Judge: Bruce G. Iwasaki, Case: 24STCV19837, Date: 2024-12-17 Tentative Ruling
Case Number: 24STCV19837 Hearing Date: December 17, 2024 Dept: 58
Plaintiff Los Angeles Police
Protective League (LAPPL), an employee organization, commenced this action
against Defendants Lillian Carranza (Carranza) and Marc Reina (Reina).
Plaintiff alleges Defendants Carranza and Reina both attempted, through
fraudulent and unlawful means, to complete surveys and receive emailed
communications from the LAPPL that both knew they were not entitled to receive.
The operative pleading, the First Amended Complaint (FAC), alleges causes of
action for (1.) violations of Penal Code section 502, (2.) unfair competition,
(3.) fraud, (4.) violations of Penal Code section 502, (5.) unfair competition,
(6.) fraud, and (7.) conspiracy.
On October 17, 2024, Defendant Carranza
filed a Special Motion to Strike the Complaint pursuant to the anti-SLAPP
statute, Code of Civil Procedure section 425.16. In Defendant Carranza’s
motion, she moves for an order striking portions of the FAC, including the first,
second, third, and seventh causes of action.
On October 23, 2024, Defendant Reina
also filed a Special Motion to Strike the Complaint pursuant to Code of Civil
Procedure section 425.16. In Defendant Reina’s motion, he moves for an order
striking portions of the FAC, including the fourth, fifth, sixth, and seventh
causes of action.
Plaintiff
opposes both anti-SLAPP motions.
The allegations and arguments
relevant to the two anti-SLAPP motions are substantively identical and are
analyzed together. Both special motions to strike pursuant to Code of Civil
Procedure section 425.16 are denied.
Plaintiff’s objections to the
declaration of Defendant Carranza are ruled as follows: Nos. 2-10, 13-14 are
sustained, and Nos. 1, 11-12, 15-18 are overruled.
Defendant Carranza’s objections to
Plaintiff’s evidence are ruled as follows: Nos. 14-15, 25-28 are sustained, and
Nos. 1-13, 16-24 are overruled.
Legal
Standard
“A cause of action against a person
arising from any act of that person in furtherance of the person’s right of petition
or 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 purpose of the statute
is to identify and dispose of lawsuits brought to chill the valid exercise of a
litigant’s constitutional right of petition or free speech. (Code Civ. Proc., §
425.16, subd. (a); Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1055-1056.)
Courts employ a two-step process to
evaluate special motions to strike strategic lawsuits against public
participation (SLAPP). (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show that the
challenged lawsuit arises from protected activity, such as an act in
furtherance of the right of petition or free speech. (Ibid.) “The moving defendant bears the burden of identifying all
allegations of protected activity, and the claims supported by them.” (Baral
v. Schmitt (2016) 1 Cal.5th 376, 396.) In the second step, it “
‘is then up to the plaintiff to rebut the presumption by showing a reasonable
probability of success on the merits.’ ” (Equilon,
supra, 29 Cal.4th at p.
61.) In determining whether the plaintiff has carried this burden, the
trial court considers “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (Code Civ.
Proc., § 425.16, subd. (b)(2); see Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
“Analysis of an anti-SLAPP motion is
not confined to evaluating whether an entire cause of action, as pleaded by the
plaintiff, arises from protected activity or has merit. Instead, courts should
analyze each claim for relief—each act or set of acts supplying a basis for
relief, of which there may be several in a single pleaded cause of action—to
determine whether the acts are protected and, if so, whether the claim they
give rise to has the requisite degree of merit to survive the motion.” (Bonni
v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)
Discussion
Step 1: Arising from Protected Activity
As outlined above, in the first step
of the analysis, Defendants must demonstrate that Plaintiff’s claims arise from
one of four categories of protected activity. An “ ‘act in furtherance of a
person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written
or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.” (Code Civ. Proc., § 425.16,
subd. (e).)
“As our Supreme Court has
recognized, ‘the “arising from” requirement is not always easily met.’
