Opinion
Aрpellants, Sam Martinez, Frank Dickson, and Ron Rocha, challenge the trial court’s denial of their motion to strike the defamation complaint filed by respondent, lohn Hailstone, as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure 1 section 425.16. The trial court concluded that the alleged defamatory statements did not concern an issue of public interbst and therefore the complaint did not arise from protected activity.
As discussed below, the trial court erred in denying the motion on that ground. The subject stаtements were protected under the anti-SLAPP law. Nevertheless, Hailstone established that his claim has at least minimal merit. Accordingly, the trial court’s order denying appellants’ motion to strike will be affirmed.
BACKGROUND
Hailstone was employed as a senior business agent by the Teamsters Local Union No. 948 (Local 948). Local 948 represents over 10,000 cannery workers.
*733 The Teamsters Union is a three-tiered organization. The International Brotherhood of Teamsters (IBT) is the parent union. The IBT issues charters for the formation of local unions organized by craft and/or geographic area. Each local union is affiliated with an intermediate body known as the joint council. The joint council resolves jurisdictional disputes between the affiliated unions and conducts internal union disciplinary hearings.
Local 948 is also affiliated with the Teamsters Cannery Council. The Cannery Council is an association of three local unions that was formed primarily to negotiate with California Processors, Inc. (CPI), a multiemployer association. The multiemployer collective bargaining agreement between the Cannery Council and CPI covers approximately 16,000 cannery and food processing workers in California. Hailstone served on the Cannery Council’s executive board.
Under this multiemployer collective bargaining agreement, a health and welfare trust fund, the Joint Benefit Trust Fund (JBT), was established. The JBT is administered by a board composed of equal numbers of union-appointed and management-appointed trustees. By virtue of his position on the Cannery Council, Hailstone served as a trustee of the JBT.
Hailstone was also a founding member of the Nationаl Association of Business Representatives (NABR), a union representing the business agents employed by Local 948.
In June 2007, Hailstone was suspended from his employment by appellant Sam Martinez, the Local 948 secretary-treasurer, for allegedly “double dipping” into union funds. On several occasions, Hailstone had received both a mileage reimbursement from the JBT and a gas allowance from Local 948 for a business-related activity. In a confirming letter to Hailstone dated June 19, 2007, Martinez stated: “[1] You were suspended pending further investigation because of unlawful double dipping. A recent investigation has determined that on a number of occasions you were reimbursed by the Local for expenses of attending trust meetings, while similarly being reimbursed by the Trust Fund without reimbursing the Union for those expenses. This is double dipping, which is a breach of your fiduciary duty to the Union’s membership and a violation of Federal Law.” Martinez sent copies of this letter to: John Hurley, the management side cochair of the JBT and the president of CPI; John Sousa, the president of the joint council; Chuck Mack, the IBT president for the western rеgion; and the Local 948 executive board. Information regarding these alleged violations was also sent to the Department of Labor.
Martinez continued with his investigation and, in doing so, spoke with others about the alleged double dipping.
*734 On July 10, 2007, Hailstone was terminated as a Local 948 business agent. However, this termination did not automatically affect Hailstone’s other appointments. Hailstone retained his positions as a Cannery Council executive board member and as a JBT trustee.
Six days after his termination, Hailstone filed the underlying complaint for defamation against Martinez, Frank Dickson, the Local 948 president, and Ron Rocha, an IBT special representative assigned to assist Local 948. Hailstone alleged that appellants published false statements accusing Hailstone of criminal activity and breaches of fiduciary duty both orally and in writing.
Appellants responded by filing a motion to strike the defamation complaint as a SLAPP under section 425.16. Appellants argued the alleged defamatory statements concerned an issue of public interest, i.e., the misapproрriation of union funds, and thus fell within the ambit of the anti-SLAPP statute. They further asserted that Hailstone could not demonstrate a probability of prevailing on the merits of the defamation action because the subject statements were privileged under both California and federal law.
The trial court concluded that appellants had failed to establish that the alleged statements were entitled to protection under section 425.16, i.e., that they were made in connection with a public issue or an issue of public interest. Accordingly the trial court denied the motion to strike. The trial court did not reach the issue of whether Hailstone had demonstrated a probability of prevailing on his claim.
DISCUSSION
1. The anti-SLAPP statute.
Section 425.16 was enacted in 1992 to provide a procedure for expeditiously resolving “nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue.”
(Sipple v. Foundation for Nat. Progress
(1999)
When served with a SLAPP suit, the defendant may immediately move to strike the complaint under section 425.16. To determine whether this motion should be granted, the trial court must engage in a two-step process.
(City of Cotati v. Cashman
(2002)
The court first decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity.
(City of Cotati v. Cashman, supra,
To establish the requisite probability of prevailing, the plaintiff need only have “ ‘ “stated and substantiated a legally sufficient claim.” ’ ”
(Navellier v. Sletten, supra,
The questions of whether the action is a SLAPP suit and whether the plaintiff has shown a probability of prevailing are reviewed independently on appeal.
(ComputerXpress, Inc.
v.
Jackson
(2001)
2. Appellants met their burden of demonstrating that the allegedly defamatory statements were entitled to protection under section 425.16.
Section 425.16, subdivision (e), clarifies what speech constitutes an “ ‘act in furtherance of a person’s right of petition or free speech under the *736 United States or California Constitution in connection with a public issue.’ ” Such speech 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.” (§425.16, subd. (e).)
Appellants contend that their written and oral statements were in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest.
It should first be noted that protection under section 425.16 for statements in connection with a public issue or an issue of public interest is not dependent on those statements having been made in a public forum. Rather, subdivision (e)(4) of section 425.16 applies to private communications concerning issues of public interest.
(Terry v. Davis Community Church
(2005)
Section 425.16 does not define “an issue of public interest.” Nevertheless, the statute requires the issue to include attributes that make it one of public, rather than merely private, interest.
(Weinberg v. Feisel
(2003)
Being based on case law, the precise boundaries of a public issue have not been defined. Nevertheless, in each case where it was determined that a
*737
public issue existed, “the subject statements either concerned 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 [citation].”
(Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO
(2003)
Further, “public interest” within the meaning of the anti-SLAPP statute is not limited to governmental matters.
(Du Charme
v.
International Brotherhood of Electrical Workers
(2003)
For example, in
Damon v. Ocean Hills Journalism Club
(2000)
Here, the subject statements were not made in connection with a topic, person or entity of
widespread
public interest. Rather, this case falls into the category of cases exemplified by
Damon
and
Macias
where the “First Amendment activity is connected to an issue of interest to only a limited but definable
portion
of the public; a
narrow
segment of society consisting of the members of a private group or organization—a 3,000-member homeowners association in the former, a 10,000-member union local in the latter.”
(Du Charme, supra,
In
Du Charme, supra,
Here, based on Du Charme, the trial court concluded that the allegedly defamatory statements were not made in connection with a public issue or an issue of public interest. Du Charme is analogous to this case in that Hailstone had been suspended from union employment and Du Charme had been terminated as the union’s business manager before the allegedly defamatory statements were published. However, unlike Du Charme, Hailstone’s ties to the union had not been completely severed.
First, when Martinez published the “double dipping” accusations in his June 19 letter, Hailstone had merely been suspended from his employment. An investigation into this alleged illegal activity was ongoing.
More importantly, at that time, Hailstone was still a Cannery Council executive board member representing Local 948 and a JBT trustee. Under these circumstances, Hailstone’s alleged misappropriation of union funds was of interest, not only to the union officials to whom the allegedly defamatory statements were made, but also to a definable portion of the public, i.e., the more than 10,000 members of Local 948. The statements wеre made in connection with an ongoing controversy that was significant to the Local 948 members, i.e., an investigation by Local 948’s elected representatives into the possibly illegal actions of a union official who was currently serving in a fiduciary capacity as a trustee of the trust that provides health and welfare benefits to those members. (Cf.
Ruiz v. Harbor View Community Assn., supra,
Accordingly, the trial court incorrectly concluded that appellants failed to meet their burden of establishing that the allegedly defamatory statements were entitled to protection under section 425.16. Thus, this court must take *739 the next step in the analysis and determine whether Hailstone met his burden of establishing a probability of prevailing on the defamation complaint.
