Judge Colin Leis, Case 22AHCV00376 2022-09-02 Tentative Ruling

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

Plaintiff Yong Wu filed this employment action on June 17, 2022, against Defendants Mega Bank, Julian Fong (“Fong”), and Shirley Fu-Chang (“Fu-Chang”) (collectively, “Defendants”). The complaint asserts causes of action for (1) retaliation/harassment, (2) discrimination on the basis of age, (3) discrimination on the basis of disability, (4) hostile work environment, (5) negligent hiring, training, supervision and/or retention, (6) defamation – libel and slander, and (7) unfair business practices.

Plaintiff was employed at Mega Bank from November 2007 until he was terminated from his position as Controller and Vice President in April 2022. (Compl., ¶¶ 15-16.) Plaintiff alleges his superiors, and specifically Fu-Chang, the director of human resources, treated him poorly at work for taking sick leave and for criticizing the bank’s response to the COVID-19 pandemic. As a result, Plaintiff filed a workers’ compensation claim in June 2021 for “work stress.” (Compl., ¶ 42.) On June 21, 2021, Fong, Mega Bank’s CEO, sent an email to Rob Pun (“Pun”), Mega Bank’s CFO and Plaintiff’s direct supervisor about Plaintiff. In this email, Fong insinuated that Plaintiff was untrustworthy given his “past actions” and that Plaintiff had a “false claim with our workman’s comp provider.” (Compl., ¶ 43, Ex. B.) The allegation pertaining to the June 21, 2021 email is set forth in support of the first cause of action for retaliation and harassment in violation of FEHA (Compl., ¶ 59b), the second cause of action for discrimination based on age (Compl., ¶ 65e), the third cause of action for discrimination based on disability (Compl., ¶ 75e), the fourth cause of action for hostile work environment (Compl., ¶ 84b), and the sixth cause of action for defamation.

Defendants now move to strike all portions of the complaint relating to the June 21, 2021 email, including the entire sixth cause of action for defamation, pursuant to Code of Civil Procedure section 425.16.

The court rules on Defendants’ evidentiary objections to the Declaration of Yong Wu as follows:

Objection 14: sustained as to “retaliated against [him]” and overruled as to the remainder

Objection 15: sustained as to “unable to withstand the harassment” and overruled as to the remainder

The court rules on Defendants’ evidentiary objections to the Declaration of Rob Pun as follows:

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(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.

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis in original].) In making this determination, the court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.)

Defendants argue, and Plaintiff does not dispute, that that all of the references in the complaint to the June 21, 2021 email from Fong to Pun involves a 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. There is also no dispute that the sixth cause of action is based on the June 21, 2021 email, and that the first, second, third, and fourth causes of action arise, in part, from the June 21, 2021 email. (Opp’n, p. 15:1-2.)

Consequently, the court finds that Defendants have met their burden on prong one, and the burden now shifts to Plaintiff on prong two to make a showing of probability of prevailing on the claims.

“Under the second prong of the anti-SLAPP analysis, plaintiffs have the burden of establishing a probability of prevailing on their claims.” (MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 183.) “Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Ibid. [internal quotations omitted].) In making the prong two determination, “the court shall consider 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).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

First, the court notes that Plaintiff has not provided an analysis of the elements of any causes of action.[1] Plaintiff has also failed to provide an analysis of the evidence submitted as it pertains to any specific cause of action. A plaintiff cannot meet his burden on prong two without providing this analysis. (MMM Holdings, Inc. v. Reich, supra, 21 Cal.App.5th at pp. 185-186.)

Defendants argue that to the extent that any wrongful conduct is based on the June 21, 2021 email, that conduct is not actionable because of the litigation privilege. The first element of applying the litigation privilege is determining whether the communication was made in a judicial or quasi-judicial proceeding. No such showing has been made here. Moreover, while the email may have been about the workers’ compensation claim, it was not made to achieve the objects of the litigation, nor did it have any logical relation to the workers’ compensation proceeding. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146 [finding that “similarity, or even identity, of subject matter is not a ‘connection or logical relation’ between litigation and a communication” sufficient to trigger the litigation privilege because the communicative act must “function as a necessary or useful step in the litigation process and must serve its purposes”].) As set forth in Fong’s declaration, Fong sent the June 21, 2021 email to Pun in anticipation of a meeting between Pun and Mega Bank’s attorney and to remind Pun not to allow Plaintiff, if he were present during this meeting, to mention one of Mega Bank’s shareholders to the attorney. (Fong Decl., ¶¶ 4-5.) The email did not serve any purpose related to Fong’s workers’ compensation claim.

