We conclude that, when the complaint itself alleges protected activity, a moving party may rely on the plaintiff's allegations alone in arguing that the plaintiff's claims arise from an act "in furtherance of the person's right of petition or free speech." ( § 425.16, subd. (b)(1).) While section 425.16 requires a court to consider both the "pleadings" and the "supporting and opposing affidavits stating the facts upon which the liability or defense is based" ( § 425.16, subd. (b)(2) ), it does not require a moving party to submit declarations confirming the factual basis for the plaintiff's claims. Otherwise, a defendant who disputes the plaintiff's allegations (as appellants do here) might be precluded from bringing an anti-SLAPP motion. That would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that section 425.16 was intended to address. (See Baral v. Schnitt (2016)
Here, plaintiff and respondent Bel Air Internet, LLC (Bel Air) alleges that defendants and appellants Albert Morales and Flavio Delabra (collectively, Appellants) encouraged fellow employees of Bel Air to quit and sue the company for alleged employment violations rather than sign a release of such claims that Bel Air requested. Consistent with several decisions by our Supreme Court, we conclude that such prelitigation conduct encouraging third parties to sue is protected petitioning activity under section 425.16, subdivision (e). In bringing a motion to strike under that section, Appellants could rely on Bel Air's allegations that they urged other employees to quit and sue, even though Appellants denied engaging in this conduct. We therefore reverse the trial court's order denying Appellants' motion to strike.
BACKGROUND
Bel Air is a DirecTV service provider. Until June 8, 2015, Appellants worked at Bel Air as field installers. Appellants left the company under
1. Bel Air's Complaint
Bel Air filed its complaint on June 25, 2015. The complaint alleges causes of action for: (1) intentional interference with contractual relations; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; and (4) conversion (against Morales only). The first three causes of action (the Contract Claims) are based upon two different theories of interference and breach.
First, Bel Air claims that Appellants interfered with its contractual relationship with other Bel Air employees by encouraging them to leave their jobs and sue Bel Air. Bel Air's intentional interference claim alleges that Appellants "advised, counseled, encouraged and sought to persuade various BEL AIR employees to end their employment by BEL AIR, and on information and belief, to refuse to sign certain employment-related documents, create the false appearance of being terminated by
Second, Bel Air's second and third causes of action allege that Appellants breached their contractual duties to Bel Air by "not performing employment services for BEL AIR from June 8, 2015, the date on which they left work without explanation and did not return, through the last date on which [Appellants] were paid by BEL AIR."
2. The Motion to Strike
a. Appellants' motion
On August 24, 2015, Appellants filed a motion to strike under section 425.16, seeking dismissal of Bel Air's first three causes of action. Appellants supported their motion with their own declarations and a declaration from another Bel Air field installer, Andrew Figueroa.
According to Appellants, until about June 1, 2015, Bel Air paid them and other Bel Air installers as "exempt" employees under the applicable employment statutes and regulations. Appellants were not paid for hours worked
On June 1, 2015, a Bel Air manager, Kaj Louis-Johnson, held a meeting with Bel Air employees during which he provided them with several documents. One document outlined new hourly payment procedures and compensation. That document explained that, going forward, Bel Air employees would be "paid overtime in accordance with state and federal overtime requirements," including for hours worked over eight hours a day or 40 hours a week. It also explained that employees would be entitled to rest breaks and meal periods.
