Osborne v. Pleasanton Automotive Co., LPOsborne v. Pleasanton Automotive Co., LP
Case Information
*1 Filed 10/31/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
EVA OSBORNE,
Plaintiff and Respondent, A167118
v. (Alameda County
PLEASANTON AUTOMOTIVE Super. Ct. No. RG20058903) COMPANY, LP, et al., Defendants;
BOB SLAP,
Defendant and Appellant.
In March 2020, Plaintiff Eva Osborne sued Defendants Pleasanton Automotive Company, LOP Automotive Company LP, HAG Automotive Investments LP (collectively, HAG), and its Executive General Manager and Market Area Vice President, Bob Slap. The suit asserted eight causes of action for discrimination, retaliation, harassment, failure to prevent harassment and retaliation and wage and hour violations arising from alleged workplace misconduct by Slap during four years when Osborne was working as Slap’s executive assistant.
Two-plus years into the litigation, Slap filed a cross-complaint against Osborne, alleging statements in a letter she submitted to HAG’s human resources director three months before she filed suit constituted libel, slander, intentional infliction of emotional distress, intentional interference *2 with contractual relations and negligence. In response, Osborne filed a special motion to strike (the motion) under the anti-SLAPP law (Code Civ. Proc., § 425.16), [1] contending Slap’s c laims against her arose out of protected activity she undertook in anticipation of litigation. She asserted Slap could not show he would likely prevail on the merits because, among other reasons, her statements were absolutely privileged by Civil Code section 47, subdivision (2).
In a thorough, well-reasoned opinion, Alameda Superior Court Judge Eumi Lee granted Osborne’s motion, concluding her statements were protected activity under the anti-SLAPP statute and rejecting S lap’ s arguments that they were extortionate and illegal as a matter of law. The court held Slap could not establish minimal merit in his claims, as required to withstand an anti- SLAPP challenge, because Osborne’s statements were both absolutely and conditionally privileged under Civil Code section 47 and Slap failed to overcome the conditional privilege with a showing of malice. Slap appealed.
Applying de novo review, we likewise reject Slap’s attempt to invoke an exception to the anti-SLAPP statute for activity that is illegal as a matter of law and conclude the litigation privilege bars Slap’s claims , preventing him from meeting his burden under the second step of the anti-SLAPP analysis to show his claims have minimal merit. We therefore affirm the trial court’s decision granting Osborne’s motion. We need not reach Osborne’s alternative arguments that the conditional privilege applies, that Slap has failed to show malice or that Slap has failed to make a prima facie showing on his claims.
BACKGROUND
We take the following facts from the pleadings and the parties’ evidence on the special motion to strike.
I.
The Human Resources Letter and the Underlying Litigation HAG employed Slap in 1993 and promoted him several times over the years. Slap was serving as HAG’s Market Area Vice President in 2015, when HAG hired Osborne to serve as his executive assistant. HAG paid Osborne on an hourly basis.
It is uncontested that, in addition to her professional duties, Slap had Osborne perform personal errands and tasks for him. Slap alleged these personal tasks were part of her job duties, which HAG authorized because they “allowed Slap to focus on his duties as Market Area Vice President.” Osborne alleged Slap “required her to perform demeaning personal tasks such as carry his bags, launder his gym clothes, shine his shoes, cut up his food [and] get up from her desk and come into his office for the purpose of refilling his water glass” and she was “routinely not paid for all hours worked and required to work overtime for which she received no overtime compensation.”
Osborne alleged she had repeatedly complained to HAG’s controller and Human Resources (HR) director, Nancy Cassity, about these matters, leading Slap to retaliate against her and that HAG took no action to investigate or remediate Slap’s conduct. In 2019, Osborne again complained to Cassity that she was not being properly compensated for personal tasks that Slap asked her to perform. Cassity instructed her to log all her time — for both business- related tasks and the personal errands Slap required her to perform — and to file any workplace-related complaints in writing.
According to Slap, around that same time Osborne “essentially blackmailed” him by threatening to report his misuse of her time and function unless he made her a salaried employee. Slap, in turn, reported this alleged incident to Cassity.
On December 20, 2019, Osborne emailed Cassity a four-page, single spaced letter (the HR letter) , which she referred to as a “Formal Complaint,” documenting Slap ’s alleged misconduct . In it, she stated that Cassity had recently directed her to put her concerns in writing before any action could be taken or her concerns could be addressed, and, accordingly, she was “sending you this letter in a final effort to have my concerns acknowledged, addressed and resolved.” We describe the letter more fully below in the analysis section of this opinion. In brief, the letter described at length instances of Slap’s alleged misconduct, accused him of repeatedly making inappropriate and demeaning requests of her, stated he refused to allow her to log all of her time and repeatedly failed to ensure she was paid for all the work he asked her to do, stated she had discussed Slap’s behavior with Cassity “on numerous occasions” hoping Slap’s behavior would improve, stated he had retaliated against her when she complained and said she “now” found her working conditions “unbearable and intolerable . At around the same time, she contacted and retained counsel, who the following month sent an email to HAG’s counsel inquiring about the state of the investigation HAG had told Osborne it would undertake, demanding documents and giving notice of the obligation to preserve evidence.