3. Hailstone established a probability of prevailing on the defamation complaint.
The gravamen of the complaint is appellants’ accusation that Hailstone committed a crime. According to Hailstone, the June 19 letter written and published by Martinez was libelous on its face. Hailstone further asserts that appellants are liable for slander because of oral statements they each allegedly made to the effect that Hailstone had stolen from the union and had committed a federal crime. These statements are also the basis for invasion of privacy, negligent infliction of emotional distress and intentional infliction of emotional distress causes of action.
Appellants take the position that, because Hailstone admitted he received both allowances, the statements they made were not defamatory because they were true. However, a crime based on alleged “double dipping” requires proof of fraud.
(U.S. v. Bush
(9th Cir. 1995)
Appellants further argue that, whether true or not, their statements were privileged under both California and federal law. According to appellants, these statements are shielded by California’s common interest privilege, the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.), the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA; 29 U.S.C. § 401 et seq.), and the Employee Retirement Income Security Act of 1974 (ERISA; 29 U.S.C. § 1001 et seq.). 2
a. The common interest privilege.
Civil Code section 47 provides: “A privileged publication or broadcast is one made: [][] . . . [f] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested . . . .” Thus, it extends a conditional privilege against defamatory statements made without
*740
malice on subjects of mutual interest.
(Noel
v.
River Hills Wilsons, Inc.
(2003)
In the case of the common interest privilege, malice cannot be inferred from the communication itself. (Civ. Code, § 48.) Moreover, the malice necessary to defeat a qualified privilege is “actual malice.” Such malice is established by a showing that the publication was motivated by hatred or ill will toward the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.
(Sanborn v. Chronicle Pub. Co.
(1976)
Appellants argue that in making the subject statements to union members, union employees and JBT administrators, they were communicating with persons sharing a common interest. Hailstone counters that, while these persons may have shared a common interest in knowing that Hailstone had been suspended from employment, оnly the individuals involved in the decision of whether to suspend or terminate Hailstone had any interest in the allegation that he had stolen union funds. However, whether the allegedly defamatory statements were made on a subject of mutual interest need not be determined at this juncture. The common interest privilege is conditional and Hailstone has made a sufficient prima facie showing of malice.
In his declaration opposing the motion to strike, Hailstone recounted past interactions and confrontations with appellants to support his claim that appellants bore him ill will. According to Hailstone, Martinez knew that Hailstone had assisted in a Department of Justice investigation concerning allegations that Martinez and his slate of candidates had engaged in illegal ballot box stuffing during the 2005 election of Local 948 officers. Further, Hailstone was a founding member of the NABR, the union that represents Local 948 business agents, and while serving as the secretary-treasurer of Local 948, Hailstone agreed to continue a NABR contract provision that required “just cause” to terminate a business agent. Hailstone stated that the existence of this “just cause” requirement angered appellants and that appellants had engaged in angry outbursts and threatening behavior toward him. Although we express no opinion on this issue, based on this evidence of animosity between the parties, a trier of fact could find that appellants’ accusations of criminal conduct were motivated by hatred or ill will toward *741 Hailstone and therefore were made with actual malice. As noted above, a showing that the claim has minimal merit is all that is rеquired to defeat an anti-SLAPP motion.
Hailstone also contends the circumstances surrounding appellants’ publication of the defamatory statements demonstrate that appellants lacked a good faith belief in the truth of those statements. According to Hailstone, the Local 948 bylaws authorize reimbursement for both gas and mileage. Hailstone avers that, 18 months before he was suspended, he informed Martinez of these reimbursement policies. Further, Martinez approved all of the expense reimbursement claims Hailstone submitted before June 2007, including requests for reimbursement for mileage to the trust meetings and gas from Local 948. Thus, Hailstone argues, appellants’ claim that they were not aware that Hailstone was receiving both a gas allowance and a mileage allowance until June 2007 is not true. Hailstone also points to the timing of the statements as evidence of appellants’ reckless disregard for the truth. Hailstone notes that appellants published their accusation that he had committed a federal crime before any investigation had been made into the accuracy of that accusation and before Hailstone had been given an opportunity to respond. Again, although we express no opinion, from this evidence a trier of fact could find appellants acted with malice in that they demonstrated a reckless disregard for the accuracy of their statements.
b. Federal law privileges.
