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Jim Price v. Operating Engineers Local Union No. 3 et al

April 27, 2011

JIM PRICE, PLAINTIFF AND RESPONDENT,
v.
OPERATING ENGINEERS LOCAL UNION NO. 3 ET AL., DEFENDANTS AND APPELLANTS.



Super. Ct. No. 34201000068641CUOEGDS

The opinion of the court was delivered by: Duarte , J.

Price v. Operating Engineers Local No. 3 CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Operating Engineers Local Union No. 3, Greg Dornback, Henry Miles, Justin Diston, Mike Croll, Dan Kern, Mark Matney, Jeremiah Figueroa, Robert Shane Walthers and Bob Miller (collectively "the Union")*fn1 appeal from an order denying their special motion to strike the defamation and false light causes of action in the complaint filed by plaintiff, Jim Price. The Union brought its motion under Code of Civil Procedure section 425.16,*fn2 also known as the anti-strategic lawsuits against public participation (anti-SLAPP) statute.

Price's defamation and false light claims are based on flyers containing disparaging statements regarding Price that the Union distributed at the apartment complex where Price lived. To prevail on its motion to strike, the Union must show that the flyers concern a matter of public interest within the meaning of section 425.16. The Union contends, among other things, that because the flyers were distributed during a labor dispute, it has shown that their distribution was a matter of public interest. We disagree.

As we will explain, the Union has not shown that its disparaging statements regarding Price involve an issue of public, as opposed to private, interest. Accordingly, we agree with the trial court that the Union failed to meet its threshold burden under the anti-SLAPP statute. Thus the burden never shifted to Price to show a probability of prevailing on the merits. We shall affirm.

FACTS*fn3 AND PROCEDURAL HISTORY

Road Machinery supplies, repairs and rebuilds machinery for the mining, construction, industrial and governmental markets. Road Machinery's West Sacramento facility employed parts and service technicians who were union members. In 2008, Road Machinery began negotiating new collective bargaining agreements for union members who worked at the Fresno, San Leandro and West Sacramento facilities. The parties agreed on a single collective bargaining agreement covering the three facilities, but in September 2009, the parties reached an impasse.

Price began working for Road Machinery at the West Sacramento facility as Vice-President and General Manager, California Division, on October 28, 2008. Price was not part of Road Machinery's collective bargaining committee; he had neither a role in nor the ability to affect Road Machinery's negotiations with the union.

On September 16, 2009, union members who worked at Road Machinery's West Sacramento facility, including several named defendants, went on strike. That same day, defendant Greg Dornback followed Price from Road Machinery's West Sacramento facility to Price's residence at the Cobble Oaks apartment complex in Rancho Cordova (Cobble Oaks). Others followed Price to Cobble Oaks on other occasions.*fn4

On November 11, 2009, the Union placed copies of a flyer containing the following statements*fn5 on the doors and cars of Price's neighbors: "NEIGHBORS, BEWARE OF THIS MAN: JIM PRICE"; "[p]rotect your family, safeguard your property"; "there is no telling what he might do"; and "[c]omplain to Cobble Oaks about the sort of person they've let in your community." The flyer listed Price's business cell phone number and his apartment number, and encouraged Price's neighbors to complain to him directly.

Price's wife saw the flyers taped to her apartment door and posted throughout Cobble Oaks. The maintenance person at Cobble Oaks reported to her that defendant Dan Kern left a card with him and said, "Tell [Mrs. Price], I will be back," causing Price to be fearful for his wife's safety. Price reported this incident to police, but received no response. Copies of this same flyer were again distributed in mid-December 2009, to residents and guests entering and exiting Cobble Oaks.

In late November 2009, a second flyer was distributed. As Price was exiting Cobble Oaks, eight to 10 individuals, including some of the named defendants, shouted "vulgar and crude comments" to him and a flyer was thrust at him. Price saw these same individuals stopping cars entering and leaving Cobble Oaks to distribute flyers. This second flyer contained the following statements: "COBBLE OAKS RESIDENT JIM PRICE" "tried to take away workers' pension benefits"; "threatened workers with arrest for publicizing their fight for workplace justice"; and "threatened to ...


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