[Citation.] ‘[T]he mere fact that an action was filed after protected activity
took place does not mean the action arose from that activity for the purposes of
the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably
may have been “triggered” by protected activity does not entail that it is one
arising from such.’ [Citation.] ‘A claim arises from protected activity when
that activity underlies or forms the basis for the claim. [Citations.] Critically, “the defendant’s act underlying
the plaintiff’s cause of action must itself have been an act in furtherance of
the right of petition or free speech.” [Citations.]’ [Citation.] ‘[I]n ruling
on an anti-SLAPP motion, courts should consider the elements of the challenged
claim and what actions by the defendant supply those elements and consequently
form the basis for liability.’ [Citation.] Put another way, courts should first
identify ‘the allegedly wrongful and injury-producing conduct that provides the
foundation for the claims,’ and then determine whether that conduct itself
constitutes protected activity.” (Callanan v. Grizzly Designs, LLC (2022)
81 Cal.App.5th 517, 526 (citing Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1062-1063).)
In
her motion to strike, Carranza argues that all four causes of actions
alleged against her arise from protected activity. The
allegations against her, she maintains, arise from protected speech and conduct
by a public official on a matter of public interest pursuant to Section 425.16,
subdivision (e)(4).
Defendant Carranza
argues that this speech and conduct are protected because they involved the
exercise by Defendant Carranza, a public official, of her right of free speech
in connection with ensuring the quality of performance of LAPD Captains, an
issue of public importance.
Similarly,
Defendant Reina contends that the four causes of action against him -- Violation
of Penal Code section 502, Unfair Competition, Fraud, and Conspiracy -- arise from
his alleged falsification of his credentials to access LAPPL communications and
take LAPPL member surveys. (FAC ¶¶ 17-20.)
Defendant
Reina also
argues that these allegations arise
from protected speech and conduct by a public official on a matter of public
interest pursuant to Section 425.16, subdivision (e)(4). Defendant Reina,
however, identifies the issue of public interest as the employee bargaining
positions of the Los Angeles Police Department and its employees.
In
opposition, Plaintiff argues that the speech and conduct at issue in its
pleadings do not further any issue of public interest or concern.
As
noted above, in the first step of an
anti-SLAPP motion analysis, “the court decides whether the defendant has made a
threshold showing that the challenged 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,’....” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
At the heart of Plaintiff’s claims
is the allegation that Defendants gained access to LAPPL materials
that it was not permitted to access using false credentials.
In the first instance, the FAC alleges Defendant Carranza falsely stated
that her rank was Lieutenant and used the serial number of her
ex-husband -- not her actual serial number. (FAC ¶¶ 10-16.) Similarly, the FAC alleges
that Defendant Reina “falsified his credentials and/or identity in order to
obtain confidential emails, communications, and surveys the LAPPL sent to its
members through its online electronic portal used to communicate with
authorized member” by selecting to receive communications
from the LAPPL to “All Members,” despite knowing that he was not a member of
the LAPPL; he also falsely and intentionally stated that his rank was
Lieutenant. (FAC ¶¶ 17-19.)
These allegations do not involve speech or communicative conduct. That is,
the underlying allegations are more akin to a trespass where the communication
– providing false credentials – is used to gain illegal entry. Plaintiff’s allegations
do not target the content of speech itself. (See e.g., Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 92 [“The wrong complained of was plainly the
alleged illegal trespass.”].)
Even assuming
that falsifying credentials and responding to the survey constituted speech, there
is no public interest related to this speech.
In Rivero v. American Federation of State, County, and Municipal
Employees, AFL–CIO (2003) 105 Cal.App.4th 913, a union asserted that the
publications giving rise to a public university employee's complaint for libel
and slander involved an issue of public interest because “unlawful workplace
activity is a matter of public interest particularly where it occurs at a
publicly financed institution.” (Id. at p. 919.) In rejecting that
argument, the court reasoned “if the Union were correct, discussion of nearly
every workplace dispute would qualify as a matter of public interest. We
conclude, instead, that unlawful workplace activity below some threshold level
of significance is not an issue of public interest, even though it
implicates a public policy.” (Id. at p. 924 [italics added].)
In Rivero, the court surveyed
a number of cases and identified three common elements in statements that
concerned an issue of public interest. The statements concerned either: (1) a
person or entity “in the public eye”; (2) conduct that “could directly affect a
large number of people beyond the direct participants”; or (3) a “topic of
widespread, public interest.” (Rivero, supra, 105 Cal.App.4th at p.
924.)
The
alleged falsified credentials here involve none of these indicia of an issue of public interest. Presenting false credentials to
gain access to emails and surveys does not pertain to a topic of widespread,
public interest. Said another way, falsification of rank has no connection to
any issue of public interest. Defendants do not make an argument otherwise.
Thus, to the extent that the speech used to gain access to restricted material is
speech, the falsifying credentials “speech” does not fall within protected
activity.
Next,
the Court turns to the claims that arise from the allegations that Defendant
Carranza and Reina’s completed Plaintiff LAPPL surveys using the false credentials.
(FAC ¶¶ 12-20.) In both motions, Defendants – citing Hicks
v. Richard (2019) 39 Cal. App. 5th 1167 – argue that
their speech in responding to the surveys pertained to issues of public
interest. Hicks does not aid the Defendants.
In that case, a school principal filed a defamation action against the member
of a school advisory board whose letter allegedly caused the principal’s
termination. The letter was sent to outside authorities with the intent – and effect
– of prompting an investigation that resulted in Plaintiff’s removal. The Hicks
court found that the letter was protected activity.
But Hicks did not involve
accessing a forum for communication that was off limits to the speaker-defendant. Moreover, the communication was made to
people who could act upon the letter’s contents.
The
allegations in the letter at issue in Hicks differ from the alleged use
of false credentials alleged here. There is no question that, unlike the first category
of purported speech/conduct, this category of allegations involves statements
made in the LAPPL survey. Again, however, the underlying misconduct does not
arise from the content of the speech but rather the unauthorized access to the
survey. That is, the claims do not arise from the content of the statements
themselves but from the facts that Defendants used false credentials to make
these statements in a private forum that Plaintiff avers they should not have
had access to.
More
germane are the facts in Golden
Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81
Cal.App.5th 82. In Golden Gate, the operator of a horse-racing track
sued an animal rights organization and several individuals for trespass after
the individuals protested the track by climbing a fence and affixing themselves
to the track for several hours. (81 Cal. App. 5th at p. 87.) The animal rights
organization filed an anti-SLAPP motion to dismiss, arguing that any claim
against the organization was based on protected activity, such as gathering
signatures to close the track and organizing protests at the horse track. (Id.
at p. 88.) The court of appeal denied the anti-SLAPP motion, holding that “the wrong
forming the basis of the claims against Direct Action was its alleged
involvement in the trespass, not in speech or petitioning.” (Id. at p. 91.)
Here, as in Golden Gate, the
wrong complained of in using the false credentials was the unauthorized access.
Thus, to the extent that the claims rely on this category of allegations, the
causes of action do not arise from protected activity
Further,
there is no public interest in the statements made by Defendants in Plaintiff’s
survey.
“The fact that ‘a broad and amorphous public interest’ can be connected to
a specific dispute is not sufficient to meet the statutory requirements” of the
anti-SLAPP statute. (Dyer v. Childress (2007) 147 Cal.App.4th 1273,
1280.) By focusing on society's general interest in the subject matter of the
dispute instead of the specific speech or conduct upon which the complaint is
based, defendants resort to the oft-rejected, so-called “synecdoche theory of
public issue in the anti-SLAPP statute,” where “[t]he part [is considered]
synonymous with the greater whole.” (Commonwealth Energy Corp. v. Investor
Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34.) In evaluating the first
prong of the anti-SLAPP statute, we must focus on “the specific nature of
the speech rather than the generalities that might be abstracted from it.
[Citation.]” (Ibid.)
As our
Supreme Court has explained, while the survey itself may involve – in
the abstract – issues of public interest, the statement does not contribute to
the public debate. (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7
Cal.5th 133, 150 [““[I]t is not enough that the statement refer
to a subject of widespread public interest; the statement must in some manner
itself contribute to the public debate.”]; see Dubac v. Itkoff (2024)
101 Cal.App.5th 650, 549 [“The ultimate question is whether a
statement ‘furthered public discussion of the public issues it implicated.’”
(quoting Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1255)].)
FilmOn
explained that to prevail at the first step, defendant’s speech must further
the public conversation. “What it means to ‘contribute
to the public debate’ [citation] will perhaps differ
based on the state of public discourse at a given time, and the topic of
contention. But ultimately, our inquiry does not turn on a normative evaluation
of the substance of the speech. We are not concerned with the social utility of
the speech at issue, or the degree to which it propelled the conversation in
any particular direction; rather, we examine whether a defendant — through
public or private speech or conduct — participated
in, or furthered, the discourse that makes an issue one of public interest.”
(FilmOn, supra, 7 Cal.5th at
pp. 150–151; see also p. 154 [“a court must consider whether a statement
... contributes to or furthers the public conversation on an issue of public interest”].)
The facts in FilmOn are instructive. In FilmOn,
the Supreme Court found that the allegedly disparaging statements made in
confidential reports that the defendant disseminated to clients were not
protected by section 425.16(e)(4). (FilmOn, supra, 7 Cal.5th at pp.
140.) In this case, the defendant was a “for-profit business entity that offers
online tracking, verification and ‘brand safety’ services to Internet
advertisers,” and the plaintiff owned websites that the defendant identified in
its reports as containing “adult content” and “copyright infringement”
material. (Id. at p. 140–142.) With respect to FilmOn’s step one,
the defendant argued that the presence of adult content on the internet,
generally, and the presence of copyright infringing content on the plaintiff's
website, specifically, were matters of public concern. (Id. at p. 150.)
It submitted evidence that the plaintiff had been subject to media reports of
infringing content on its websites and copyright litigation over its streaming
model to support its latter argument. (Id. at pp. 150, 152.) The high
court acknowledged that the reports in the abstract could implicate issues of
public interest (id. at p. 152), but ultimately it determined that the
reports did not contribute to the public debate on such issues because the
reports were made “privately, to a coterie of paying clients,” who used them
“for their business purposes alone. The information never entered the public
sphere, and the parties never intended it to.” (Id. at p. 152-153.) Based
on the foregoing, the reports were “too remotely connected to the public
conversation about [the implicated public] issues” to come within the
protection of the anti-SLAPP statute. (Id. at p. 140.)
FilmOn
emphasized that courts must consider both the content and context of the speech
at issue – the speaker, audience, and the purpose of the speech. (FilmOn, supra, 7 Cal.5th
at pp. 144-146, 149 [“within the framework of section 425.16, subdivision
(e)(4), a court must consider the context as well as the content of a statement
in determining whether the statement furthers the exercise of constitutional
speech rights in connection with a matter of public interest”].) The Supreme
Court explained that this inquiry first asks what issue of public interest the speech
implicates – the content of the speech. (Id. at p. 149.) “Second, we ask what functional relationship
exists between the speech and the public conversation about some matter of
public interest. It is at the latter stage that the context proves useful.” (Id.
at pp. 149-150.)
Here, there
has been no showing that Defendants’ statements made in the survey contributed
to any public debate as required by FilmOn. First, the statements
were made in a private union survey; access to the survey was restricted.
Further, the evidence shows that Plaintiff, an employee
member organization for
all employees in the classifications of Police Officer, Police Detective,
Police Sergeant and Police Lieutenant employed by the Los Angeles Police
Department with regard to all matters concerning wages, hours and working
conditions, intend to use these survey results for its
own private purpose. LAPPL relies on these member surveys to develop accurate
information from its members, which it then utilizes in collective bargaining
and in general to aid in the representation of its members. (Ricco Decl., ¶ 3.)
In sum, the surveys were used to further the union’s private interests and were
not part of a broad public discourse on the “performance of police captains”
(as argued by Carranza) or “bargaining position made for the Los Angeles Police Department” (as
argued by Defendant Reina). (Carranza Mot.,
10:1-6; Reina Mot., 4:1-5.) Finally, there is no evidence that Defendants
intended that these statements be disseminated to a wider audience – the City
Council or the Police Commission for example – to advance a public discussion.
Accordingly, Defendants have not met
their burden of showing that Plaintiff’s claims arise from Defendants’ protected
activity. Thus, the first prong of Section 425.16 has not been satisfied.
Conclusion
Both special motions to
strike pursuant
to Code of Civil Procedure section 425.16 are denied.