Appeal from an order of the Superior Court of Orange County, Charles Margines, Judge. Affirmed. (Super. Ct. No. 07CC02899).
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Sinh Cuong Cao appeals from the trial court's order following a hearing on his strike motion under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (all further unlabeled section references are to this code).*fn2 Concluding the evidence submitted by the parties for the hearing demonstrated a probability plaintiff Kimoanh Nguyen-Lam would prevail in establishing defendant slandered her with actual malice, the trial court authorized plaintiff to amend her complaint to plead actual malice. Plaintiff claimed that but for defendant's false accusation in a telephone conversation with Westminster School District (WSD) board members that she was a "Communist," and repeated republications of the false statement, the WSD school board (Board) would not have rescinded her appointment as the nation's first Vietnamese superintendent of a public school district.
Contending the amendment order amounted to a denial of his strike motion, defendant argues the trial court erred because (1) plaintiff failed to allege actual malice in her original complaint and the trial court erroneously permitted amendment; (2) the "Communist" epithet no longer constitutes slander per se; (3) given the absence of slander per se, plaintiff failed to demonstrate defendant's comment damaged her or injured her reputation; and (4) defendant's description of plaintiff as a "Communist" was not a provably false assertion of fact but rather "protected rhetorical hyperbole or loose language." (Lam v. Ngo (2001) 91 Cal.App.4th 832, 849 (Lam).)
Defendant also raises for the first time on appeal arguments not presented to the trial court: (1) his statements fell within the Noerr-Pennington doctrine applicable when petitioning one's elected representatives, and (2) his statements were shielded by the absolute privilege afforded petitioning activity under Civil Code section 47, subdivision (b)(1), for communications concerning legislative proceedings. Finally, while defendant's motion to strike did not challenge plaintiff's causes of action for intentional interference with contractual relations, or intentional or negligent interference with prospective economic advantage, defendant asserts the trial court erroneously denied his strike motion as to those claims because he later attacked them in a supplemental reply.
In the published portion of this opinion, we conclude the trial court properly authorized plaintiff to amend her complaint to plead actual malice as reflected in the parties' evidentiary submissions for the strike motion. Where the evidence submitted for the motion enables the plaintiff to demonstrate the requisite probability of prevailing on the merits of her defamation claim, the policy concerns against amendment in the anti-SLAPP context do not apply because the plaintiff's suit - shown to be likely meritorious - is not a strategic lawsuit against public participation. In the unpublished portion of the opinion, we explain defendant's other contentions are without merit or forfeited, and we therefore affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
After applying for the position of Westminster's superintendent of public schools, plaintiff advanced through three rounds of interviews. The Board members conducted the first round on May 16, 2006, the members of the teacher's union interviewed candidates the next week, and the Board members conducted a final round a week later. Plaintiff competed with 15 other applicants.
WSD held focus group interviews to develop a profile of the "ideal superintendent by interviewing the Board, the district staff, the teacher['s] union, the city council members in the district, the police departments, and the parents and community members."
Board President Blossie Marquez opined that "[b]ased on my review of Dr. Nguyen-Lam's experience, credentials, and cultural background, she was qualified for the WSD [s]uperintendent position."
On May 23, 2006, the Board voted 4-1 in favor of plaintiff as its next superintendent. Board member Jo-Ann Purcell dissented. Marquez called plaintiff to congratulate her that evening and gave her the official news. The interim superintendent, Dr. Mel Lopez, also called to congratulate her.
WSD issued a press release announcing plaintiff's superintendent appointment. Local television stations and major newspapers picked up the story because plaintiff would become the first Vietnamese person hired in America as a superintendent of a public school system. She would begin her three-year term on July 1, 2006, a little more than a month later. The next day, plaintiff resigned her administrative position at California State University, Long Beach.
On May 27, 2006, claiming she had been "investigating" plaintiff, Board member Judy Ahrens called Marquez at her home. The call was placed from defendant's business. Announcing, "I know someone who knows all about Dr. Nguyen-Lam," Ahrens placed defendant on the line. According to Marquez, defendant "spoke to me and maliciously accused Dr. Nguyen-Lam of being a Communist, inexperienced, and unqualified for the position." Ahrens then advised Marquez, "'You have to listen to this guy.'"
