilege; Slap appealed.
Issues
| Issue | Osborne's Argument | Slap's Argument | Held |
|---|---|---|---|
| Whether Osborne’s HR letter was protected activity under the anti-SLAPP statute | Letter was made in anticipation of litigation; falls into protected categories under CCP § 425.16(e)(1)-(2) | Letter was not protected because it was extortionate/illegal, removing anti-SLAPP protection | Protected activity; anti-SLAPP applies; Flatley exception for illegal acts does not fit these facts |
| Whether Osborne’s statements in the HR letter were privileged under Civil Code § 47 | Letter is absolutely privileged as made in serious contemplation of litigation and conditionally privileged as workplace complaint | Privilege does not apply; no serious litigation was anticipated; allegedly extortionate conduct is not privileged | Litigation privilege absolutely applies; statements were made in serious contemplation of litigation |
| Whether the Flatley exception applies (statements illegal as a matter of law) | No conclusive evidence of extortion; correspondence was legitimate workplace grievance | Statements amounted to criminal extortion/blackmail, thus not protected | Flatley exception is narrow and not met; evidence does not establish conduct as crime as matter of law |
| Whether Slap could show minimal merit on cross-claims (libel, slander, etc.) | Litigation privilege bars all tort claims arising from the letter | Claims are actionable because letter was unprivileged, false, and malicious | No probability of prevailing; claims barred by litigation privilege |
Key Cases Cited
- Flatley v. Mauro, 39 Cal. 4th 299 (Cal. 2006) (anti-SLAPP does not protect illegal/criminal speech where illegality is conclusively established)
- Comstock v. Aber, 212 Cal. App. 4th 931 (Cal. Ct. App. 2012) (employee’s pre-litigation complaints to HR protected under anti-SLAPP by privilege)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232 (Cal. 2007) (litigation privilege applies to pre-litigation communications in good faith contemplation of litigation)
- Rubin v. Green, 4 Cal. 4th 1187 (Cal. 1993) (litigation privilege applies broadly to statements in connection with anticipated lawsuits)
- Silberg v. Anderson, 50 Cal. 3d 205 (Cal. 1990) (litigation privilege broadly interpreted to protect communications intended to achieve objects of litigation)