In March 2020, three months after sending the HR letter, [2] Osborne sued Defendants. She asserted claims solely against HAG for discrimination; retaliation; failure to prevent harassment, discrimination, and retaliation; and failure to pay wages and overtime. She asserted a claim for hostile work environment harassment based on sex against all Defendants, including Slap. Among other facts, the complaint alleged , “[i] n 2017 when Plaintiff complained to Slap that a coworker was sexually harassing her, including touching her inappropriately, Slap refused to investigate or take remedial action to address her concerns. Slap then promoted the coworker to Parts Manager and, in a subsequent lawsuit filed by the coworker, ordered Plaintiff to lie under oath. ” It also alleged that Slap “repeatedly expressed that . . . he hated all women.”
In August 2022, Slap filed his cross-complaint, contending twenty-five statements in the HR letter, as well as one oral statement Osborne made to Cassity, were false. Based on the allegedly false statements, he asserted claims against Osborne for libel, slander per se, intentional infliction of emotional distress, intentional interference with contractual relations, and negligence. Those allegedly false statements include:
(1) that Slap told Osborne he hated all women; [3] (2) that Osborne had complained to Slap that a coworker was sexually harassing her;
*6 that Slap forced Osborne to carry multi-gallon water containers, while she was eight-months pregnant, over her objections and against her doctor’s orders;
that Slap demanded Osborne put his personal purchases on her credit card;
that Slap pressured Osborne to loan him money; that Slap demanded that Osborne slice his food; that Slap slammed his water cup on Osborne’s desk in response to her request to pick up her sick child from school, and then demanded that she re-fill his cup before she left;
that Slap forced her to accompany him into a hospital room, while he was clothed in just a hospital gown, and while he answered “personal questions” from medical professionals;
that Slap forced Osborne to take delivery of his new dog while he was out of town;
that Slap asked Osborne to clean up his dog’s excrement; that Slap attempted to conspire against HAG to provide Osborne with a de facto, off-the-books pay increase;
that Slap denied her a salary;
that Slap did not allow Osborne to log her hours for the time she spent performing personal errands for him;
that Slap instructed her not to contact HR when it would have been appropriate to do so; and
that Slap had Osborne doing only personal work for him over the four prior years of her employment.
II.
The Anti-SLAPP Motion and Briefing
Osborne filed a special motion to strike Slap’s cross -complaint. She argued the “[p]relitigation statements” she made in the HR letter that gave rise to Slap’s claims against her were protected activity because they were made in connection with potential litigation that was contemplated in good faith and constituted protected activity under section 425.16, subdivision (e)(1) and (e)(2). Further, she argued that because the statements were made in connection with potential litigation, they were protected by the litigation privilege established by Civil Code section 47, subdivision (b). As evidence that the December 19, 2019 HR letter was sent in anticipation of litigation, she provided a declaration stating that she had been contemplating litigation in the days leading up to December 19, 2019, and that she had retained a law firm on December 27, 2019, and attached a copy of a December 20, 2019 email sent to her by that law firm conveying a retainer agreement and requesting a retainer.
Osborne also asserted that Civil Code section 47, subdivision (c) conditionally privileges the HR letter, subject to a finding of malice, because it was a workplace harassment complaint and asserted that Slap had proffered no evidence demonstrating malice in the form of “ ill will going beyond that which the occasion . . . justifies. In addition, Osborne asserted Slap could not meet his burden of prevailing on the merits because he could not overcome either asserted privilege and because he failed to adduce prima facie evidence supporting one or more elements necessary to each of his claims.
In his opposition, Slap attacked Osborne’s assertions of privilege. He argued the absolute litigation privilege did not apply because no party *8 anticipated litigation in December 2019. He then challenged Osborne ’s definition of “ malice ” for purposes of the conditional privilege, contending he demonstrated malice through evidence that Osborne knew her statements to Cassity were false and evidence that she engaged in what he referred to as attempted blackmail. He also claimed to have proffered prima facie evidence in support of each element of his claims.
In her reply brief, Osborne curiously suggested she “made no such claim” that the HR letter is absolutely privileged and focused on the conditional privilege and Slap’s asserted failure to show malice as well as on the legal insufficiency and inadequacy of the prima facie showing supporting, Slap’s claims.
The trial court issued a tentative opinion granting the motion, but at
the hearing Slap disputed having conceded the HR letter was protected
activity, and for the first time argued, citing
Flatley v. Mauro
(2006)
At the conclusion of the hearing, the court granted counsel’s “request for a short additional brief ” on whether the HR letter was absolutely privileged and allowed the parties to submit additional evidence.
Both parties submitted supplemental briefing and evidence. Slap’s supplemental briefing argued Osborne had “extorted” Slap and “ ‘[e]xtortion is not a constitutionally protected form of speech ’ under Anti -SLAPP statutes. Osborne ’s countered that the Flatley exception to assertedly protected speech only applies where the party admits, or the evidence “ ‘ conclusively establishes ’ ” the speech was illegal .