Another document, entitled, "General Release," stated that it was to "settle all potential claims by Employee against Employer [Bel Air] that may have accrued up to the date this Agreement was signed." The General Release expressly released claims relating to Bel Air's "classification of Employee as exempt rather than non-exempt (hereinafter referred to as 'Prior Classification') that could have been alleged for violations of any state or federal laws (including but not limited to the California Labor Code and the Fair Labor Standards Act (
Appellants refused to sign the General Release. Several meetings followed on June 8, 2015. Appellants claim that, at the first meeting, Louis-Johnson told Appellants and other employees that Bel Air would terminate their employment if they did not sign the General Release that day. At subsequent meetings on the morning of June 8 attended by Bel Air's owner, Terry Koosed, its General Counsel, Joshua White, and Louis-Johnson, Appellants continued
b. Bel Air's opposition
Bel Air filed an opposition supported by declarations from Louis-Johnson, Koosed, White, and other Bel Air employees. Bel Air denied that it had terminated Appellants' employment. It also claimed that no Bel Air employee "has ever been told that he had to sign any employment-related documents, or else he would lose his job." According to Bel Air, Appellants voluntarily left their jobs. Morales said that he had another job starting in a couple of months that paid substantially more, and Delabra said that Bel Air had "become too corporate." Bel Air claimed that Appellants picked up work equipment on June 8, 2015, giving the impression that they intended to continue working, but never returned to work although they were paid "through mid-June."
According to another Bel Air field installer, after the meetings on June 8, Morales said that he was "leaving Bel Air, and that he would soon be sitting on a beach in the Bahamas." Koosed said in his declaration that, after the meetings on June 8, 2015, Bel Air attempted to get Appellants to return to work and that Bel Air continued to pay them through June 15, 2015 (for Delabra), and June 19, 2015 (for Morales), "despite doing no work of any kind for Bel Air after the morning meeting on June 8."
3. The Trial Court's Ruling
Prior to the hearing on Appellants' motion to strike on November 23, 2015, the trial court issued a tentative ruling granting the motion. With respect to the first step of the anti-SLAPP analysis (which, as discussed below, focuses on whether a plaintiff's claims arise from protected conduct), the court's tentative ruling found that the "allegations that defendants advised, counseled, encouraged, and sought to persuade various Bel Air employees to pursue employment-related lawsuits against Bel Air, and that defendants encouraged other Bel Air employees to quit and sue fall under ... section 425.16(e)(2)." The court concluded that these allegations "make up the bases for the claims" in Bel Air's first three causes of action.
With respect to the second step of the anti-SLAPP procedure (concerning whether the alleged claims have merit), the court's tentative ruling concluded that Bel Air failed to meet its burden to show a probability that it would prevail on its claims. The court's conclusion was supported in part by its finding that the "litigation privilege applies to the litigation-related activity."
DISCUSSION
1. Appellants Did Not Forfeit Their Appeal by Failing to Provide a Reporter's Transcript
Bel Air argues that Appellants' appeal should be dismissed because Appellants did not include a transcript of the November 23, 2015 hearing as part of the appellate record. We reject the argument.
As reflected in the cases that Bel Air cites, dismissal of an appeal may be warranted in the absence of a reporter's transcript when such a transcript is necessary for meaningful review. (See, e.g., Foust v. San Jose Construction Co., Inc. (2011)
Bel Air argues that the November 23, 2015 hearing involved the parties' "oral arguments on whether the allegations at issue were incidental to [Bel Air's] causes of action, and prong two in its entirety." Bel Air does not claim that the hearing included any live testimony or the introduction of any other evidence. Nor does it identify any particular matter addressed at the hearing that this court must consider to decide the appeal. (See Cal. Rules of Court, rule 8.120(b) ["If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings," italics added].) While a record of the hearing would have been helpful to understand the trial court's reasoning, it is not necessary here where our review is de novo and the appellate record includes the trial court's written orders and all the evidentiary materials germane to Appellants' motion. (See
2. Procedure for Deciding Anti-SLAPP Motions
Section 425.16 provides for a "special motion to strike" when a plaintiff's claims arise from certain acts constituting the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." ( § 425.16, subds. (a) & (b)(1).) Consistent with the statutory scheme, ruling on an anti-SLAPP motion involves a two-step procedure. First, the moving defendant
Section 425.16, subdivision (e) identifies the categories of conduct that are protected under the anti-SLAPP statute and that may support a motion to strike if a plaintiff's claim arises from such conduct. One category of such protected conduct is "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." ( § 425.16, subd. (e)(2).) A claim arises from protected activity when it is "based on" such activity. ( City of Cotati v. Cashman (2002)
We apply a de novo standard of review to the trial court's order denying Appellants' motion to strike. ( Soukup v. Law Offices of Herbert Hafif (2006)
a. Appellants could rely on the allegations in Bel Air's complaint in showing that their alleged prelitigation communications were protected.
