Edward M. Kashian brought this action against Richard L. Harriman and Valley Advocates (collectively Harriman) for what he alleged were Harriman's unfair business practices and defamatory statements about him. Harriman filed a special motion to strike Kashian's complaint pursuant to section 425.16 of the Code of Civil Procedure,
FACTUAL AND PROCEDURAL HISTORY
Kashian is a prominent businessman and civic leader in Fresno, who, when this dispute arose, was serving as chairman of the board of trustees of Community Hospitals of Central California (CHCC or Community), a nonprofit, tax-exempt corporation.
Harriman is an attorney in Fresno who has filed numerous public interest lawsuits on behalf of various environmental interests in the San Joaquin Valley, including Valley Advocates. The present controversy arose in an entirely different context, however.
In 1999, some local medical providers and advocacy groups became concerned about CHCC's plan to build and operate a
In May of 2000, again according to news reports, some of the concerned groups wrote to the Division of Charitable Trusts within the Attorney General's office, seeking an investigation into Community's activities on several grounds, including their concerns that Community's involvement in a for-profit hospital (in direct competition with them) would conflict with its status as a tax-exempt corporation, and would interfere with its completion of a regional medical center in downtown Fresno (under a contract with the county to provide indigent medical care).
On May 22, 2000, Harriman wrote a similar letter on behalf of KGP and Valley Advocates, joining in the request for a formal investigation of Community's tax-exempt status.
In his letter, Harriman requested the Attorney General's office also conduct an investigation into a possible conflict of interest between Kashian's private business interests and his role as chairman of the
At the end of the letter is a notation indicating Harriman sent a copy to "Clients."
The Fresno Bee Article
On June 1, 2000, the Fresno Bee published a news article reporting on Harriman's letter, under the headline "Hospital official assailed." The article focussed primarily on the accusations about Kashian, and quoted parts of the letter, including the excerpt cited above. Kashian was quoted in the article as saying the accusations were "`completely false.'" Harriman reportedly refused to comment on the letter when contacted by a Bee reporter.
The same article also appeared on the Bee's Internet website.
On June 19, 2000, Kashian, on behalf of himself and members of the public, filed a lawsuit against Harriman and Valley Advocates, asserting three causes of action. The first was for unfair and deceptive business practices in violation of section 17200 of the Business and Professions Code.
Harriman's purpose in filing these lawsuits, according to Kashian, was not to advance the public interest but "to extort settlements and reap the financial benefits to Harriman from the amounts paid by the various named defendants, many of them public entities funded by taxpayers, which named defendants choose to settle such suits in order to avoid the costs inherent in defending such suits." On this basis, Kashian sought an order enjoining Harriman
Kashian's second and third causes of action were for defamation, and overlapped one another to some degree. Both alleged Harriman's letter was false and defamatory inasmuch as it "stated or lead [sic ] the reader to believe that Mr. Kashian had used his position on the board of Community Medical Centers to advance his own financial interest improperly and in a dishonest, unethical or illegal manner." Both also alleged Harriman had been negligent by failing to verify the truth and accuracy of statements in the letter. The second cause of action was directed primarily at Harriman's delivery of the letter to the Attorney General's office. The third cause of action was focussed on the letter's appearance in the newspaper, and alleged Harriman, "deliberately and with actual malice, published these false [and defamatory] statements by sending or causing to be sent a copy of this letter to the Fresno Bee...."
Harriman's SLAPP Motion
Harriman filed a special motion to strike Kashian's complaint on July 19, 2000. He argued that both his environmental litigation activities and his letter to the Attorney General were absolutely privileged (Civ.Code, § 47, subd. (b)), and failed in any event to constitute a deceptive business practice or an actionable defamation, respectively. In his accompanying declaration, Harriman specifically denied Kashian's allegations about the purposes behind his environmental litigation.
As for Kashian's defamation claims, Harriman acknowledged sending his letter to the Attorney General. And he said he also sent copies to his clients (presumably Valley Advocates and KGP) and to the two other organizations with which he was joining to request an investigation of CHCC (presumably St. Agnes and LHCC). But he declared: "at no time did I provide a copy of the letter, or of its contents, nor did I arrange for the letter to be conveyed, to the Fresno Bee."
Kashian's opposition to Harriman's SLAPP motion dealt principally with the first cause of action for unfair competition. Kashian attached declarations by three individuals who had been involved in one way or another with Harriman's previous environmental lawsuits, as well as his own (Kashian's) declaration; evidentiary objections to Harriman's declaration in support of the motion; and a request the court take judicial notice of certain pleadings and other documents related to the earlier suits. He also challenged Harriman's claims of privilege.
In reply, Harriman argued the evidence proffered by Kashian did not support his unfair competition claim, and noted in any case that most of it related to events that had occurred outside the four-year statutory limitations period for such claims. He also submitted the declarations of three more individuals involved with the environmental organizations on whose behalf he had filed suit, and another declaration of his own. Kashian again filed written objections to the declarations.