After receiving the supplemental briefing and evidence, the trial court took the matter under submission and issued a final order granting Osborne’s motion to strike. The court again found that “ Slap appear[ed] to concede that the HR letter constitutes protected speech.” However, the court also addressed and rejected Slap’s argument that “the HR letter was not privileged because it constituted extortion, which is not protected speech.” The Flatley exemption did not apply because Osborne has not conceded the underlying activity is illegal, nor does the evidence (the HR letter itself) reflect that the HR letter was an attempt at extorting Slap before filing suit.” The court further concluded that Osborne ’s evidence, including her own declaration stating she had been contemplating litigation, the December 2019 email from a law firm attaching a proposed engagement agreement with attorney Tyler Paetkau and the fact that Osborne in fact promptly sued HAG and Slap for harassment and other claims, established that Osborne sent the HR letter in anticipation of a lawsuit. Based on that, the court held the HR letter was “protected activity” and met the requirements for the absolute litigation privilege. The court also held, in the alternative, that the qualified privilege for communications with interested parties applied and Slap ’s *10 proffered evidence was insufficient to “ establish[] malice for purposes of overcoming [the] qualified litigation privilege. ” “ [B]ecause Slap ha[d] not overcome the litigation privilege defense,” the court held he had “fail[ed] to establish a probability of prevailing on the merits of his cross-claims. The court did not reach the arguments about the sufficiency of Slap’s cross -claims.
Slap timely appealed.
DISCUSSION
I.
Legal Standards
The purpose of the anti-SLAPP statute is to “ ‘ prevent and deter
“ lawsuits [referred to as SLAPP’s] brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.” ’ ” (
Flatley
,
supra
,
SLAPP. First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected
activity, that is, by demonstrating that the facts underlying the plaintiff's
complaint fit one of the categories spelled out in section 425.16,
subdivision (e).
[4]
If the court finds that such a showing has been made, it
4
Osborne contended her letter to HR, on which Slap’s claims were
based, fell within section 425.16, subdivision (e)(1) [“ statement or writing
*11
must then determine the second step, whether the plaintiff has demonstrated
a probability of prevailing on the claim. ’ ” (
Central Valley Hospitalists v.
Dignity Health
(2018)
“ As the Supreme Court earlier instructed, at this first step of the anti-
SLAPP analysis, ‘ the moving defendant bears the burden of identifying all
allegations
of protected activity, and the claims for relief supported by them. ’ (
Baral v. Schnitt
(2016)
Once the defendant has met its burden of identifying allegations of
protected activity and the claims for relief supported by them, the burden
shifts to the plaintiff to demonstrate its claim s have “have at least ‘minimal
merit.’ ” (
Park v. Board of Trustees of California State University
(2017)
which the liability or defense is based ” ( § 425.16, subd. (b)(2)), and “ ‘ “ accept as true all evidence favorable to the plaintiff and assess the defendant ’ s evidence only to determine if it defeats the plaintiff ’ s submission as a matter of law. ” ’ ( Comstock, at p. 947.)
We review a ruling on an anti-SLAPP motion de novo , “ ‘ engaging in
the same two-step process to determine, as a matter of law, whether the
defendant met its initial burden of showing the action is a SLAPP, and if so,
whether the plaintiff met its evidentiary burden on the second step. ’ ” (
People
ex rel. Fire Ins. Exchange v. Anapol
(2012)
Besides the anti-SLAPP statute, this case involves the litigation
privilege embodied in Civil Code section 47, subdivision (b). The anti-SLAPP
statute is a procedural device to screen out meritless claims based on certain
speech and petitioning activity. However, the litigation privilege is a
substantive law that provides an absolute defense to tort liability for certain
kinds of speech. Although the litigation privilege sometimes bears on the
analysis of the first (protected activity)
[5]
or second (minimal merit)
[6]
steps of
the anti-SLAPP analysis, the anti-SLAPP statute and the litigation privilege
*13
are not coextensive. (See
Crossroads, supra,
13 Cal.App.5th at pp. 786-787,
788.) Civil Code section 47 codifies common law privileges that operate as
defenses against liability. (
Jarrow Formulas, Inc. v. LaMarche
(2003)
The litigation privilege ‘ is not limited to statements made during a
trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards. ’ ” (
Action Apartment Assn., Inc. v. City of Santa Monica
(2007)
Civil Code section 47, subdivision (c) codifies the privilege for certain
communications made “to a person interested therein . ” The interested party
privilege been applied to statements made in workplace complaints and
investigations. (See, e.g.,
McGrory v. Applied Signal Technology, Inc.
(2013)
II.
The Statements on Which Slap Bases His Cross-Claims Are Protected
Activity Under Section 425.16, Subdivision (e)(1) and (2), and the
Flatley Exception Does Not Apply.
We begin with the threshold inquiry into whether the acts underlying
Slap’s cross-claims arise from the furtherance of protected activity as defined
by the anti-SLAPP law. Slap’s cross -complaint contains a list of what it
alleges are “false” and “defamatory” statements Osborne made in a
December 2019 letter to HAG’s HR department. Each of the five tort claims
that follow — libel, slander per se, intentional interference with contractual
relationships, intentional infliction of emotional distress and negligence —
incorporates these alleged statements and relies on them as the primary
basis of the claim. Slap alleges Osborne made the statements to HR with
certain intent and knowledge and that her statements were unprivileged and
malicious, but the only acts alleged in support of the cross-claims consist of
Osborne’s statements in the HR letter. Neither privilege nor malice directly
bears on step one of the anti-SLAPP analysis, which asks simply whether the
plaintiff’s cause of action fits one of the categories set forth in subdivision (e)
of section 425.16. (
Navallier v. Sletten
(2002)
Slap ’s sole argument that the challenged statements are not protected activity under the anti-SLAPP statute is that they were made in furtherance of an attempted extortion and thus criminal as a matter of law and unprotected under the rule of Flatley .