The key substantive issue determining whether Appellants' motion to strike satisfied the first prong of the anti-SLAPP analysis is whether Appellants' alleged statements encouraging other Bel Air employees to quit and "pursue employment-related lawsuits against Bel Air" amount to communications made in connection with protected petitioning activity. The parties agree that statements made in anticipation of litigation may fall into this category. However, they disagree on whether Appellants made a sufficient showing that Appellants were anticipating litigation when they allegedly made these statements to other Bel Air employees.
The parties also disagree sharply about the role of the pleadings and the supporting declarations in deciding this substantive issue. Appellants argue that, under the governing California Supreme Court cases, "it is the allegations on the face of the Complaint that determine whether the first prong of the Anti-SLAPP statute is met," and courts may not look "beyond the allegations of the complaint being challenged to discern intent or other motivation." On the other hand, Bel Air argues that Appellants were required to support their motion to strike with evidence showing that Bel Air employees were actually considering litigation seriously and in good faith at the time Appellants made the statements at issue. Bel Air claims that there is no authority "that somehow the language of the operative pleading can obviate the need to make an evidentiary showing of good faith and serious consideration
Neither party correctly articulates the governing standard. Appellants are incorrect in suggesting that the trial court was limited to considering Bel Air's complaint. Our Supreme Court has explained that, "[i]n deciding whether the initial 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' " ( Navellier v. Sletten (2002)
However, Bel Air is also incorrect in claiming that a defendant who asserts protected prelitigation conduct must support a motion to strike with evidence regardless of the content of the plaintiff's complaint. Bel Air does not cite any
We conclude that, if the complaint itself shows that a claim arises from protected conduct (supplemented, if appropriate, with the plaintiff's description of the factual basis for its claim in its declarations), a moving party may rely on the plaintiff's allegations alone in making the showing necessary under prong one without submitting supporting evidence. This conclusion is based on the language and purpose of the governing statute and on compelling practical considerations.
As mentioned, section 425.16, subdivision (b)(2) states that the court "shall consider" both the pleadings and the "supporting and opposing affidavits." (Ibid. ) But that subdivision does not state that a moving party must submit affidavits or other evidentiary support. Such a requirement would be inconsistent with the statutory purpose for the prong one showing.
The prong one inquiry concerns the decision "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." ( Navellier, supra,
Consistent with the primary role of the complaint in identifying the claims at issue, courts have rejected efforts by moving parties to redefine the factual basis for a plaintiff's claims as described in the complaint to manufacture a ground to argue that the plaintiff's claims arise from protected conduct. For example, in
Similarly, courts have rejected attempts by plaintiffs opposing anti-SLAPP motions to disavow their own allegations in favor of evidence that is inconsistent with their complaints. For example, in Comstock the court held that the cross-complainant's claim that the cross-defendant, Aber, had made a complaint to the police brought the claim within the scope of the anti-SLAPP statute, despite the cross-complainant's argument in opposing the anti-SLAPP motion that Aber did not actually complain to the police. ( Comstock, supra,
Thus, the rule in section 425.16, subdivision (b)(2) that a court must consider affidavits as well as pleadings in the first step of the anti-SLAPP procedure does not provide license to ignore the allegations of a plaintiff's complaint. Rather, it provides a defense against artful pleading in which "the defendant's act of petitioning the government is made to appear as defamation, interference with business relations, restraint of trade and the like." ( Wilcox v. Superior Court (1994)
This conclusion is also supported by a compelling practical concern. As in this case, a defendant may deny acts alleged in the plaintiff's complaint yet also recognize that those allegations describe protected conduct. If the defendant is required to support an anti-SLAPP motion with evidence about the nature of his or her conduct rather than relying on the complaint itself, the defendant might not be able to do so without contradicting his or her own understanding of the relevant events. As mentioned above, this would create
Our conclusion that Appellants could rely upon the allegations of the complaint in bringing their motion to strike is not affected by Appellants' decision to submit declarations in support of their motion that disputed Bel Air's allegations in some respects. As mentioned above, Appellants denied
Having concluded that Appellants could properly argue that the allegations in the complaint are sufficient to show that Bel Air's claims arise from protected activity, we also hold that Appellants did not forfeit that argument by choosing to controvert the factual basis of Bel Air's claims in connection with the second prong of the anti-SLAPP procedure. A contrary rule would place an unfair burden on a defendant filing an anti-SLAPP motion when
Such a rule would be inconsistent with the purpose of the anti-SLAPP procedure in another respect as well. An anti-SLAPP motion is a preliminary procedure designed to weed out meritless claims arising from protected conduct. It is not a device to decide the ultimate merits of a claim by resolving factual disputes. ( Kyle v. Carmon (1999)
Thus, Appellants could permissibly base their anti-SLAPP motion on Bel Air's allegations as set forth in Bel Air's complaint and explained in Bel Air's declarations, so long as the allegations themselves show that Bel Air's claims arise from acts that are protected under section 425.16, subdivision (e). As discussed below, Bel Air's allegations do so.
Section 425.16, subdivision (e) identifies the categories of conduct that are protected under the statute. That conduct includes a "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." ( § 425.16, subd. (e)(2).)
Although this description can be read to refer to pending litigation, our Supreme Court has explained that communications that are " 'preparatory to or in anticipation of the bringing of an action or other official proceeding' " are within the scope of protected conduct under Code of Civil Procedure section 425.16 just as they are within the protection of the litigation privilege under Civil Code section 47, subdivision (b). ( Briggs, supra,
Such conduct "preparatory to" litigation can include communications in connection with counseling or encouraging others to sue. For example, in Briggs , the defendant-a nonprofit corporation that counseled tenants and mediated landlord-tenant disputes-counseled a tenant concerning a malfunctioning refrigerator, leading to a successful small claims action by the tenant against her landlord. ( Briggs, supra, 19 Cal.4th at pp. 1109-1110,
Bel Air acknowledges that prelitigation conduct may be protected under section 425.16, but argues that "the courts have imposed a 'good faith and serious consideration' requirement unique to pre-litigation activity." Bel Air cites authority explaining that this requirement is intended to limit protection of prelitigation communications to circumstances in which future litigation is "genuinely contemplated," rather than just a negotiating tactic or a hypothetical possibility. ( People ex rel. Fire Ins. Exchange v. Anapol (2012)
The requirement to show that litigation is seriously contemplated ensures that prelitigation communications are actually connected to litigation and that their protection therefore furthers the anti-SLAPP statute's purpose of early dismissal of meritless lawsuits that arise from protected petitioning activity. ( § 425.16, subd. (a) ; Anapol , supra ,
Thus, for example, when a cause of action arises from conduct that is a "necessary prerequisite" to litigation, but will lead to litigation only if negotiations fail or contractual commitments are not honored, future litigation is merely theoretical rather than anticipated and the conduct is therefore not protected prelitigation activity. (See, e.g., Mission Beverage, supra, 15 Cal.App.5th at pp. 703-704,
In contrast to the mere hypothetical possibility of litigation in such circumstances, Bel Air's complaint in this case shows that its contract claims arise from Appellants' alleged serious and active encouragement of litigation.
