Trial Court: The Superior Court of San Francisco City and County Trial Judge: Hon. Peter J. Busch. (San Francisco County Ct. No. 425361 Super. ).
The opinion of the court was delivered by: Flinn, J.*fn6
CERTIFIED FOR PUBLICATION
Plaintiff Leah Dible, a former employee of defendant Haight Ashbury Free Clinics, Inc. (herein Haight), brings this action alleging, amongst other things, defamation regarding the termination of her employment. She appeals from the granting of defendants' motion brought pursuant to the Anti-SLAPP (strategic lawsuits against public participation) statute, Code of Civil Procedure section 425.16.*fn1 The trial court found that the alleged conduct arose from defendants' exercise of the right of free speech, passing to plaintiff the burden of establishing a likelihood of prevailing upon the merits. It then concluded that plaintiff could not establish such a likelihood and granted the motion.
We conclude that the trial court was correct as to the claim of defamation made by plaintiff's complaint, to wit, the publication to a third party of statements regarding the termination of her employment. On appeal she urges that statements made to her were themselves defamatory. While we accept that, if republished, such statements might fall outside of the scope of section 425.16, that claim would, as described below, not pass demurrer. Since a demurrer was timely filed, and further amendment would not be able to cure the defects, we find the failure to address the demurrer to be harmless error. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is engaged in the profession of psychotherapy/social work and was employed by defendant Haight from 1998 through October 2002, when she was involuntarily terminated. She was assigned to a division entitled "jail psychiatric services" and while working there as a psychiatric counselor, a jail inmate as to whom she had some level of responsibility committed suicide. Several meetings occurred regarding the failure to avoid the event and a dispute appears to have arisen between plaintiff and her employer as to fault. Plaintiff took the position that "managerial and institutional problems" were the cause, and not her conduct. When she was terminated, on October 16, 2002, she alleges that she was told that her negligence had resulted in the death. She states that statements to this effect were made to the Employment Development Department of the State of California (EDD) in relation to her unemployment insurance claim.
An original complaint, filed on October 10, 2003, was amended on March 2, 2004. That first amended complaint was the operational pleading at the time of the motion which is the subject of this appeal. It alleges causes of action for wrongful termination, declaratory relief, defamation, interference with business opportunity, and unfair business practices. The gravaman of the complaint is that she was wrongfully terminated for the "false reason" that she was responsible for the suicide and that the defendants "defamed her" by advising EDD, in response to her unemployment insurance claim, that she "held a license and/or was responsible for the inmate's death."
The defendants, in response to the first amended complaint, demurred to all causes of action, and the trial court sustained the demurrer in its entirety. On an earlier appeal to this court, the trial court's decision was upheld upon all causes of action other than defamation. As to defamation, the matter was remanded to allow amendment.*fn2
Plaintiff did not attempt to amend her first amended complaint and, after waiting for some time for her to do so, the defendants filed another demurrer (to the defamation cause of action) and a new anti-SLAPP motion. The trial court issued its tentative ruling, which granted the anti-SLAPP motion, counsel for plaintiff did not appear and contest the tentative ruling, and thus the motion was granted.
On September 10, 2007, the court issued its written order granting the motion and providing that defendants could request attorney fees by separate motion.*fn3 It also issued a separate order finding defendants' "[d]emurrer to the First Amended Complaint [to be] moot." Judgment was entered on November 26, 2007, and this appeal timely filed.
As both parties recognize, an appeal from an order granting a motion made pursuant to section 425.16 is subject to de novo review by this court. We independently review the issue of whether defendants have established that the conduct which is the subject of the complaint falls within the ambit of the statute, i.e., arises from acts by defendants in furtherance of their right of petition or free speech. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819 (Wilcox), disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 (Equilon).) We also independently review whether plaintiff can establish a probability of prevailing upon her claims, that is, has made a sufficient prima facie case such that she would prevail in light of the applicable law regarding the complaint. (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064).
1. Application of Statute
As our Supreme Court indicated in Equilon, supra, 29 Cal.4th at page 67, "Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the fendant has made a threshold showing that the challenged court decides whether the de cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these ...