In his initial declaration submitted for the anti-SLAPP hearing, defendant admitted that at the time he made these statements, he never had met plaintiff, and only knew about her through media reports as a Garden Grove school board member and "community activist," as well as articles she might have published in the newspaper.
Defendant admitted he talked to Ahrens and Marquez about the decision to hire plaintiff; however, defendant insisted he merely gave his "opinion" of plaintiff.
In his second declaration, filed with his reply in the anti-SLAPP proceeding, defendant denied stating plaintiff was a Communist, inexperienced, or unqualified. On the contrary, he claimed, "[my] only complaint about Dr. Nguyen-Lam is that, according to my understanding, her political views are far less conservative than my own." Defendant also insisted he was merely sharing his opinion and never encouraged anyone to change their vote.
Plaintiff explained in her declaration that calling someone a "Communist" in Westminster's "Little Saigon" Vietnamese community was "extremely harmful to [her] reputation." While the statements were not made to Vietnamese individuals, they were made to Board members necessarily attuned by demographics to the concerns of Vietnamese-American voters.
Less than a week after plaintiff's appointment, the Board met and voted 3-2 to terminate her as superintendent. Board members Ahrens and Jim Reed changed their votes while Purcell again dissented. Marquez and Sergio Contreras continued to support plaintiff.
Plaintiff subsequently filed a lawsuit against the school district and others, including defendant. Plaintiff named defendant in the following causes of action: defamation (Seventh Cause of Action), intentional interference with contractual relations (Ninth Cause of Action), intentional interference with prospective economic advantage (Tenth Cause of Action), and negligent interference with prospective economic advantage (Eleventh Cause of Action).
Defendant filed an answer to the complaint, listing numerous affirmative defenses; however, he did not assert any privileges. A few days later, defendant filed his anti-SLAPP motion, contending any statements he made were pursuant to his right to free speech and to petition the government. He asserted plaintiff was a public official and her appointment as superintendent was a matter of public interest. Defendant explained he formed an "opinion" about plaintiff, which he shared with others because of his interest in Vietnamese community affairs and local politics. He argued plaintiff's suit punished him for expressing his political opinion.
Other than listing the causes of action in his notice of motion, defendant did not further address why the trial court should strike the ninth, tenth, or eleventh causes of action. Plaintiff's opposition argued the anti-SLAPP statute did not apply because defendant did not make his comments in a public forum on a pending matter. Plaintiff explained she was past the hiring phase and the matter was no longer under review. Moreover, defendant made his statements privately either by telephone or at his office, in a manner she had no opportunity to dispute before the Board acted on them. Plaintiff denied she was ever a Communist.
In his reply, defendant claimed any statements he may have made simply illustrated his political differences with plaintiff and amounted to an expression of his opinion, not an assertion of fact. In his second declaration, which he attached to his reply, defendant denied stating plaintiff was a "Communist," but opined her political beliefs were more liberal than his.
Seven days later, defendant filed a short "Supplemental Reply," in which he attempted to address the ninth, tenth, and eleventh causes of action. On August 1, 2007, the trial court heard the motion, noting defendant failed to address the ninth, tenth, and eleventh causes of action in his moving papers, and found defendant's attempt to do so in his reply improper.
Addressing the existence of "actual malice," the trial court stated: "But isn't the proof in your client's own declaration where he says he doesn't even know this lady? And nowhere does he say, 'I learned she is a Communist from this source or that source or from her own words.' If you put both of those together, what do you have? You have no place to go for his belief that she's a Communist."
The next day, the trial court asked for briefs from both parties as to whether plaintiff could amend her complaint to allege actual malice. Following further briefing, the court granted leave for plaintiff to amend her complaint and effectively denied defendant's anti-SLAPP motion. The trial court found the matter was one of public interest under the anti-SLAPP statute; however, plaintiff had established a probability of prevailing on her defamation claim. The trial court denied defendant's anti-SLAPP motion as to the ninth, tenth, and eleventh causes of action because defendant failed to address them in his moving papers. The court found the complaint was deficient on its face in alleging actual malice, but determined plaintiff had provided proof of actual malice and authorized plaintiff to amend the complaint accordingly. The court concluded plaintiff had demonstrated a probability of prevailing on her claim that defendant falsely and maliciously branded her a "Communist," uttered as a statement of fact "without a belief in its truth."
A. Governing Anti-SLAPP ...