Bel Air's declarations further explain the factual basis for Bel Air's claim that Appellants attempted to persuade other employees to quit and sue. (See Dignity Health,
Bel Air also argued below that Appellants were themselves seriously considering litigation at the time they allegedly urged others to quit and sue. Bel Air submitted the declaration of a Bel Air senior field installer, Kenneth Marquez, who said that he attended a meeting of field installers with Morales on June 8, 2015, during which appellant Morales said "that he was leaving Bel Air, and that he would soon be sitting on a beach in the Bahamas." Bel Air argued in the trial court that the statement gave "the impression that [Morales] intended to sue Bel Air." Bel Air's argument that Appellants intended to sue certainly suggests that Appellants anticipated litigation before they left Bel Air, and also suggests that
Under section 425.16, protected conduct includes "any written or oral statement or writing made in connection with an issue under consideration or review by a ... judicial body." ( § 425.16, subd. (e)(2), italics added.) A statement has a sufficient "connection" with anticipated litigation if the person making the statement is engaged in a serious effort to encourage or counsel litigation by another.
This conclusion is consistent with our Supreme Court's decisions holding that counseling or encouraging litigation by others is privileged and protected. As discussed above, the court has explained that a person's prelitigation communications may be "in furtherance of the person's right of petition" even if the communications were made on behalf of another. ( § 425.16, subd. (b)(1) ; Briggs, supra,
In Rubin v. Green (1993)
Such a rule would also be arbitrary. By making the protected status of a communication contingent on the intent of the recipient, the rule would mean that the same communication is protected when made to some persons but not others. For example, if the organization in Briggs had advised a number of similarly situated tenants to sue their landlord, the same advice would be treated differently depending upon whether or not particular tenants seriously considered following that advice. Such an irrational result is inconsistent with the legislative requirement that section 425.16 be "construed broadly." ( § 425.16, subd. (a).)
We therefore conclude that Appellants' alleged conduct in encouraging other Bel Air employees to sue was protected prelitigation conduct.
c. Appellants' alleged prelitigation activity was not incidental to Bel Air's claims.
Bel Air claims that, even if Appellants' alleged encouragement of other employees to sue was protected prelitigation activity, such acts cannot support an anti-SLAPP motion here because they were merely "incidental or collateral to the causes of action in which they appear." Bel Air argues that the portion of Appellants' alleged communications with other Bel Air employees that actually urged a breach of the employees' contracts was Appellants' alleged encouragement for those employees "to not do their jobs," and that the encouragement to sue was incidental to that interference. This argument amounts to an attempt to re-characterize Bel Air's own allegations to avoid an anti-SLAPP challenge, and we therefore reject it. (See Comstock, supra,
Allegations that are merely incidental or collateral to a plaintiffs' claim are not subject to a motion to strike under section 425.16. (
Here, Appellants' alleged prelitigation communications with other employees did not simply provide evidence of liability or occur close in time to some other act that
The complaint does not allege any motivation for Appellants' alleged encouragement of other employees to quit other than to pursue litigation. According to Bel Air's declarations, Appellants presented this alternative as a lucrative alternative to continued employment at Bel Air. According to Marquez, Morales said he would "soon be sitting on a beach in the Bahamas." Daniel Hernandez, another Bel Air field installer, said in his declaration that Morales told him he was "leaving Bel Air, and that he would soon be sitting on a beach in the Bahamas," and that in the same conversation Morales "encouraged me to join him and quit my job at Bel Air." Appellants' alleged encouragement to sue is therefore an integral part of the communications on which Bel Air's claims for tortious interference and breach of contract are based, rather than just evidence of some other decision or conduct that forms the basis for Bel Air's claims. (See Park,
Section 425.16, subdivision (c)(1) provides that, with exceptions for certain causes of action not relevant here, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." Bel Air nevertheless argues that Appellants should not be awarded attorney fees, even if they are successful on appeal, because their motion would have no or minimal effect. Bel Air cites cases holding that a defendant that files an anti-SLAPP motion that is only partially successful and that does not provide any practical benefit is not entitled to attorney fees under section 425.16 as a "prevailing defendant." (See, e.g., Moran v. Endres (2006)
As a result of our holding reversing the trial court's order, Appellants have prevailed in full on their motion to strike. They are therefore a "prevailing defendant" for purposes of section 425.16, subdivision (c)(1). Moreover, the relief they have obtained is not illusory. As explained below, their motion results in the dismissal of one of Bel Air's causes of action (intentional interference) and eliminates one of the two theories of contract breach in two other causes of action (i.e., encouragement of other employees to quit and sue). Appellants are therefore entitled to their attorney fees.