In anticipation of a hearing on Harriman's SLAPP motion set for August 30, 2000, the court issued a tentative decision granting the motion as to all causes of action, on the ground Kashian had failed to establish he was likely to prevail if his claims went to trial. The hearing followed as scheduled, after which the court took the matter under submission. It issued a written order granting the motion on September 22, 2000.
The Court's Order
The court concluded Harriman had met his initial burden of showing Kashian's action was subject to the anti-SLAPP statute, such that the burden then shifted to Kashian to establish a probability he would prevail if the action were to go to trial. The court held Kashian had failed to meet this burden.
As for the first cause of action for unfair competition, the court found the evidence failed to show that Valley Advocates and the other groups on whose behalf Harriman had filed environmental lawsuits were merely sham corporations he used to pursue meritless litigation for his own benefit. The court made no ruling about whether statements made in connection with the lawsuits were privileged.
As for the second cause of action for defamation (as a result of sending the letter to the Attorney General), the court concluded Harriman's statements were privileged under section 47, subdivision (b) of the Civil Code. The court declined to decide whether the privilege was a qualified one (in which case it could be defeated by a showing the statements were made with actual malice), or it was absolute (in which case it applies regardless of malice). This was so, the court explained, because the evidence failed to show Harriman had acted with malice in any event.
And, as for the third cause of action for defamation (as a result of the Fresno Bee article), the court found the evidence failed to show it was Harriman who sent the letter to the newspaper. It also ruled Harriman's delivery of the letter to third persons (his clients, again presumably St. Agnes and LHCC) was privileged under Civil Code section 47, subdivision (c).
On November 9, 2000, Kashian filed a timely notice of appeal from the court's order granting Harriman's SLAPP motion. (See §§ 425.16, subd. (j), 904.1, subd. (a)(13); Kyle v. Cannon (1999) 71 Cal.App.4th 901, 906-907, 84 Cal.Rptr.2d 303 [order granting or denying a special motion to strike under section 425.16 is appealable order].)
On November 30, the court granted Harriman's motion for costs and attorney fees in the amount of $7,296.15. Kashian appealed from this order, and Harriman cross-appealed. (See § 904.1, subd. (a)(2); Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46, 269 Cal.Rptr. 228 [postjudgment order awarding costs and attorney fees is separately appealable].) We subsequently dismissed Harriman's cross-appeal.
I. The Anti-SLAPP Statute
The Legislature enacted section 425.16 in 1992 to provide a procedure by
Thus, section 425.16 requires the trial court to undertake a two-step process in determining whether to grant a SLAPP motion. "First, the court decides whether the defendant has made a threshold prima facie showing that the defendant's acts, of which the plaintiff complains, were ones taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue." (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, 102 Cal.Rptr.2d 864 (Paul for Council).)
If the court finds the defendant has made the requisite showing, the burden then shifts to the plaintiff to establish a "probability" of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiffs favor. (Kyle v. Carmon, supra, 71 Cal.App.4th at p. 907, 84 Cal.Rptr.2d 303.) The court also considers the defendant's opposing evidence, but only to determine if it defeats the plaintiffs showing as a matter of law. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 867, 44 Cal.Rptr.2d 46.) That is, the court does not
Whether section 425.16 applies, and whether the plaintiff has shown a probability of prevailing, are both questions we review independently on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, 113 Cal.Rptr.2d 625.)
Kashian, in his opening brief, concedes the first part of the two-step process by acknowledging the anti-SLAPP statute applies to all three causes of action stated in his complaint. However, on January 30, 2002, after briefing was complete, an opinion was filed in Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 116 Cal.Rptr.2d 187 (Kajima), in which the appellate court affirmed the trial court's order denying Kajima's SLAPP motion. The court concluded section 425.16 did not apply to the causes of action asserted in the city's cross-complaint, including several for unfair business practices. Kashian called Kajima to our attention and requested the opportunity to submit supplemental briefing on the question of whether the same must be said about his cause of action for unfair competition. We granted the request. After reviewing the case and the parties' briefs, we conclude the statute applies.
Kajima sued the city for breach of contract and other related causes of action, claiming it had not been paid for work performed on a construction project. The city cross-complained against Kajima for breach of contract and of the implied covenant of good faith and fair dealing in connection with Kajima's bidding and performance on the project. The city later filed an amended cross-complaint alleging 19 additional causes of action, including three for unfair business practices. Kajima moved to strike the amended cross-complaint under section 425.16, contending it was filed in retaliation for Kajima's exercise of its First Amendment right to petition for redress of grievances (i.e., for having filed the complaint against the city). The trial court initially granted the motion, but later reinstated the amended cross-complaint (except for one cause of action), and Kajima appealed. (Kajima, supra, 95 Cal.App.4th at pp. 924-926, 116 Cal.Rptr.2d 187.)