In
Flatley
, our Supreme Court held that section 425.16 cannot be
invoked by a defendant whose assertedly protected activity is illegal as a
matter of law and, for that reason, not protected by constitutional guarantees
of free speech and petition. ” (
Flatley
,
supra
,
Only after concluding, based on its review of the pleadings, the letter, and declarations submitted by the parties, that Mauro’s letter and follow up phone calls reiterating the threats and demanding money constituted “criminal extortion as a matter of law,” did the court hold that section 425.16 did not apply. (See Flatley , supra , 39 Cal.4th at pp. 332-333.) The opinion makes plain that the court’s exception to the first step, protected activity requirement in the anti-SLAPP law is narrow. The court held only that “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s actio n arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes , that the assertedly protected speech or petition activity was illegal as a matter of law , the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff ’ s action. ” ( Id . at p. 320, italics added.)
The Supreme Court emphasized in
Flatley
and its progeny that a
defendant need “ only make a prima facie showing that the underlying
activity falls within the ambit of the [anti- SLAPP] statute.” (
Flatley
,
supra
,
There was no such concession with respect to Osborne’s 2019 letter to HAG ’s HR department. Slap points to his own “ uncontroverted [deposition] testimony that he was blackmailed [7] by Ms. Osborne on December 10, 2019, when she threatened that if he did not make her an exempt, salaried employee that she would report to higher ups at HAG that Ms. Osborne had been doing Mr. Slap’s personal errands on company time.” He argues his testimony was “corroborated” by Cassity’s testimony “that he reported this blackmail attempt contemporaneously to her.” Finally, he contends that Osborne did not “dispute that she blackmailed [him].” Thus, by his reckoning, “ ‘ the evidence conclusively establishes that the assertedly protected speech or petition activity was illegal as a matter of law. ’ ”
Slap’s argument is fundamentally flawed. The premise of his argument is that the conversation he describes in which Osborne threatened to report him to HAG “higher ups” if he “did not make her an exempt, salaried *18 employee,” ipso facto amounts to the crime of extortion or attempted extortion as a matter of law. His opening brief assumes that is the case without analysis.
Not surprisingly, Osborne disagrees, contending, “Slap’s argument that his evidence conclusively established the HR Letter was extortionary is wrong” and the HR letter was a “plainly a legitimate exercise of Osborne’s right to complain about illegal conduct: e.g., harassment, retaliation, and her employer’s failure to pay her properly.” Osborne cites CALCRIM No. 1830, which sets forth the elements of the criminal offense of extortion.
Slap, by contrast, fails to set forth or discuss all the elements of the
offense, fails to cite the criminal extortion statutes and explain how they
apply to this case, and fails to discuss any of the post-
Flatley
cases addressing
the exception it established. (See, e.g.,
Flickinger
,
supra
, 85 Cal.App.5th at
p. 836 [
Flatley
exception did not apply to defendant ’ s demand letter which
bears no resemblance to the ‘ extreme ’ conduct in
Flatley
which warranted a
‘ narrow ’ exception to anti-SLAPP protections];
Geragos v. Abelyan
(2023)
Without any such analysis or discussion, Slap ’s briefs leave nothing but
unanswered questions concerning the crime he asserts Osborne committed.
[8]
*20
It was Slap’s burden, not the court’s, to demonstrate error by
presenting authority and argument on this point. (See
Hewlett-Packard Co. v. Oracle Corp.
(2021)
Even if Slap had not waived his argument that the Flatley exception applies, we would reject it. Slap ’s conclusory assertion that Osborne’s statements to him amounted to “blackmail” and “extortion” are nothing but characterizations unsupported by evidence or legal authority. As such, he has fallen far short of making a conclusive showing that Osborne’s statements amounted to extortion. (Cf. Flickinger , supra , 85 Cal.App.5th at p. 837 [“ Although plaintiff says he understood it as a threat to go accuse him of a crime, his subjective and self-serving interpretation cannot establish extortion as a matter of law ”] .)
Nor, contrary to Slap’s contention, do Osborne’s failure s to deny she
made the statement he characterizes as a “threat” or to deny his accusation
that the statements in the HR letter are “false” amount to a concession that
she committed extortion or any other crime. In fact, after Slap accused
Osborne of blackmail in his opposition briefing to the motion, she did contest
the charge that she acted illegally and that her assertions about doing
personal work for him were false, and she has maintained these positions on
appeal. (See
Zucchet v. Galardi
,
supra
, 229 Cal.App.4th at pp. 1479-1480 [no
concession where defendant denied illegality in reply briefing and on appeal];
see also
Oasis West Realty, LLC v. Goldman
,
supra
,
There is no “uncontested” evidence that supports Slap’s claim of extortion, and Slap has failed to show this is “one of those rare cases in which there is uncontroverted and uncontested evidence that establishes the crime [of extortion] as a matter of law.” ( Cross v. Cooper, supra, 197 Cal.App.4th at p. 386.) B ecause Slap’s cross -claims are based on protected speech in furtherance of her right to petition and the illegality of that speech is neither uncontested nor conclusively established, Osborne has satisfied her burden on the first prong of the anti-SLAPP analysis.
III.
As a Matter of Law Slap’s Cross-Claims Are Barred by the Litigation
Privilege and Thus He Cannot Meet the Second Step Requirement That His Claims Have a Probability of Success.
