The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING DEFENDANT GROSSMAN'S: (1) ANTI-SLAPP MOTION TO STRIKE; AND (2) MOTION TO DISMISS [Dkt Nos. 8, 10]
This action arises out of the termination of plaintiff John Espinoza's ("Espinoza") employment as a City of Imperial police officer, after approximately five years of service. His First Amended Complaint ("FAC") alleges causes of action against the City of Imperial ("City"), City police chief Miguel Colon ("Colon"), and Dr. Ira Grossman, a psychiatrist retained by the City and Colon to examine Espinoza associated with their fitness investigation and employment termination decision. Dr. Grossman's report and subsequent hearing testimony opined Espinoza was unfit to continue to serve as a police officer. This matter is before the court on defendant Grossman's: (1) Motion To Strike FAC pursuant to California's Anti-SLAPP statute, CAL. CODE CIV. P. § 425.16 (Dkt No. 8); and (2) Motion To Dismiss, pursuant to FED. R. CIV. P. ("Rule") 12(b)(6) for failure to state a claim against him and on grounds of absolute privilege pursuant to CAL. CIV. CODE §§ 47(b), (c).
Of the thirteen (13) causes of action alleged in the FAC, Espinoza names Dr. Grossman in three: Ninth Cause of Action for Invasion of Privacy under the California Constitution, Art. I § 1; Eleventh Cause of Action for Defamation and Libel; and Thirteenth Cause of action for Intentional Infliction of Emotional Distress. Espinoza filed Oppositions to both motions, and Dr. Grossman filed Replies. The court finds the issues presented appropriate for decision on the papers and without oral argument, pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, the motions are GRANTED.
The FAC alleges, in pertinent part, Espinoza was hired as a City of Imperial police officer in about 2002. He was experiencing marital difficulties, including separation and ultimate dissolution of the marriage. See FAC ¶ 11. He sought psychological counseling and therapy for himself and family members to help cope with his personal situation. Id. Defendants contend questions arose regarding Espinoza's continuing fitness to serve as a police officer and his mental competence. Anti-SLAPP Mot. Reply 1:22-23. In about July 2006, he requested paternity leave to care for a newborn child he had with his girlfriend. FAC ¶ 13. "Shortly thereafter Plaintiff was wrongfully required, on pain of termination, by CITY, to undergo an unwarranted psychological examination conducted by defendants COLON and GROSSMAN." Id. "Defendant [sic] CITY and COLON, furnished false, defamatory and inaccurate information to GROSSMAN for the purpose of obtaining GROSSMAN's conclusion that Plaintiff was unfit for duty." FAC ¶ 14. "Defendant GROSSMAN, among other things, made false statements regarding Plaintiff, in writing, to the other Defendants, that Plaintiff lacked integrity, and falsely concluded that Plaintiff was unfit for duty." FAC ¶ 17 (emphasis added). As reasonably extractable from the FAC, only the following additional allegations may pertain to Dr. Grossman:
18. Defendants violated Plaintiff's constitutional right to privacy, as he had legally cognizable interests in preserving the privacy of his family affairs, medical history, and psychological profile, which expectation was reasonable, and Defendants' actions seriously interfered with Plaintiff's informational privacy rights and rights to autonomy in medical treatment.
19. Defendants unduly intruded and interfered with Plaintiff"s legally protected privacy interests by, among other things, using extraneous information about Plaintiff's personal life and thoughts, communicated in confidence to a CITY-aligned psychiatrist in an employment-related examination, as basis [sic] for adverse personnel action.
20. Defendants perceived Plaintiff as having mental disabilities and/or medical conditions caused by performing his work. Alternatively, Defendants perceived Plaintiff to have non-industrial disabilities and/or medical conditions.
. . . 23. During his employment, ESPINOZA was subjected to adverse employment action, harassment, and hostile work environment, primarily by his supervisor, Defendant COLON, but with the ratification and conspiracy of the other Defendants. Plaintiff was denied assignments that he was qualified for. Defendants interfered with Plaintiff's personal life, invaded Plaintiff's privacy by disclosing confidential information regarding Plaintiff to third parties, . . . all apparently in order to manufacture false grounds to terminate Plaintiff. . . .
. . . 119. The psychological examination lacked job-relatedness and business necessity and was unreasonable. . . . 138. Defendant GROSSMAN. among other things, made false statements regarding Plaintiff, in writing, to the other Defendants, that Plaintiff lacked integrity, and falsely concluded that Plaintiff was unfit for duty. . . . 158. Plaintiff is informed and believes that the actions of Defendants, and each of them, in harassing Plaintiff, discriminating against Plaintiff, retaliating against Plaintiff, and causing Plaintiff's employment to be terminated in contravention of public policy, as alleged herein, was intentional, extreme, outrageous and were done with the intent to cause emotional distress or with reckless disregard of the probability of causing Plaintiff emotional distress.
"The anti-SLAPP statute was enacted in 1992 for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of non-meritorious claims 'arising from any act' of the defendant 'in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." Martinez v. Metabolife International, Inc., 113 Cal.App.4th 181, 186 (2003), quoting CAL. CODE CIV. P. § 425.16(b)(1) ("Section 425.16"). Courts must broadly construe the Anti-SLAPP statute. Annette F. v. Sharon S., 119 Cal.App.4th 1146, 1160 (2004). A cause of action arising from protected communication "shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." DaimlerChrysler Motors Co. v. Lew Williams, Inc., 144 Cal.App.4th 344, 350 (2006), quoting Section 425.16(b)(1).
The court engages in a two-step process in deciding an Anti-SLAPP motion:
First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.
Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002); see Rusheen v. Cohan, 37 Cal.4th 1048, 1055-56 (2006) (summarizing the governing principles).
Only a cause of action that satisfies both prongs of the Anti-SLAPP statute is subject to being stricken under that theory. Nygard, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1035 (2008). The defendant must initially establish the suit is within the class of suits subject to the statute. "In 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, 29 Cal.4th 82, 89 (2002) (citation omitted). "The anti-SLAPP statute's definitional focus is not on the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability -- and whether that activity constitutes protected speech or petitioning." Id. at 92. Section 425.16 specifies four categories of conduct that qualify for anti-SLAPP protection, two of which are pertinent here:*fn1
As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or in any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration ...