California Court of Appeal, First District, Fifth Division
Anthony K. HUI, Plaintiff and Appellant,
Beth STURBAUM, Defendant and Respondent.
Superior Court of the County of San Francisco, No.
CGC10504968, Harold E. Kahn, Presiding Judge. (San Francisco County Super. Ct.
Miller Barondess, LLP, Erik S. Syverson and Steven T. Gebelin, Los Angeles, for Plaintiff and Appellant.
Murchison & Cumming, Bryan M. Weiss and Valerie H. Jonas, San Francisco, for Defendant and Respondent.
Chiropractor Anthony K. Hui sued defendant Beth Sturbaum for defamation, claiming Sturbaum— then an insurance company claims investigator— made false statements to the California Department of Insurance (DOI) and to Winne Yu, an [166 Cal.Rptr.3d 572] assistant to personal injury lawyer Frank Kim. The trial court granted Sturbaum's anti-LAPP motion, concluding Dr. Hui's claims arose from protected activity (Code Civ. Proc., § 425.16, subd. (e)). It
also determined Dr. Hui could not show a probability of prevailing because Sturbaum's statements to the DOI were absolutely privileged under Civil Code section 47 (Section 47) and her statements to Yu were protected by the qualified common interest privilege in that statute.
Dr. Hui appeals. He does not challenge the court's findings with respect to Sturbaum's communications with the DOI. Instead, he contends the court erred by granting the anti-SLAPP motion because Sturbaum's statements to Yu did not arise from protected activity under section 425.16, subdivision (e) and because the common interest privilege articulated in Section 47 does not protect Sturbaum's statements to Yu.
We requested supplemental briefing on whether the protected conduct alleged in Dr. Hui's slander cause of action was merely incidental to any unprotected conduct alleged in that claim. We now affirm. In the unpublished portion of the opinion, we conclude Sturbaum's communications with Yu are protected under section 425.16, subdivision (e)(4) as speech made " in connection with ... an issue of public interest." In the published portion of the opinion, we conclude Dr. Hui has not established a probability of prevailing because the common interest privilege codified in Section 47, subdivision (c) protects Sturbaum's statements to Yu.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Hui graduated from chiropractic school in 1997. In 1998, he founded Pine Street Chiropractic (Pine Street). A " considerable volume" of Pine Street's business came from " referrals of personal injury clients from numerous local law firms[.]" National Legal Associates— a firm run by attorney Frank Kim— referred personal injury clients to Pine Street for treatment.
In 2003, Dr. Hui settled a civil case brought by a former patient claiming he " mishandled" her. Dr. Hui received a 30-day suspension of his chiropractic license and five years' probation. During that time, he could not treat female patients without a third party present. Dr. Hui's chiropractic license was " fully restored" in March 2008.
In 2008, Sturbaum was a claims representative for Federated Mutual Insurance Company (Federated). She handled liability claims submitted to Federated; she also read " ‘ ...