As we have noted, once the defendant has established that her claims
fall within one or more of the “protected activities” categories under
*22
section 475.16, subdivision (e), the burden shifts to the defendant to show a
likelihood of prevailing on the merits of his claims. “To establish a
probability of prevailing, the plaintiff ‘must demonstrate that the complaint
is both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’ ” (
Soukup v. Law Offices of Herbert Hafif
(2006)
Osborne asserted the litigation privilege was an absolute bar to Slap’s
complaint, and the trial court agreed. “ ‘A plaintiff cannot establish a
probability of prevailing if the litigation privilege precludes a defendant’s
liability on the claims.’ ” (
Optional Capital, supra,
Preliminarily, Slap argues the trial court erred in finding the letter
absolutely privileged because, he contends, in the trial court Osborne argued
*23
only that it was conditionally privileged. Slap fails to develop the argument
or cite any authority and thus has waived it. (
Hewlett-Packard Co. v. Oracle
Corp
.,
supra,
Before turning to the parties’ arguments on the merits of the litigation
privilege, we set forth general principles governing the privilege. Although
Civil Code section 47, subdivision (b), which codifies the common law
litigation privilege, refers to a “publication or broadcast” made “[i]n any . . .
judicial proceeding, our courts have held that communications with “ ‘some
*24
relation’ to an
anticipated
lawsuit” are protected by the litigation privilege.
(
Rubin v. Green
(1993)
“T o be protected by the litigation privilege, a communication must be
‘ in furtherance of the objects of the litigation. ’ [Citation.] This is ‘ part of the
requirement that the communication be connected with, or have some logical
relation to, the action, i.e., that it not be extraneous to the action. ’ ” (
Action
Apartment, supra,
Before addressing the application of the litigation privilege to this case, we address two preliminary matters. First, he discounts Osborne’s declaration that she was contemplating litigation in the days before she sent the HR letter as “self - serving” and , in essence, irrelevant because, he contends, the “good faith and under serious consideration” test is “an objective” one. The argument has no merit.
“In ordinary usage, the phrase ‘good faith’ is commonly understood as
referring to a subjective state of mind .” (
Ceja v. Rudolph & Sletten, Inc.
(2013)
This is just as true in the case of the good faith standard for the
litigation privilege as it is in other contexts.
Action Apartment
, which Slap
cites, reflects that the standard for whether litigation is “contemplated in
good faith and under serious consideration” is a subjective, not an objective,
reasonable person test. The court held an ordinance that imposed penalties
on landlords who serve eviction notices based on facts they have no
reasonable cause to be true or on untenable legal theories was preempted by
the litigation privilege to the extent it applied to situations where litigation is
contemplated in good faith, which the court observed requires “a factual
inquiry.” (
Action Apartment, supra,
A declaration proffered by a defendant attesting that she was contemplating litigation at the time of the writing is particularly probative of *26 her actual state of mind regarding contemplation of litigation. Of course, a court is not bound by such a declaration and must consider other relevant evidence, including circumstantial evidence, bearing on the defendant’s state of mind, and such evidence might corroborate or might undermine the defendant’s sworn statement. But to bar consideration of the testimony of the only person with direct knowledge of the subject would require courts to ignore what in many instances will be the only direct evidence of the defendant’s good faith . [9]
Second, Osborne argues the HR letter is protected “because it was
necessary to address a commonly used affirmative defense by employers in
sexual harassment cases, citing
Comstock, supra,
Osborne contends that here, as in Comstock , the HR letter was “necessary to address a commonly used affirmative defense by employers in sexual harassment cases.” With her anti -SLAPP motion in the trial court, she proffered excerpts of HAG’s and Slap’s answers to the complaint. Both included as a n affirmative defense, the allegation that Osborne’s claims are barred because she “unreasonably failed to take advantage of any preventative or corrective opportunities provided by Defendants to avoid any harm.”
In
Comstock
, as we have indicated, we applied provisions of the anti-
SLAPP statute. We went on to discuss, under step two of the anti-SLAPP
analysis, whether Comstock had demonstrated a likelihood of prevailing on
the merits of his claims and concluded he had not. (See
Comstock, supra,
212 Cal.App.4th at pp. 947-955.) However, we so held in part because of
Comstock’s failure to submit any admissible evidence supporting one of his
claims. (
Id
. at p. 952.) In addressing his other claims, we held they were
privileged, but under the Civil Code section 47, subdivision (b)(2) privilege for
statements in official proceedings and under the section 47, subdivision (c)
privilege for communications with interested parties. (See
Comstock,
at
pp. 952-953.) In
Comstock
, we did not have occasion to discuss the litigation
privilege. The
Comstock
holding that the alleged communication to the HR
*28
department was privileged because it was necessary to respond to an
anticipated affirmative defense supports Osborne’s assertion of the litigation
privilege. However,
Comstock
does not definitively hold that fact alone would
suffice to establish the litigation privilege (as opposed to protected activity
within the meaning of the anti-SLAPP statute), and the parties have neither
discussed nor provided authority on the subject.
[10]
What we can say with
confidence is that the fact that the HR letter was necessary to respond to the
potential affirmative defense that defendants eventually raised in the case
Osborne filed satisfies the litigation privilege requirement that the
communication be in furtherance of the litigation, that is, that it “function as
a necessary or useful step in the litigation process and must serve its
purposes.” (
Rothman v. Jackson
(1996)
We therefore turn to the application of the standards governing the litigation privilege to the evidence in this case and, as we shall explain, conclude the undisputed evidence establishes that the HR letter was sent in anticipation of litigation and is protected by the litigation privilege as a *29 matter of law. [11] The evidence establishes the following facts, none of which Slap disputes.