As the appellate court noted, the moving defendant in a SLAPP action has the initial burden of showing the plaintiffs challenged cause of action arose from an act by the defendant in furtherance of its right of petition or free speech. (Kajima, supra, 95 Cal.App.4th at p. 928, 116 Cal.Rptr.2d 187.) Notwithstanding Kajima's claim of retaliation, the court found the city's amended cross-complaint alleged causes of action "arising from Kajima's bidding and contracting practices [that had occurred prior to its lawsuit], not from acts in furtherance of its rights of petition or free speech." (Id. at p. 929, 116 Cal.Rptr.2d 187.) The city's claims for unfair competition, for example, alleged Kajima had engaged in acts that included "`intentional underbidding, bid-shopping, [and] submission of false and inflated construction claims and change orders ...,'" none of which implicated the company's
In the present case, by contrast, Kashian's cause of action for unfair competition arose directly from Harriman's acts or statements, or alleged acts or statements, made in connection with environmental litigation he was bringing on behalf of Valley Advocates and other organizations. Filing a lawsuit is an exercise of one's constitutional right of petition, and statements made in connection with or in preparation of litigation are subject to section 425.16. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564.)
For example, Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 43 Cal.Rptr.2d 350 involved a suit brought by the City of Barstow against Glen Ludwig, a developer, for unfair competition and other similar claims. The suit alleged that Ludwig, who hoped to build a shopping mall in competition with one planned within the city limits, had induced others to file meritless objections to the Barstow project, both judicial and administrative, in an effort to delay or defeat it. The trial court denied Ludwig's SLAPP motion, and he petitioned the appellate court for a writ of mandate directing the lower court to grant it. The court issued the writ. It concluded Ludwig's actions were communicative conduct protected under section 425.16 because they were taken "`in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law....'" (Id. at p. 17, 43 Cal.Rptr.2d 350, quoting § 425.16, subd. (e)(2).)
Several other decisions likewise have adopted a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16. The defendant in Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 54 Cal.Rptr.2d 830, an action for defamation, was a law firm conducting an investigation in anticipation of filing a complaint with the Attorney General. Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th 628, 49 Cal.Rptr.2d 620 involved an action to set aside a court judgment the defendant had received in a
The bulk of Kashian's supplemental brief concerns an issue having little to do with Kajima.
The appellate court reversed. It noted the Legislature, in the preamble to section 425.16, expressed it's concern over "`a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.'" (Paul for Council, supra, 85 Cal. App.4th at p. 1363, 102 Cal.Rptr.2d 864, quoting § 425.16, subd. (a).) The court also noted, on the other hand, that the statute by its terms applies to "cause[s] of action against a person `arising from any act of that person in furtherance of the person's [constitutional rights]'" (Paul for Council, at p. 1366, 102 Cal.Rptr.2d 864, quoting § 425.16, subd. (b)(1)), and defines such acts to include "`any written or oral statement or writing,'" or "`any other conduct'" (Paul for Council, at p. 1366, 102 Cal.Rptr.2d 864, quoting § 425.16, subds. (e)(1)-(e)(3) & (e)(4), respectively). The court concluded that, although it is "technically true" laundering campaign money is an act in furtherance of a protected right (to make campaign contributions), the Legislature could not have intended to include such illegal activity in the scope of section 425.16, i.e., money laundering is not a "valid" exercise of one's constitutional rights. (Paul for Council, supra, 85 Cal.App.4th at pp. 1366, 1367, 102 Cal.Rptr.2d 864.)
Having just reached this conclusion, however, the court then noted its obvious limitations.
"As we have noted, a defendant need only make a prima facie showing that the plaintiffs suit arises `from any act of [the defendant] 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.' (§ 425.16, subd. (b)(1).) If the plaintiff contests this point, and unlike the case here, cannot demonstrate as a matter of law that the defendant's acts do not fall under section 425.16's protection, then the claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiffs burden to provide a prima facie showing of the merits of the plaintiffs case. As the court in Wilcox[v. Superior Court, supra, 27 Cal.App.4th 809, [33 Cal.Rptr.2d 446]] put it, this is an additional burden which the plaintiff must address. `[W]e believe this burden should be met in the same manner the plaintiff meets the burden of demonstrating the merits of its causes of action: by showing the defendant's purported constitutional defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses.' (Wilcox, supra, 27 Cal.App.4th at p. 824, [33 Cal.Rptr.2d 446], italics added.)" (Paul for Council, supra, 85 Cal.App.4th at p. 1367, 102 Cal.Rptr.2d 864.)
This is just such a case, where the legality of Harriman's litigation activities is a matter of considerable dispute.
