Judge Robert S. Draper, Case 22STCV11856 2023-05-15 Tentative Ruling

Judge: Robert S. Draper, Case: 22STCV11856, Date: 2023-05-15 Tentative Ruling

Case Number: 22STCV11856 Hearing Date: May 15, 2023 Dept: 78

Department 78, Spring Street Courthouse

May 15, 2023

22STCV11856

Cross-Defendant Irving Pacheco’s Anti-Slapp Motion to Strike

DECISION

The motion is denied. Moving party to provide notice.

Discussion.

Factual Background

This motion concerns Plaintiff and Cross-Defendant Irving Pacheco’s Anti-SLAPP Motion to Strike the first, second, fifth, sixth, and seventh causes of action from Defendant and Cross-Plaintiff Universal Protection Service, LP’s First Amended Cross-Complaint.

This action arises out of a dispute between a security company and one of its former employees. The Cross-Complaint alleges as follows.

Pacheco began working for Universal in December, 2019 and was terminated in October 2020 after Universal received three complaints about Pacheco’s inappropriate behavior toward other employees. (Amended Cross-Complaint, ¶¶ 7-15.) However, even after he was terminated, Pacheco maintained exclusive access to an email address entitled SOR@aus.com (the “SOR Mailbox”), which Universal created for Pacheco at his request and to which Pacheco was the only person with login credentials. (Id. at ¶ 16.)

In October 2020, Pacheco began working for Securitas, one of Universal’s competitors, at a Kaiser Permanente facility. (Id. at ¶ 18.) Pacheco subsequently learned that Universal would be replacing Securitas as Kaiser’s security company. (Id. at ¶ 19.) In response, on September 1, 2021, Pacheco accessed the SOR Mailbox and sent an email to nearly two dozen Kaiser employees stating that Universal had a discriminatory and retaliatory “culture”, and that he hoped Kaiser went “with a different security provider” for this reason. (Ibid.) Pacheco used an email signature which made it appear that the message was coming from a “Diversity, Inclusion, and Employee Experience” group within Universal, which in fact did not exist. (Ibid.)

Universal became aware of Pacheco’s actions and discovered that Pacheco had also fabricated a conversation between the fictitious “Diversity, Inclusion, and Employee Experience” group and his personal email address using the SOR Mailbox. (Id. at ¶ 20.) In this exchange, Pacheco made it seem as if Universal conducted a new investigation into his employment and admitted that he was retaliated against – when in fact, no such thing occurred. (Ibid.) Universal suspects that Pacheco was using this exchange to fabricate and provide false evidence to the Equal Employer Opportunity Commission (“EEOC”), in connection with a Charge of Discrimination he filed (No. 480-2021- 00576). (Ibid.)

Universal also accuses Pacheco of sending a message to one of Universal’s competitors through the SOR Mailbox in order to create the impression that Pacheco was employed by Universal as a client manager (a higher-ranking position than the one he held during his previous employment); create an Indeed account in order to post a job listing for an Area Vice President position with Universal (no such position existed); and create a LinkedIn profile impersonating a Universal executive. (Id. at ¶ 21.)

Procedural Background

On April 7, 2022, Pacheco filed the initial complaint.

On July 14, 2022, Pacheco filed an Amended Complaint asserting eight causes of action:

1. Race Discrimination in Violation of FEHA;

2. Disability Discrimination in Violation of FEHA;

3. Retaliation in Violation of FEHA and CFRA;

4. Failure to Prevent Discrimination and Retaliation in Violation of FEHA;

5. Failure to Accommodate;

6. Failure to Engage in the Good Faith Interactive Process;

7. Whistleblower Retaliation (1102.5); and

8. Wrongful Termination in Violation of Public Policy

On August 19, 2022, Universal filed the initial Cross-Complaint.

On November 2, 2022, Universal filed an Amended Cross-Complaint asserting seven causes of action:

1. Violation of the Computer Fraud and Abuse Act;

2. Violation of California Penal Code Section 502(C)(2);

3. Federal Trademark Infringement 15 U.S.C. Section 1114;

4. Common Law Trademark Infringement;

5. Defamation—Libel;

6. Trade Libel; and

7. Fraud—Intentional Misrepresentation

On December 2, 2022, Pacheco filed an Answer to the Amended Cross-Complaint.

On December 23, 2022, Pacheco filed this Special Motion to Strike under Code of Civil Procedure Section 425.16 (Anti-SLAPP). On May 2, 2023, Universal filed an opposition. On May 8, 2023, Pacheco filed a reply.

Objections

Plaintiff and Cross-Defendant Irving Pacheco files 20 objections to the Declaration of Turek in support of Universal’s Opposition. Because the Court finds that Pacheco does not meet his burden of showing that the conduct underlying the cross-claims is protected activity, the objections are moot.

Timeliness

As a preliminary matter, Defendant and Cross-Plaintiff Universal contends that Pacheco’s Anti-SLAPP motion is untimely.

Code of Civil Procedure section 425.16, subdivision (f) governs the timeliness of a special motion to strike:

The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.