While working at HAG as Slap’s personal secretary, Osborne performed
both personal and business-related tasks for Slap.
[12]
Osborne complained to
HAG that she was not being compensated for all the time she spent
performing personal tasks for Slap and that HAG had declined her request to
become a salaried rather than hourly employee. (Slap denies the truth of this
and other accusations asserted in Osborne’s HR letter but does not deny she
made the claims.) For purposes of the litigation privilege, whether Osborne’s
claims in the HR letter are true or false or were made with malice is
irrelevant. (
Jacob B. v. County of Shasta
(2007)
On December 20, 2019, about four years after she was hired as Slap’s executive assistant, Osborne sent the HR letter to Cassity with a cover email, the subject line of which was “ Formal Complaint, ” and the body of which stated, “Hi Nancy. Per your direction last week I have put my complaint in writing. Please see attached.” The letter referred to a discussion between Osborne and Cassity on December 10, 2019, about “some of my concerns *30 about my working relationship with Mr. Slap,” in which Cassity told her “I would need to put these in writing before any action could be taken or my concerns could be addressed.” The letter stated, “Accordingly, I am sending you this letter in a final effort to have my concerns acknowledged, addressed and resolved .”
The letter stated that “[a]lthough we have discussed some of these concerns on numerous occasions, and hoped that Mr. Slap’s behavior would improve, I now find the work conditions unbearable and intolerable. ” It asserted that she “ remain[ed] very concerned about retaliation by Mr. Slap and the Company .” It requested “a prompt, fair and thorough investigation of my complaint, and protection from retaliation.”
The letter described Slap’s conduct as “inappropriate, harassing and retaliatory, “hostile,” “humiliating” and “abus [ive] .” In more than four pages of single-spaced text, it went on to provide many examples of allegedly inappropriate, harassing, retaliatory and abusive conduct. For example, it accused Slap of asking Osborne to work while she was on maternity leave and offering to pay her on the side after he had been advised by HAG’s controller not to have her work during her leave. When she was eight months pregnant, he asked her to continue to purchase and carry multi- gallon water jugs against her doctor’s advice. It described increasing demands Slap made “that were personal in nature” that made her feel degraded, humiliated publicly, and often abused ,” such as being asked to cut his food, to come to his office to pour him water from a pitcher, to remove his “drenched gym clothes” from his bag and take them home to wash, to burn a wart off his foot and to drive him to the emergency room and remain with him while he was in a hospital gown answering personal questions while “rolling around moaning in pain.”
The letter reported that Osborne had complained to Slap about another employee who “had been sexually harassing [her] since [her] return from maternity leave.” The letter claimed Slap “did nothing” in response to her complaints that the employee was following her and physically touching her, and that instead of reporting the employee Slap had promoted him. Later, after the employee sued the company, Slap told her if she were deposed, she should be sure to mention the sexual harassment but not to say she had told Slap about it.
The letter also accused Slap of asking Osborne to perform personal tasks for him but not allowing her to “log hours” for that work, said he had “become aggressive” and “hostil[e] towards her when she asked to be paid and accused him of repeatedly failing to pay her for hours she worked. It asserted that Slap had promised her a raise but told her it would be “between us” and would not be in writing, and he failed to honor the promise until directed by HR to do so. The letter stated Osborne had complained to Cassity “months ago ” about not being paid and again last week when this became an issue again.” She said that Slap had “specifically instructed [her] to not contact you or HR” and instructed her “to not ask for HR help.”
The letter closed by requesting that the company “immediately” stop Slap’s “harassment and abuse of [her], ” “ formalize her salary and monthly increase “so that I do not have to beg and argue for it every month” and pay her “for all of [her] work.” Slap denied many of Osborne’s assertions in the letter but admitted she sent it.
By the time Osborne sent the HR letter, she had already had “multiple communica tions” with Cassity about the subject matter of her “December 20 complaint” (the HR letter), including not getting paid for work she was doing for Slap. One conversation in December 2019 took place when Osborne *32 reached out to Cassity right after she and Slap had “an altercation” in which he had “thrown my pay increases at me in a folder . ” This caused her to feel “insulted” and “offended” and she was “very upset.” Osborne asked Cassity to meet with her and Slap together, which was “the only way” there “could be any resolution.” In that or another conversation, Cassity told Osborne she would not “keep partipating in this with the two of you” and w as “not doing anything about anything, unless Osborne or Slap “put [] it in writing. ” She said, “[i]f you want help, put it in writing.” Osborne “wanted Nancy Cassity to do the job” she had been hired to do “ instead of falling in line behind [Slap] and contributing to the corruption that was occurring from the ground up.”
Osborne submitted a declaration attesting she had “been contemplating litigation in the days leading up to December 20, 2019, because of the mistreatment I was experiencing working for Defendants.” Other evidence corroborates that assertion. For example, a copy of an email sent to Osborne on the day she sent the HR letter. The email was from an assistant for attorney Tyler Paetkau of the Procopio law firm, addressed to Osborne, with an engagement letter and a request for a retainer of $1,000. Osborne attested that she “formally retained” Paetkau on December 27, 2019. Further, Osborne submitted a declaration executed by Paetkau, an attorney licensed in California, stating he was “[Osborne’s] attorney of record ” “commen cing in mid-December 2019 through approximately early February 2020.”