Alternatively, Defendants contend that the common interest privilege applies to bar Plaintiff’s claims. (Civ. Code, § 47, subd. (c).) “Communications made in a commercial setting relating to the conduct of an employee have been held to fall squarely within the qualified privilege for communications to interested persons.” (Cornell v. Berkeley Tennis Club, supra, 18 Cal.App.5th at p. 949.) For the privilege to apply, the communication was must have been made “without malice.” (Code Civ. Proc., § 47, subd. (c).) “The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” (Cornell v. Berkeley Tennis Club, supra, at p. 951.)

In Fong’s email is the following question to Pun: “Do you trust [Plaintiff] given his past actions and current false claim with our workman’s comp provider?” The allegedly defamatory portion of this question is Fong’s characterization of Plaintiff’s workers’ compensation claim as “false.” Plaintiff contends that Fong made this statement with actual malice because Mega Bank has not raised fraud or falsity in its defense of the workers’ compensation claim. (Wu Decl., ¶ 18.) Plaintiff also submits evidence that after Fong was hired in November 2020, Plaintiff did not report to Fong, did not work with Fong, and did not have any conversations with Fong outside of customary greetings. (Wu Decl., ¶ 5.) Plaintiff argues that this suggests that there is no basis for Fong to opine about Plaintiff’s truthfulness. Plaintiff also submits that Fong offered Plaintiff a return to his old position (after his sick leave and after the filing of the workers’ compensation claim) to show that Fong did not actually believe that the workers’ compensation claim was false. (Wu Decl., ¶ 15, Ex. D.)

Attempting to show ill will, Plaintiff asserts that Fong chastised him on various occasions. Once, when he was lodging a complaint about Fu-Chang with Pun, Fong entered the room and ordered Plaintiff to change his “tone and attitude.” (Wu Decl., ¶ 11.) Plaintiff also asserts that Fong was arrogant and sneering during a meeting with Plaintiff about his return-to-work following his medical leave (Wu Decl., ¶ 15.)

Nevertheless, as noted by Defendants, Plaintiff’s workers’ compensation claim indicates that he had been “injured” since November 2007, when he started working for Mega Bank. (Fu-Chang Decl., ¶ 4, Ex. 1.) And according to Fong, Plaintiff had not advised anyone at Mega Bank that he was suffering from “work stress” prior to filing the workers’ compensation claim. (Fong Decl., ¶ 11.) Plaintiff also continued to work full-time at Mega Bank for nearly two months after filing the workers’ compensation claim. (Fong Decl., ¶ 12.) Based on these facts, Fong asserts that he believed that the claim for “work stress” was false. (Fong Decl., ¶¶ 14-15.)

The court finds that Plaintiff has failed to establish that Fong was motivated by ill will or hatred of Fong in sending the June 21, 2021 email to Pun. The court also finds that Plaintiff has failed to establish that Fong lacked reasonable grounds for believing that the workers’ compensation claim based on “work stress” was false. Therefore, the court finds that Plaintiff has failed to show that Fong sent the email to Pun with actual malice. Consequently, the common interest privilege applies to bar all claims based on the June 21, 2021 email.

Plaintiff argues that discovery in the form of depositions of Fong and Fu-Chang need to occur in order to establish their knowledge of whether Plaintiff’s workers’ compensation claim was “false.” Plaintiff did not, however, file a noticed motion to conduct such discovery. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357; Code Civ. Proc., § 425.16, subd. (g).)

Based on the foregoing, the court grants Defendants’ special motion to strike from the complaint paragraph 43; subparagraphs 59(b), 65(e), 75(e), and 84(b); and, the sixth cause of action for “Defamation – Libel and Slander.”

[1] The only allusion to an analysis of the sufficiency of Plaintiff’s claims is a concession that the retaliation claim must be dismissed as to the individual defendants. (Opp’n, p. 14:23-24.)

YONG WU ; Plaintiff, vs. MEGA BANK , et al., Defendants.	Case No.:	22AHCV00376

	Hearing Date:	September 2, 2022

	Time:	8:30 a.m.

	[TENTATIVE] ORDER RE: SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT