APPEAL from an order of dismissal of the Superior Court of Los Angeles County, Emilie Elias, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC395846).
The opinion of the court was delivered by: Bigelow, P. J.
CERTIFIED FOR PUBLICATION
The statute governing the "Megan's Law" website (MLW) includes a provision prohibiting the "use of any information that is disclosed [on the MLW] . . . for purposes relating to . . . [¶] [e]mployment," and a provision that "[a]ny use" of information disclosed on the MLW for such a purpose "shall make the user liable for . . . actual damages, . . . and attorney's fees, exemplary damages, or a civil penalty not exceeding [$25,000]." (See Pen. Code, § 290.46, subd. (l)(2)(E), (4)(A).)
The anti-SLAPP statute provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of . . . free speech under the United States Constitution or the California Constitution in connection with a public issue 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." (Code Civ. Proc., § 425.16, subd. (b)(1).)
The appeal before us today arises from a case in which the interests protected by the MLW statute meet face-to-face with the interests protected by the anti-SLAPP statute. The appeal presents us with two primary questions. First, does an employment-screening business have a constitutional free speech right -- as such rights are defined in the anti-SLAPP statute -- to republish information disclosed on the MLW to the business's clients, notwithstanding the statutory prohibitions on the use of such information? Second, in the event such a constitutional free speech right exists, did the trial court properly grant the business's anti-SLAPP motion to strike an MLW-based complaint for damages on the ground that plaintiff could not show as a matter of law a probability of prevailing?
We answer both questions, yes. The order dismissing plaintiff's MLW-based complaint under the anti-SLAPP statute is affirmed.
In November 2008, William Mendoza filed a first amended complaint (FAC) for damages against ADP Screening and Selection Services, Inc. (SASS),*fn1 alleging a cause of action for violations of Penal Code sections 290.4 and 290.46, a cause of action for violations of Civil Code section 1786.20, subdivision (c), of the Investigative Consumer Reporting Agencies Act (ICRAA; Civ. Code, § 1786 et seq.), and a cause of action for declaratory relief of his rights under Penal Code sections 290.4 and 290.46. The FAC alleged the following facts:
In August 2007, Mendoza filled out an application for employment. (He does not allege with whom, or for what type of job, or that he was qualified for the position.) In September 2007, SASS conducted a pre- employment background check on Mendoza. As part of its background check, SASS "accessed [the MLW] for the sole purpose of denying employment to individuals who were registered sex offenders." The FAC does not allege whether Mendoza is a registered sex offender. The FAC does not expressly allege that information regarding Mendoza was disclosed on the MLW, but that factual allegation is implicit. The FAC does not expressly allege that Mendoza's prospective employer decided not to hire him based on information disclosed on the MLW, but that factual allegation, too, is implicit. The FAC alleged that Mendoza "suffered irreparable harm and damages as a result of [SASS]'s unlawful . . . conduct," but does not expressly allege facts showing the nature of those damages or causation.*fn2
SASS filed a special motion to strike Mendoza's FAC pursuant to the anti-SLAPP statute. SASS's motion argued that Mendoza's claims arose from the company's actions in furtherance of its constitutional free speech rights. In other words, SASS argued that it had a constitutional free speech right to republish information on the MLW to its clients. As an evidentiary matter, SASS's motion essentially conceded that it accessed the MLW, compiled information disclosed on the MLW, and provided the information for a fee to Mendoza's prospective employer, an SASS client. SASS argued that Mendoza could not prevail on his first cause of action as a matter of law because SASS had not used any information disclosed on the MLW regarding Mendoza within the meaning of the term "use" found in Penal Code sections 290.4 and 290.46. In other words, SASS argued that compiling and republishing information disclosed on the MLW does not constitute "use" of the information, the inference being that only an employer "uses" such information in the employment context. SASS argued that Mendoza could not prevail on his second cause of action for violation of the ICRAA as a matter of law because SASS's access of the MLW had not violated any federal or state equal employment law or regulation. SASS argued that Mendoza's cause of action for declaratory relief fell with his first two causes of action.
Mendoza opposed SASS's anti-SLAPP motion on three fronts. First, he argued that the anti-SLAPP statute did not apply to SASS's "commercial speech." Second, he argued that his claims against SASS were sufficient to show that he probably would prevail on MLW-based case. Finally, he requested leave to conduct discovery. On an evidentiary front, Mendoza submitted a declaration in which he set forth the following, admissible, nonconclusory facts:
"2. I applied for employment with a prospective employer. I passed the preliminary review and was selected for further consideration by the prospective employer.
"3. My prospective employer hired SASS for a fee to prepare a . . . report on [me] for employment purposes. I know this because I was told by my prospective employer and I received a copy of the . . . report [prepared by] SASS . . . .
"4. . . . [T]he prospective employer gave me a copy of [SASS's report].
"5. SASS delivered the . . . report to my prospective employer.[*fn3 ]
"6. SASS's . . . accessing of and use of the information disclosed on the [MLW] has . . . cost me gainful employment and the ability to lawfully earn wages, [and] caused me to suffer emotionally, including but not limited to depression."
The Trial Court's Decision
Following a hearing, the trial court entered a minute order granting SASS's special motion to strike Mendoza's complaint under the anti-SLAPP statute. The trial court's statement of decision explained its reasons for granting SASS's motion and dismissing Mendoza's action. The court determined the FAC was subject to the anti-SLAPP statute because the conduct alleged by Mendoza arose in furtherance of SASS's First Amendment rights of commercial speech on a matter of public interest, i.e., the identities of registered sex offenders and the commercial speech exemption to the anti-SLAPP statute (see Code Civ. Proc., § 425.17, subd. (c)) was inapplicable. The court found Mendoza could not establish a probability that he will prevail on his first count since SASS was not his prospective employer and did not `use' the [MLW] in violation of Penal Code [sections] 290.4 and 290.46, but instead simply `disclosed' information it found on the website. It further found Mendoza could not establish a ...