Paetkau also attached emails he exchanged with HAG’s counsel, Jason Geller, in January 2020. In the first email, Paetkau inquired about the status of the company’s investigation of “Eva’s complaint,” the “results of the Company’s investigation and the Company’s remedial actions taken, if any” and said Osborne was “ready to return to work.” The bulk of the email (three *33 and one-half of four pages) consisted of a “Demand for Employment -Related Documents Under the California Labor Code” and a “Notice of Preservation of Evidence,” commonly known as a “litigation hold.” When Geller responded with a short email stating Osborne had “submitted a d etailed written complaint about Mr. Slap’s alleged conduct to which my client has already responded,” Paektau sent another email expressing surprise at Geller’s statement that HAG had “completed its investigation,” and asked , “What remedial action did your client take ?” and , “Did your client implement procedures and policies to ensure that Eva can return to work free from further harassment . . . ? ” and “What has the company done to stop [Slap’s] harassment and abuse of Eva?”
Besides the fact that she hired an attorney in December 2019, who then sent a litigation hold letter to defendants’ counsel in January 2020, on March 2, 2020, and March 10, 2020, Osborne filed charges of harassment and retaliation against HAG and Slap with the DFEH, and on March 16, 2020, she filed this lawsuit for civil damages against them based on allegations largely mirror those contained in her December 20, 2019 “complaint” to HAG . The fact that she filed the DFEH complaint and this lawsuit less than three months after sending the HR letter further supports her assertion that she was contemplating litigation when she sent the letter.
Slap contends this considerable and undisputed evidence falls short.
He relies on our decision in
Edwards v. Centex Real Estate Corp.
(1997)
Slap’s second argument is easily disposed of. There is evidence that Cassity told Osborne the company would not address her concerns if she did not put them in writing, which apparently prompted her to do so. But that in no way indicates that when she wrote the letter she did not have the intention of pursuing litigation if, as had been the case already for some time, HAG still did not remedy the situation.
Slap’s first argument, that the letter’s failure specifically to threaten or refer to litigation by name means it does not meet the first Centex criterion, merits discussion. The letter does not use the word “lawsuit” or expressly threaten litigation. But as we stated in Centex , the purpose of these considerations is to “detect at what point on the continuum between the onset of a dispute and the filing of a lawsuit [where] the threat of litigation has advanced from mere possibility or subjective anticipation to contemplated reality.” ( Centex , supra , 53 Cal.App.4th at pp. 34-35.) For this purpose, “[i]t is not necessary that a party make an actual ‘threat’ of litigation”; it suffices if there is “some actual verbalization of the danger that a given controversy may turn into a lawsuit. ” ( Id. at pp. 35, 34.)
As Osborne points out, the HR letter, which again Osborne refers to as a “formal complaint,” satisfies Centex . It alleges many examples of Slap’s actionable misconduct, which it characterizes as “harassment , ” “retaliation” and “abuse . She describes Slap asking her to do personal tasks that made her feel “degraded, humiliated publicly, and often abused” and becoming “hostile” and “aggressive” with her when she asked to be paid for her work. It accuses him of ignoring a complaint she made that another employee was *35 sexually harassing her and of dissuading her from reporting that and or raising other issues with HR. It claims Slap repeatedly failed to pay her for time she worked and prevented her from logging time she spent working at his request. It refers to “numerous” prior conversations she had with Cassity in which she complained and to the company’s failure to improve Slap’s behavior or her working conditions. It conveys a sense of desperation and imminence, referring to conditions at work having become “ intolerable ” and “ unbearable ” and states she is sending the letter “ in a final effort ” to have Osborne’s concerns acknowledged, addressed and resolved . (Italics added.) It demands that Slap’s “harassment and abuse of me . . . stop immediately.” The “formal complaint” to HR implies a threat of litigation.
This case is unlike
Centex
, which addressed whether the litigation
privilege applied to a builder ’s and insurer’s communications in response to
homeowners’ initial reports of damage to their foundations. (
Centex
,
supra
,
This case is a far cry from Centex . Here, by the time she sent the HR letter, Osborne was plainly upset and frustrated by HAG’s failure to address *36 her ongoing complaints of misconduct and nonpayment regarding Slap. She did not attempt to “negotiate” a resolution; rather, she submitted a “ formal complaint,” referenced the “numerous” prior communications she had with Cassity about these matters and the failure to effect any change and said the letter was her “final effort” to resolve those matters. She demanded “immediate” action . She didn’t say “or else I sue,” but it was strongly implied. Moreover, Osborne quickly retained counsel, who sent a litigation hold, and she filed litigation three months , not six or seven years , after sending the letter. By the time she sent the letter , “litigation [was] no longer a mere possibility, but ha[d] instead ripened into a proposed proceeding that [was] actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute.” ( Centex, supra, at 53 Cal.App.4th p. 39.)
Slap’s reliance on
Ruiz v. Harbor View Community Assn.