In a similar vein, Kashian also notes Harriman failed to specifically deny many of the assertions made in the declarations submitted by Kashian in opposition to the SLAPP motion, particularly those accusing Harriman of having engaged in a variety of deceptive litigation practices. Harriman's failure to deny the assertions, Kashian urges, should be deemed adoptive admissions to the effect the accusations are true. (See Evid.Code, § 1221; People v. Silva (1988) 45 Cal.3d 604, 623, 247 Cal.Rptr. 573, 754 P.2d 1070 [hearsay exception].)
In sum, Kashian contends the evidence, viewed in this way, is sufficient at least circumstantially to permit a trier of fact to find in his favor on all three causes of action against Harriman. We consider these contentions where appropriate, but first we briefly review the subject of privilege.
Section 47 of the Civil Code provides, in part, that "[a] privileged publication or broadcast is one made:
Subdivisions (b) and (c) of the statute create two different types of privilege. We emphasize this because Kashian, in arguing none of Harriman's actions were privileged, appears sometimes to confuse the two. Moreover, there are several different actions to which one or the other of the privileges arguably might apply: Harriman's environmental litigation activities (the first cause of action for unfair competition); his delivery of the May 22, 2000, letter to the Attorney General (the second cause of action for defamation); his delivery of the letter to his clients and possibly other "interested" parties (the third cause of action for defamation); and delivery of
Some of the confusion revolves around whether the applicable privilege is an absolute or a qualified one.
A. The Litigation Privilege
Civil Code section 47, subdivision (b) defines what is commonly known as the "litigation privilege."
The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1302, 100 Cal.Rptr.2d 437.) Put another way, application of the privilege does not depend on the publisher's "motives, morals, ethics or intent." (Silberg v. Anderson, supra, 50 Cal.3d at p. 220, 266 Cal.Rptr. 638, 786 P.2d 365.) Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having "some relation" to a judicial proceeding, and to all torts other than malicious prosecution. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29, 61 Cal.Rptr.2d 518.) Moreover, "[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [Citation.] [¶] ... [¶] [The] absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. [Citation.] The privilege is based on `[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.' [Citation.]" (Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th at p. 1303, 100 Cal.Rptr.2d 437 [holding privilege applies to husband's report to DMV regarding wife's drug use and its possible impact on her ability to drive].)
If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1139-1140, 57 Cal.Rptr.2d 284.) Any doubt about whether the privilege applies is resolved in favor of applying
Kashian argues on the strength of Fenelon v. Superior Court (1990) 223 Cal.App.3d 1476, 273 Cal.Rptr. 367, that Harriman's letter to the Attorney General was subject only to a "conditional litigation privilege" under Civil Code section 47, subdivision (b). We will address the merits of this contention later on in our discussion, but mention it here just to point out for the sake of clarity that there is no such thing. The issue in Fenelon, a defamation suit, was whether the defendant's knowingly false police report accusing the plaintiff of a crime was subject to the absolute litigation privilege in subdivision (b) (then subdivision (2)), or the qualified "common interest" privilege in subdivision (c) (then subdivision (3)). The court disagreed with an earlier decision in Williams v. Taylor (1982) 129 Cal.App.3d 745, 181 Cal.Rptr. 423, which had taken the former view, and held instead that only the qualified privilege applied. We discuss this privilege next.
B. The Common Interest Privilege
Civil Code section 47, subdivision (c) codifies the common law privilege of common interest, "which protected communications made in good faith on a subject in which the speaker and hearer shared an interest or duty. This privilege applied to a narrow range of private interests. The interest protected was private or pecuniary; the relationship between the parties was close, e.g., a family, business, or organizational interest; and the request for information must have been in the course of the relationship." (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727, 257 Cal.Rptr. 708, 771 P.2d 406; see also Lundquist v. Reusser, supra, 7 Cal.4th 1193, 31 Cal.Rptr.2d 776, 875 P.2d 1279.) Thus, the statute does not create a broad "public interest privilege" protecting publications by the news media to the general public regarding private persons, just because the publications pertain to matters of general public interest. (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 738, 257 Cal.Rptr. 708, 771 P.2d 406.)
This definition is not exclusive, however, and the cases have taken an "eclectic approach" toward interpreting the statute. (Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1, 7, 170 Cal.Rptr. 411.)
The common interest privilege is usually described as a qualified or conditional one, meaning it can be overcome by a showing of malice. But, "[t]his characterization is somewhat misleading. Section 47(3) [now § 47, subd. (c) ] defines a privileged communication as one made without malice. Thus, if malice is shown, the privilege is not merely overcome; it never arises in the first instance." (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 723, fn. 7, 257 Cal.Rptr. 708, 771 P.2d 406.) Malice for purposes of the statute means "`a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.' " (Id. at p. 723, 257 Cal.Rptr. 708, 771 P.2d 406.) "[M]alice is not inferred from the communication." (Civ.Code, § 48.)