5. Conclusion
Bel Air's first three causes of action arise in whole or in part from protected prelitigation activity. As discussed above, Bel Air's first cause of action for intentional interference is based upon the allegation that Appellants urged other Bel Air employees to quit and sue the company. Bel
On appeal, Bel Air has not claimed any error in the trial court's ruling that Bel Air failed to show a probability of success under prong two of the anti-SLAPP procedure. Thus, Bel Air's claims that arise from alleged protected activity under section 425.16, subdivision (e) must be dismissed. This means that Bel Air's first cause of action must be dismissed in its entirety and the portions of Bel Air's second and third causes of action that are based on the claim that Appellants encouraged other employees to quit and sue must be stricken. (See Baral, supra,
The trial court's order denying Appellants' motion to strike under Code of Civil Procedure section 425.16 is reversed. Bel Air's first cause of action is dismissed. The following language and the claims it supports are stricken from paragraphs 17 and 23 in Bel Air's second and third causes of action: "and acting in contravention of their duties of care and loyalty, seeking to encourage other BEL AIR employees to quit and sue BEL AIR, and thereby disrupt BEL AIR's business operations."
Appellants are entitled to attorney fees on their motion to strike and their attorney fees and costs on this appeal. The case is remanded for the trial court's determination of the amount of attorney fees and for further proceedings on the remaining portions of Bel Air's complaint and on Appellants' cross-complaint.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
Notes
Subsequent undesignated statutory references are to the Code of Civil Procedure. "SLAPP" is an acronym for "[s]trategic lawsuit against public participation." (Briggs v. Eden Council for Hope & Opportunity (1999)
Appellants submitted the document explaining the new compensation procedures and the General Release as exhibits to their motion to strike.
As discussed further below, the record on appeal does not include a reporter's transcript, and therefore does not show the trial court's reasoning at the hearing.
Where a defendant denies engaging in protected conduct, one might argue that a motion to strike a plaintiff's claim that alleges such conduct does not meet the purpose of an anti-SLAPP motion. Section 425.16 explains that the Legislature intended the anti-SLAPP procedure to protect against "lawsuits brought primarily to chill the valid exercise of the constitutional right of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) If a defendant has not actually exercised such a right, how can a lawsuit chill it? However, the argument is ultimately both irrelevant and wrong. It is irrelevant because our Supreme Court has explained that a party bringing an anti-SLAPP motion need not prove that a plaintiff's claim was intended to, or actually did, chill any protected activity. (See Equilon Enterprises v. Consumer Cause, Inc. (2002)
On the other hand, we do not agree with Appellants' suggestion that a court is precluded from considering evidence of the defendant's subjective intent if the complaint itself is not sufficient to show that alleged communications were in anticipation of litigation. The suggestion is inconsistent with the language of section 425.16, subdivision (b)(2), and would unreasonably limit a court's analysis of the plaintiff's claims when a complaint is artfully drafted or simply unclear. For example, in Salma v. Capon (2008)
The litigation privilege established by Civil Code section 47, subdivision (b) and the anti-SLAPP procedure established by Code of Civil Procedure section 425.16 are substantively different and "serve quite different purposes." (Flatley v. Mauro (2006)
The trial court sustained Appellants' objections to some of Bel Air's declarations, including this testimony by Koosed. We cite the testimony only for its relevance in clarifying the basis for Bel Air's allegations, not as competent evidence to prove particular facts.
Bel Air claims that no lawsuit was filed, but the record shows that Appellants have in fact filed a cross-complaint against Bel Air alleging employment claims. At oral argument, Bel Air pointed out that, while Appellants have sued, the employees that they allegedly encouraged to sue have not. However, as discussed below, Appellants' own right to petition is at issue through Bel Air's allegation that they encouraged others to sue. Appellants' decision to file a cross-complaint is relevant to their intention to exercise that right.