(2005)
The facts in Ruiz , involving two attorneys exchanging sharply-worded correspondence over a year before any litigation was filed, bear no resemblance to those here. Osborne, who was not an attorney, had sought legal counsel before she sent the letter to HR. The letter was the culmination of a series of prior oral complaints she had made about illegal harassment, retaliation and other serious workplace misconduct. It stated her work environment had become “intolerable” and that the letter was her “final effort” to resolve her complaints. Within three months of sending the letter, she filed her civil suit, and prior to that, a complaint with the DFEH. [13]
Finally, Slap argues there is no evidence that Osborne contemplated
that litigation was “imminent,” a term used in
Centex
to distinguish between
“a ‘bare possibility’ ” of litigation from litigation that meets the “Restatement
requirement that litigation be ‘seriously considered.’ ” (
Centex, supra,
None of these arguments undermines Osborne’s showing that when she sent the letter, she was contemplating litigation. She had no need to state why she hired counsel because counsel’s correspondence makes it plain . His first letter to HAG’s general counsel was in large part a litigation hold, reflecting, rather than detracting from, her showing that she anticipated filing litigation imminently. Nor does the reference to her readiness to return to work make the letter an attempt to resolve the matter informally and not to communicate that litigation was imminent, as Slap suggests. On the contrary, the statement was immediately followed with an inquiry as to the status of HAG’s investigation (as to which Paetkau expressed skepticism because Osborne had not heard from any investigator), a reiteration of Osborne’s request for “a prompt, fair and thorough investigation of [her] complaint,” a reference to “Slap’s inappropriate, harassing and retaliatory conduct” and the statement that Osborne “would like to know, as soon as possible, the results of the Company’s investigation and the Company’s remedial actions taken, if any.” Following that first paragraph, what follows is three and one-half pages demanding documents and preservation of evidence, in other words, a litigation hold. Far from an opening effort to negotiate, counsel’s communication was consistent with Osborne’s HR letter reflecting that efforts to get HAG to address the problems had been ongoing for a substantial period of time with no resolution, the situation had become “intolerable , ” and the letter had been her “final” effort to resolve them. That *39 a demand letter or other communication, after lengthy efforts to resolve a dispute have failed, mentions the possibility of informal resolution does not negate evidence that imminent litigation is genuinely anticipated.
Nor do we agree with Slap that Osborne ’s filing suit within three
months of having sent the letter is not evidence that she anticipated
“imminent” litigation at the time she sent the HR letter. Certainly, filing
litigation within three months is some evidence of that, albeit by no means
the only such evidence in this case. (Cf.
Neville v. Chudacoff
(2008)
Because the undisputed evidence demonstrates that the HR letter was protected by the litigation privilege as a matter of law, Slap cannot prevail on the merits of his tort claims against Osborne based on statements made in that letter. Because this prevents Slap from meeting the second step of the anti-SLAPP analysis, we need not address the parties’ additional arguments about the conditional privilege, malice and whether Slap’s allegations are sufficient to establish the elements of his claims.
DISPOSITION
The order is affirmed. Osborne is entitled to costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)
*40 STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
Osborne v. Slap (A167118)
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Eumi Lee
Counsel:
de la Peña & Holiday, Gregory R. de la Peña, Thomas J. O’Brien and Kevin N. LaBarbera, for Defendant and Appellant.
Kochan & Stephenson, Deborah Kochan and Mathew Stephenson, for Plaintiff and Respondent.
Notes
[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
[2] Osborne filed the suit on March 16, 2020, shortly after having filed a complaint and received a right to sue letter from the Department of Fair Employment and Housing (DFEH).
[3] The HR letter does not contain this statement, but Osborne allegedly said this to Cassity in a December 2019 meeting.
[5] “There is, of course, a relationship between the litigation privilege and the anti-SLAPP statute. Past decisions of this court and the Court of Appeal have looked to the litigation privilege as an aid in construing the scope of [section 425.16,] subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry — that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision[] (e)(1) and (2). ” ( Flatley , supra , 39 Cal.4th at pp. 322-323.)
[6]
‘ In the anti-SLAPP context, the litigation privilege presents “ a
substantive defense a plaintiff must overcome to demonstrate a probability of
prevailing. ” (
Flatley v. Mauro
[,
supra
,] 39 Cal.4th [at p.] 323.) ’ ” (
Crossroads
Investors, L.P. v. Federal National Mortgage Assn
. (2017)
[7] Slap equates the term “blackmail” with the “crime of extortion.”
[8]
For example, it is not clear whether, and if so how, Slap could claim a
completed act of extortion given his concession that Osborne “did not achieve
the result she desired. ” Further, he does not explain how his apparent theory
of attempted extortion can be squared with his testimony stating that
Osborne’s allegedly extortionate threat was made to him in a conversation
they had in person. Attempted extortion requires a threat conveyed in
writing. (See Pen. Code, § 523.)
Nor does Slap explain how the other elements of extortion apply. Fear,
for purposes of extortion, requires a threat of at least one of five specified
types of threat. (Pen. Code, § 519;
People v. Umana
(2006) 138 Cal.App.4th
625, 639; see
Malin, supra
,
[9]
Slap cites
Anapol, supra,
[10]
In the anti-SLAPP context, we note that some courts have held a
communication that is a “necessary prerequisite to litigation” is not a
protected activity under the anti-SLAPP statute if litigation is not actually
anticipated and is only a possibility. (E.g.,
Mission Beverage Co. v. Pabst
Brewing Co., LLC
(2017)
[11]
There is a split of authority as to who bears the burden of proving
the affirmative defense of privilege where it is raised as a defense to the
plaintiff’s ability to show a likelihood of prevailing on the merits at the
second step of the anti-SLAPP analysis. (
Bentley Reserve L.P. v. Papaliolios
(2013)
[12] Slap admits he asked Osborne to perform some personal tasks, and contends that such tasks were “included in her job duties,” “part of her job description” and “authorized” by HAG. He also says she “volunteered” or “offered” to do some of the tasks.
[13]
In the third case Slap relies on,
Cruey v. Gannett Co.
,
supra,