Under the NLRA and the LMRDA, defamatory statements made in the context of a labor dispute are protected unless published with malice.
(Linn
v.
Plant Guard Workers
(1966)
Appellants argue that, because their statements were made on matters of union business to union officials, i.e., were made in the context of a labor dispute, Hailstone’s defamation claims are preempted by federal law. However, as discussed above, Hailstone made a prima facie showing of malice. Therefore, at this point in the proceedings, appellants’ defense based on the above federal privileges does not defeat Hailstone’s defamation complaint.
Appellants further contend that, because both Martinez and Hailstone were JBT trustees, Hailstone’s state defamation claim is preempted by
*742
ERISA. ERISA preempts state law claims that relate to an employee benefit plan.
(Abraham v. Norcal Waste Systems, Inc.
(9th Cir. 2001)
Appellants argue that, because the defamation claim seeks to penalize an ERISA trustee’s speech to оther ERISA trustees and the plan administrator, it bears on ERISA regulated relationships and therefore is preempted by federal law. According to appellants; imposing state law liability on Martinez for his statements “would adversely affect the ERISA plan itself by threatening fiduciaries of the plan with personal liability for zealously performing their fiduciary obligations.”
However, making defamatory statements while acting as an ERISA trustee is outside the performance of that trustee’s fiduciary obligations. Further, the complaint alleges claims against the trustee рersonally, not against the ERISA trust. Thus, it imposes no burdens on the plan. Accordingly, Hailstone’s complaint is not preempted by ERISA.
c. The false light, invasion of privacy, and emotional distress claims.
Appellants contend Hailstone has not demonstrated a probability of prevailing on his claim that he was placed before the public in a false light. Appellants first argue that this false light claim is “surplusage” because the complaint also contains a specific cause of action for libel. However, an anti-SLAPP motion is not the correct vehicle for asserting this position. Rather, this argument is properly the subject of a demurrer. (Cf.
Kurwa
v.
Harrington, Foxx, Dubrow & Canter, LLP, supra,
Appellants also argue that liability for placing Hailstone in a false light cannot be imposed based on a constitutionally protected publication. However, as discussed above, defamatory statements are not protected.
Regarding the invasion of privacy cause of action, appellants argue that Hailstone has failed to establish that he had a legally protected privacy interest in the information pertaining to his employment. Appellants assert *743 that the union’s disclosure of Hailstone’s “double dipping” may be embarrassing to Hailstone but can hardly be considered a serious invasion of his personal privacy. However, Hailstone’s complaint is not based on disclosure of the mileage and gas reimbursements. Rather, the complaint is based on appellants’ accusation that Hailstone committed a crime.
Appellants further argue that Hailstone failed to properly plead the causes of action for negligent and intentional infliсtion of emotional distress. Again, these alleged defects are properly the subject of a demurrer, not an antiSLAPP motion.
In sum, appellants met their burden of establishing that the allegedly defamatory statements were entitled to protection under section 425.16. Nevertheless, Hailstone established that his defamation claim has at least minimal merit. Accordingly, the order denying appellants’ motion to strike must be affirmed.
DISPOSITION
The order is affirmed. The parties shall bear their own costs on appeal.
Wiseman, Acting P. J., and Dawson, J., concurred.
A petition for a rehearing was denied Januаry 20, 2009, and appellants’ petition for review by the Supreme Court was denied April 1, 2009, S170185.
Notes
All further references are to the Code of Civil Procedure unless otherwise indicated.
At oral argument, appellants’ counsel asserted that Hailstone had not presented any evidence that either Dickson or Rocha in fact made the alleged defamatory statements. Rather, according to counsel, the only evidence of the alleged defamation was the June 19, 2007, letter. However, appellants did not take this position in either the trial court or their opening brief. Therefore, we will not consider this argument in this appeal.
(Ochoa
v.
Pacific Gas & Electric Co.
(1998)