Universal filed the initial Cross-Complaint on August 19, 2022. It filed the Amended Cross-Complaint on November 2, 2023. Pacheco filed this Motion on December 23, 2023.

The parties dispute whether the filing of the Amended Cross-Complaint reset the clock for filing an Anti-SLAPP motion.

The 60–day period runs anew from the filing of an amended complaint, at least where the preceding complaint “contained no anti–free–speech claims.” (Lam v. Ngo (2001) 91 Cal.App.4th 832, 841.) Therefore, Pacheco’s motion would be timely as long as the initial Cross-Complaint did not contain anti-free-speech claims. However, as Universal correctly points out, the initial Cross-Complaint contains the same allegations as the Amended Cross-Complaint.

Therefore, the motion was filed late and the Court denies the motion on this basis.

However, even if the motion was not filed late, the Court would still deny the motion.

Merits

Cross-Defendant Irving Pacheco moves to strike the First, Second, Fifth, Sixth, and Seventh Causes of Action of Cross-Plaintiff Universal Protection Service’s Amended Cross-Complaint pursuant to Code of Civil Procedure section 425.16.

In assessing a section 425.16 special motion to strike, the court must engage in a two-step process. (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.) First, the court must decide whether the moving party has met the threshold burden of showing that the causes of action arise from the moving party’s constitutional rights of free speech or petition for redress of grievances. (Ibid.) This burden may be met by showing the acts which forms the bases for the causes of action were acts that fall within one of the four categories of conduct set forth in 425.16(e). If the defendant meets his initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim—i.e., present facts which would, if proved at trial, support a judgment in the plaintiff’s favor. (Id. at 15051.)

In making its determination of the anti-SLAPP motion, 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(b)(2).) However, the court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)

A. Step One: Whether the Cross-Claims Arise from Protected Activity

Pacheco, as the party bringing the anti-SLAPP motion, has the burden of showing that Universal’s Amended Cross-Complaint asserts causes of action that are based on Constitutionally protected free speech or petition for redress of grievances. The Court finds that Pacheco does not meet his burden.

Pacheco contends that the first, second, fifth, sixth, and seventh causes of action are predicated at least in part on statements Pacheco made to the EEOC in the course of making his discrimination charge and that those statements are protected conduct under Code of Civil Procedure section 425.16(e).

“A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) “‘[T] 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.’” (Id. at 1063 (quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78) (emphasis in original).) “‘[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.’” (Id. (quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89) (alteration in original).) “Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’” (Id. (quoting Navellier, supra, 29 Cal.4th at 92) (alteration in original).) “‘The only means specified in section 425.16 by which a moving defendant can satisfy that [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’” (Id. (quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66) (emphasis in original).) “In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id.)

1. The Cross-Claims are Based on Protected and Unprotected Conduct

Universal’s Amended Cross-Complaint is based on a number of actions undertaken by Pacheco, some of which are protected and others of which are unprotected.

Pacheco seeks to strike the entirety of causes of action 1, 2, 5, 6, and 7. As an initial matter, the Court cannot strike an entire claim if it finds that the claim is only partly based on protected activity, as long as the other unprotected activity adequately supports the claim.

The first cause of action is based on Pacheco impermissibly and without authorization logging on to Universal’s computer system after he was terminated to send emails to various different people and entities “for the purpose of impersonating the Company and its personnel for Pacheco’s gain and for use in interstate commercial activities.” (Amended Cross-Complaint, ¶ 27.) As discussed supra, those emails included: 1) emails to Universal’s current or prospective client, 2) emails to his own personal email address, and 3) emails to one of Universal’s competitors. (Id. at ¶ 28.) Pacheco also used the email access to create a LinkedIn profile impersonating a Universal executive. (Ibid.)

The second cause of action is based on Pacheco “falsely and fraudulently represent[ing] an association with Universal when there was none and [sic] disparag[ing] both the reputation of Universal and the services it provides to its customers, potential applicants, and governmental entities.” (Id. at ¶ 32.)

The fifth and sixth causes of action are similarly both based on Pacheco’s emails to potential customers and the EEOC. (Id. at ¶¶ 52 and 58.)

The seventh cause of action, on the other hand, is based on Pacheco’s emails to his own personal address that Universal claims were falsified in order to support the discrimination claim Pacheco filed with the EEOC.

Only some of the conduct underlying the cross-claims would qualify as protected speech.

Section 425.16 defines protected speech as "1) oral or written statements made “before” a legislative, executive, judicial or any other official proceeding; (2) oral or written statements made “in connection with an issue under consideration or review by” a legislative, executive, judicial body, or “any other official proceeding authorized by law;” (3) written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest; and 94) “any other” conduct in furtherance of the exercise of the constitutional rights of petition or free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)

Pacheco’s statements to the EEOC constitute written or oral statements to an executive branch of government. However, the cross-claims are also based on other unprotected conduct. For example, the emails Pacheco allegedly falsified and sent to himself were not made in connection with an issue under consideration by a body or official proceeding. Nor were the emails sent to employees at Kaiser Permanente and other third parties public matters. Therefore, the Court cannot move past step one in its analysis with regard to the unprotected conduct. Moving forward, the Court will focus solely on Pacheco’s statements to the EEOC.

Universal does not dispute that Pacheco’s emails to the EEOC, which comprise part of the conduct giving rise to cross-claims 1, 2, 5, 6, and 7, fit into a category of protected speech. However, as discussed below, Universal alleges that Pacheco’s Motion is barred because his “protected” statements were based on illegal activity, and therefore that Pacheco does not meet his burden.

2. Conduct Constituting Illegal Activity Bars Pacheco’s Motion

Universal argues that Pacheco is precluded from using the Anti-SLAPP statute because his statements to the EEOC were based on fraudulent and deceptive activities, including (i) impermissibly accessing the SOR e-mail account; (ii) impersonating Universal employees for the purpose of “building a case” against Universal; and (iii) knowingly communicating false and fabricated information to the EEOC.

Section 425.16 does not apply to speech and petitioning activity that is illegal as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 311.) “If the defendant concedes or the evidence conclusively establishes the conduct complained of was illegal, as a matter of law the defendant cannot make a prima facie showing the action arises from protected activity within the meaning of section 425.16.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1246.)

Universal relies on Flatley, supra, for the proposition that Pacheco’s emails are illegal as a matter of law. In Flatley, the California Supreme Court held that an attorney’s demand letter and subsequent communications constituted criminal extortion because the plaintiff threatened criminal exposure unless he paid the settlement demand. (Flatley, supra, 39 Cal.4th at p. 324.) The defendant there claimed that the communications were a pre-litigation settlement offer. (Ibid.) The Flatley Court observed that an activity could be deemed criminal as a matter of law when a defendant concedes criminality or the evidence conclusively shows criminality. (Ibid.) At the same time, the Supreme Court cautioned that a defendant's “mere assertion that his [or her] underlying activity was constitutionally protected” will not suffice to shift to the plaintiff the burden of showing that the defendant's underlying activity was criminal, and not constitutionally protected. (Id. at 317.) As the Supreme Court aptly concluded, such a rule would “eviscerate the first step of the two-step inquiry set forth in the [anti-SLAPP] statute.” (Ibid.) “While a defendant need only make a prima facie showing that the underlying activity falls within the ambit of the statute, ... the statute envisions that the courts do more than simply rubberstamp such assertions before moving on to the second step.” (Ibid.)

Gerbosi v. Gaims, Weil, West & Epstein, a Court of Appeal case applying Flatley, is instructive here. In Gerbosi, a complaint alleged causes of action based on an attorney hiring a private investigator to illegally wiretap telephones so as to get an unfair advantage for a client’s legal matters. (Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435, 446.) The attorney filed an Anti-SLAPP motion claiming that underlying conduct was protected speech in connection with an ongoing legal matter. (Ibid.) The Gerbosi Court ruled that the attorney could not proceed past step one of his Anti-SLAPP motion. (Ibid.) Notably, the attorney in opposition attempted to put forth facts to show that it did not in fact do the wiretapping acts alleged in the complaint. (Ibid.) However, the Court found that this argument unpersuasive because whether or not the attorney was actually guilty of the acts alleged, under no circumstances do those acts constitute protected activity. (Ibid.)

Similarly, here, Pacheco is accused of fraudulently accessing the SOR Mailbox, conduct that undisputedly is unprotected by the free speech rights. And, like the attorney in Gerbosi, in an attempt to proceed past step one, Pacheco attempts to disprove this accusation. Pacheco contends that Universal cannot prove that he was the one who sent the fraudulent emails, rendering Universal’s claims unlikely to succeed on their merits. Pacheco disputes that he was the only person with to access to the SOR Mailbox. Pacheco contends that his supervisor while he was at Universal and his successor had access to the mailbox. (Pacheco Decl. ¶¶ 3-4.) Moreover, he alleges that his former supervisor indicated that he would share the credentials more widely within the department. (Pacheco Decl. ¶ 3.) Pacheco also argues that it was impossible for him to have authored the emails because, in order to access the SOR mailbox, Pacheco would have needed to access the Universal network through a VPN with his Universal Employee ID and Password, which Universal admits it cancelled when he was terminated.

Pursuant to Gerbosi, this evidence should not be considered at step one of the analysis because it goes to disproving the allegations against Pacheco rather than showing that Pacheco’s actions were protected.

Accordingly, Pacheco does not meet his initial burden to show that the cross-claims were based on protected conduct.

Accordingly, Pacheco’s Anti-SLAPP Motion to Strike Universal’s First, Second, Fifth, Sixth, and Seventh Causes of Action is denied.

Attorney’s Fees

Both parties request attorney fees in connection with this motion. The “prevailing defendant” on the motion to strike “shall be entitled” to recover attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c).)

Here, Cross-Plaintiff Universal is the prevailing party on this motion and is entitled to attorney fees. To the extent Plaintiff desires attorney fees, Plaintiff is to file a noticed motion pursuant to statutory requirements.