Application of the privilege involves a two-step analysis. The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice. (Lundquist v. Reusser, supra, 7 Cal.4th 1193, 31 Cal.Rptr.2d 776, 875 P.2d 1279.) The existence of the privilege is ordinarily a question of law for the court. (Institute of Athletic Motivation v. University of Illinois, supra, 114 Cal.App.3d at p. 13, fn. 5, 170 Cal.Rptr. 411.)
With these definitions of the litigation and common interest privileges in mind, we now consider the three causes of actions asserted in Kashian's complaint to determine if one or the other of the privileges applies to them.
First Cause of Action (Unfair Competition)
As we have already discussed, Kashian's unfair competition claim "arises from" Harriman's litigation activities, and so falls within the scope of the anti-SLAPP statute. (§ 425.16, subd. (e)(2).) For much the same reason, the claim concerns communications ordinarily protected by the litigation privilege. (See Dove Audio, Inc. v. Rosenfeld Meyer & Susman, supra, 47 Cal.App.4th at p. 784, 54 Cal.Rptr.2d 830 [just as communications preparatory to seeking an investigation by the Attorney General are protected by the litigation privilege, they are also entitled to the benefits of the anti-SLAPP statute].) Nonetheless, Kashian contends the privilege does not apply for three reasons.
First, he argues Harriman's "practice of filing complaints with sham plaintiffs for the purpose of deceiving the target defendants" (footnote omitted) was conduct rather than speech. That is, while the anti-SLAPP statute applies to a cause of action arising from "any act" (i.e., conduct) of a person taken in furtherance of their right to petition or free speech (§ 425.16, subd. (b)(1)), the litigation privilege applies only to a "publication or broadcast" (i.e., speech) made in connection with an official proceeding (Civ.Code, § 47, subd. (b)). (See Ludwig v. Superior Court, supra, 37 Cal.App.4th at p. 19, 43 Cal.Rptr.2d 350.)
Kashian relies on Kimmel v. Goland (1990) 51 Cal.3d 202, 271 Cal.Rptr. 191, 793 P.2d 524 (Kimmel). In Kimmel, residents of a mobilehome park sued the park's owners in a dispute over the residents' right to sell their mobilehomes. In anticipation of the suit, some of the residents surreptitiously taped their conversations with park personnel, without the latter's consent. When the owners learned of the tapes, they filed a cross-complaint against the residents, seeking damages for the illegal recording. (Pen.Code, §§ 632,
The appellate court reversed, and the Supreme Court affirmed the reversal. In so doing, the court distinguished between communicative and noncommunicative conduct. It explained the privilege would apply to a cause of action based on a communication or publication of the content of the illegal recording (if made in connection with litigation), but did not apply to the owners' claim for damages based on the act of recording itself. (Kimmel, 51 Cal.3d at pp. 209-212, 271 Cal.Rptr. 191, 793 P.2d 524.) "[O]ur holding that the litigation privilege does not apply is limited to the injury resulting from [the owners'] and [their attorney's] conduct. To the extent the complaint rests on [the attorney's] alleged communicative acts of `counseling' and `advising' his clients, the privilege is clearly operative." (Id. at p. 208, fn. 6, 271 Cal.Rptr. 191, 793 P.2d 524, see also Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1480, 37 Cal.Rptr.2d 769 [doctor's negligence during examination preparatory to litigation not subject to privilege].)
Subsequent decisions have drawn this same distinction, and found the acts in question were a form of communicative conduct and thus absolutely protected by the litigation privilege. In Rubin v. Green, supra, 4 Cal.4th 1187, 17 Cal.Rptr.2d 828, 847 P.2d 1044, the owner of (still another) mobilehome park sued a resident and her attorney for assorted tort causes of action on the ground they were unlawfully soliciting other residents to join in an anticipated lawsuit against the owner. The residents later filed the suit, whereupon the owner amended his complaint to add an unfair competition cause of action for injunctive relief. The trial court sustained the residents' demurrer to the owner's amended complaint, ruling the residents' conduct was privileged under Civil Code section 47, subdivision (b). In reliance on Kimmel, the appellate court reversed because, among other reasons, it found the residents' conduct was primarily noncommunicative. (Rubin v. Green, supra, 4 Cal.4th at pp. 1191-1192, 17 Cal.Rptr.2d 828, 847 P.2d 1044.) The Supreme Court, in turn, reversed the appellate court and ordered the action dismissed. It concluded the defendants' alleged misrepresentations, whether or not they amounted to wrongful solicitation, "were communicative in their essential nature and therefore within the privilege of section 47(b)." (Id. at p. 1196, 17 Cal.Rptr.2d 828, 847 P.2d 1044.) And as we will discuss more fully below, the court also held the owner was not entitled to injunctive relief under the unfair competition statute for what was essentially the same conduct. (Id, at p. 1203, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)
Likewise, in Ludwig v. Superior Court, supra, 37 Cal.App.4th 8, 43 Cal.Rptr.2d 350, also an action for unfair business practices (see above), the court held the defendant's actions in recruiting and encouraging others to oppose a competing shopping center development, amounted to communicative conduct. "We are at a loss to imagine how Ludwig accomplished the recruiting and encouragement without communication." (Id. at p. 20, 43 Cal.Rptr.2d 350.) It found the city's reliance on Kimmel for the contrary proposition "remarkably inapposite." (Id. at p. 18, 43 Cal.Rptr.2d 350.)
Kashian's second argument against application of the litigation privilege is based on Carney v. Rotkin, Schmerin & McIntyre, supra, 206 Cal.App.3d 1513, 254 Cal.Rptr. 478. In that case the defendant law firm was hired to collect a money judgment obtained by its client against Ms. Carney. Carney, an elderly widow, was unable to find transportation and so failed to appear at a court-ordered judgment-creditor examination. When she called to explain, the firm told her, falsely, that a bench warrant had been issued and would not be recalled unless she paid $1,000 toward her debt. Since she was unable to pay, Carney stayed in her apartment for several days expecting to be arrested. Once she discovered there was no warrant, she sued the law firm for negligent and intentional infliction of emotional distress, abuse of process, and unfair debt collection practices. The law firm demurred on the ground, among others, that its statements to Carney were absolutely privileged under Civil Code section 47, subdivision (2) (now subd. (b)). The trial court sustained the demurrer without leave to amend, and dismissed the action. Carney appealed.
The appellate court reversed. It concluded the privilege did not apply because the third prong of the four-prong test (see above) was lacking, i.e., the law firm's statements to Carney had not been made "`to serve the purpose of litigation'" because they were not only false but also arguably a violation of section 6128 of the Business and Professions Code. (Carney, supra, 206 Cal.App.3d at p. 1522, 254 Cal.Rptr. 478.) Kashian maintains the same is true here with respect to Harriman's statements made in connection with his environmental litigation (in that he claims they violated the same statute). However, the Supreme Court's subsequent decision in Silberg v. Anderson, supra, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365 has raised a question about the continuing validity of Carney.
In reaching its conclusion, the Carney court relied on Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 136 Cal.Rptr. 321, in which the court held a threatening and misleading letter sent by a law firm to its client's creditor, in violation of the rules of professional conduct, was not privileged because it did not serve the purpose of litigation. (Id. at pp. 896-897, 136 Cal.Rptr. 321.) Silberg expressly disapproved Kinnamon and several other cases insofar as they utilized an "interest of justice" requirement, "either linguistically or substantively," as a condition for application of the litigation privilege. (Silberg, supra, 50 Cal.3d at pp. 217, 219, 266 Cal.Rptr. 638, 786 P.2d 365.)
The court went on to explain the "interest of justice" test "is wholly inconsistent with the numerous cases in which fraudulent communications or perjured testimony have nevertheless been held privileged." (Silberg, supra, 50 Cal.3d at p. 218, 266 Cal.Rptr. 638, 786 P.2d 365.) It continued:
The court recognized that strict application of the privilege to disallow derivative tort actions necessarily means some injuries will go uncompensated. But it said "[t]he salutary policy reasons for an absolute privilege supercede individual litigants' interests in recovering damages for injurious publications made during the course of judicial proceedings." (Silberg, supra, 50 Cal.3d at p. 218, 266 Cal.Rptr. 638, 786 P.2d 365.) The court also noted that, in many of the decisions purporting to apply the "interest of justice" test, the court could have reached the same result (i.e., no privilege) based on the absence of one of the privilege's traditionally recognized elements. (Id. at pp. 217-218, 266 Cal.Rptr. 638, 786 P.2d 365.) In addition, the court observed that remedies other than a derivative tort action will often exist, including, most notably, criminal prosecution under Business and Professions
Referring back then to the four traditional elements required for application of the litigation privilege, the court effectively conflated the third and fourth. It said:
The Silberg court overruled Kinnamon even though Kinnamon never specifically mentioned the "interest of justice" test. Thus, the court evidently concluded Kinnamon had applied the test sub silentio by taking account of the defendant's arguably unethical conduct to deny application of the litigation privilege. Carney, in turn, in reliance on Kinnamon, concluded the privilege did not apply because the defendant's conduct was not only unethical, but possibly a criminal violation of Business and Professions Code section 6128. (Carney, supra, 206 Cal.App.3d at p. 1522, 254 Cal.Rptr. 478.) This is the same statute Kashian contends Harriman violated. It is also one of the alternative remedies the court mentioned in Silberg in lieu of a derivative tort action barred by the litigation privilege. There would, of course, be no need to separately pursue this remedy if conduct violating the statute were, by definition, outside the litigation privilege.
We conclude from all this that communications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal. This is assuming, of course, that the communications are "logically related" to the litigation. The communications in this case were not only related to the litigation, they were the litigation, or more accurately the pleadings in the litigation.
Cases applying the Silberg "logical relation" test do not lead us to a different result. In Rothman v. Jackson, supra, 49 Cal.App.4th 1134, 57 Cal.Rptr.2d 284, for example, the court held the litigation privilege does not extend to "litigating in the press." (Id. at p. 1149, 57 Cal.Rptr.2d 284.) It noted Silberg's dictum that "`republications to nonparticipants in the action are generally not privileged under section [47, subd. (b) ].'" (Id. at p. 1143, 57 Cal.Rptr.2d 284; see also Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 93-94, 3 Cal.Rptr.2d 27 [applying the rule to reach the same result].) The court in Rothman also restated the "logical relation" test this way:
And as for furthering "the objects of the litigation," the court said Silberg's test "can be satisfied only by communications which function intrinsically, and apart from any consideration of the speaker's intent, to advance a litigant's case." (Rothman, supra, 49 Cal.App.4th at p. 1148, 57 Cal.Rptr.2d 284.) Notably, it then added: "A party's pleadings obviously satisfy this test." (Ibid.)
Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 81 Cal.Rptr.2d 392 involved a prelitigation demand letter sent by one company (Proton) to another (Excelsior), accusing the latter of unfair competition for raiding Proton's employees. In addition, it accused Nguyen, a former Proton sales representative then working for Excelsior, of soliciting Proton's customers to switch their business to Excelsior. The letter went on: "`We think you should be aware ...'" that Nguyen had been in prison "`for repeatedly and violently assaulting his wife.'" (Id. at pp. 143-144, 81 Cal.Rptr.2d 392.) (In fact, Nguyen had been in county jail for shooting at an unoccupied vehicle, and vandalism.) Nguyen sued Proton for defamation and other related causes of action. The trial court granted Proton's motion for summary judgment on the ground Proton's statements were absolutely protected by the litigation privilege. Nguyen appealed, and the appellate court reversed.
The court concluded Silberg had significantly limited what was becoming a fairly expansive view of the "logical relation" test, and thereby brought the test more into line with several earlier decisions, including notably Carney and Kinnamon (cases disapproved expressly or inferentially by Silberg on other grounds as noted above). "We think these cases, and several others discussed earlier, establish an important point for both litigants and attorneys concerning prelitigation demands and the like. That point is that section 47(b) does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals." (Nguyen, supra, 69 Cal. App.4th at p. 150, 81 Cal.Rptr.2d 392.) Accordingly, the court said: "We have no difficulty in holding that the inclusion in [Proton's] demand letter to Excelsior of references to [Nguyen's] criminal record falls outside of the section 47(b) privilege." (Id. at p. 151, 81 Cal.Rptr.2d 392.) This was so, it explained, partly because the information was incorrect, but more importantly because any connection between Nguyen's criminal record and Excelsior's alleged acts of unfair competition was "to be charitable about it, tenuous." (Ibid.)
While we question Nguyen's reliance on Carney and Kinnamon, we do not quarrel with its conclusion. The decision fails, in any event, to support Kashian's contention that communicative conduct (alleged to be) in violation of Business and Professions Code section 6128 is outside the privilege because it does not further the object of litigation.
As explained above, Rubin was a suit for damages by the owner of a mobilehome park (Cedar Village) against a resident (Green) and her attorney, alleging they were unlawfully soliciting other residents to join an anticipated action against the owner for failing to maintain the park. When the residents later filed their failure-to-maintain action, the owner amended his suit to add an unfair competition claim under Business and Professions Code section 17200 et seq., seeking to enjoin the residents' alleged acts of harassment. The residents demurred to the amended complaint on the ground their conduct was privileged under Civil Code section 47, subdivision (b). The trial court sustained the demurrer and dismissed the owner's suit. The court of appeal reversed. The Supreme Court reversed the appellate court, holding the privilege applied to the tort causes of action for damages based on the defendants' alleged unlawful solicitation.
The court then considered whether the owner, notwithstanding the privilege, was entitled to pursue injunctive relief in light of the fact that Business and Professions Code section 17204 grants any member of the public standing to seek such relief against unfair competition. After concluding, in effect, that the defendants' conduct fell within the broad definition of unfair competition, the court sought to resolve the "evident conflict [between] the policy of permitting members of the public to police the spectrum of `unfair competition' [and] the policy embodied in section 47(b) ... of insuring litigants open access to the courts." (Rubin, supra, 4 Cal.4th at p. 1201, 17 Cal.Rptr.2d 828, 847 P.2d 1044.) The court cited several decisions in other contexts that had "rejected the claim that a plaintiff may, in effect, `plead around' absolute barriers to relief by relabeling the nature of the action as one brought under the unfair competition statute." (Ibid.) It then concluded:
The court's conclusion seems to lead to the anomalous result where the litigation privilege extends to an unfair competition claim against an attorney only when the claim is founded on the attorney's misconduct in earlier litigation against the plaintiff, at least if the privilege would also apply to bar a derivative tort action based on the same conduct. Or, as Justice Baxter observed in his dissent in Rubin: "Put in plain language, the result is that every member of the public—except for one, the victim—can seek injunctive relief against
Here, Kashian was not a party to any of the environmental litigation that underlies his unfair competition claim against Harriman. Nor is the environmental litigation the subject of his two other causes of action for defamation. Thus, it appears Kashian is simply a member of the public for purposes of the first cause of action, which therefore is not foreclosed by the litigation privilege under Rubin. We must determine then whether Kashian has presented sufficient facts to establish a probability he would prevail if that cause of action were to go to trial.
Kashian alleged in his complaint that Harriman had a "pattern and practice" of filing groundless environmental lawsuits on behalf of one or both of two organizations—the Golden State Wildlife Federation and Valley Advocates—which he represented were separate entities with different members, when in fact they were the same "sham" corporation he had created to give the appearance the suits enjoyed more support than was actually the case. Harriman's purpose, according to Kashian, was to induce the defendants to settle the suit for nuisance value, which settlement Harriman would often then keep for himself.
In support of these allegations (i.e., in opposition to Harriman's SLAPP motion), Kashian requested the court take judicial notice of the pleadings filed by Harriman in 10 different suits between 1992 and 1999, as well as documents from the Secretary of State relating to a corporation known at different times as the Golden State Wildlife Federation and Valley Advocates. In addition, he submitted the declarations of three people (Jerry Cook, Lydia Miller, and Patty Simpson) who had been involved in one way or another with one or more of the lawsuits.
The records from the Secretary of State indicate the California Natural Resources Federation was incorporated as a nonprofit public benefit corporation in 1988; that it changed its name in 1991 to the Golden State Wildlife Federation; and that it changed its name again in 1997 to Valley Advocates. That is, the three groups were the same corporation by different names, and thus no two of them coexisted contemporaneously as the corporation.
The statutory limitations period for an unfair competition claim is four years after the cause of action accrued. (Bus. & Prof. Code, § 17208.) Eight of the 10 lawsuits on which Kashian's claim is based were filed more than four years prior to the date Kashian filed the present complaint on June 19, 2000. Moreover, the Cook, Miller, and Simpson declarations all concerned events that took place in 1992 or before. Therefore, Kashian's first cause of action is time-barred insofar as it relies on this evidence.
In the two remaining suits, filed in 1998 and 1999, Harriman appeared on behalf of Valley Advocates (and also on behalf of the Franklin Tract Landowners Association in
In sum, assuming for present purposes that the allegations in Kashian's complaint, if true, were sufficient to make out a prima facie case of unfair competition, the evidence he submitted in their support does not bear them out. Consequently, he has failed to meet his burden under the anti-SLAPP statute to establish a probability of prevailing on the first cause of action.
Second Cause of Action (Defamation)
Both Kashian's second and third causes of action for defamation are based on the letter Harriman wrote to the Attorney General on May 22, 2000. The second cause of action concerns delivery of the letter to the Attorney General's office; the third concerns its delivery to the Fresno Bee. We do not consider whether the letter was defamatory, or whether Kashian is a "public figure" for purposes of defamation law, but turn instead to the question of whether the delivery in either or both cases was privileged.
As noted above, Kashian argues Harriman's delivery of the letter to the Attorney General's office was subject only to the "conditional litigation privilege," by which we understand him to mean the qualified "common interest" privilege in Civil Code section 47, subdivision (c). He relies on Fenelon v. Superior Court, supra, 223 Cal.App.3d 1476, 273 Cal.Rptr. 367, in which the court held the defendant's filing of a knowingly false police report accusing the plaintiff of a crime was subject only to the qualified common interest privilege rather than the absolute litigation privilege. The court reasoned an investigation of the sort that would be prompted by a police report is not an "official proceeding" within the meaning of Civil Code section 47, subdivision (b)(3) because it lacks the characteristics of a judicial inquiry. (Fenelon, supra, 223 Cal.App.3d at pp. 1480-1481, 273 Cal.Rptr. 367.) In reaching this result, the court disagreed with Williams v. Taylor, supra, 129 Cal.App.3d 745, 181 Cal.Rptr. 423, where the court said:
The majority, if not all, of the cases that have addressed this issue since Fenelon have concluded Williams represents the better view. (See, e.g., Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 494-96, 100 Cal.Rptr.2d 905; Devis v. Bank of America (1998) 65 Cal.App.4th 1002, 1007-1008, 77 Cal.Rptr.2d 238; Passman v. Torkan (1995) 34 Cal.App.4th 607, 616-619, 40 Cal.Rptr.2d 291; Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1502-1504, 28 Cal.Rptr.2d 722.) We agree.
The circumstances in Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th 777, 54 Cal.Rptr.2d 830 were similar in many respects to those here. Dove Audio produced a recording featuring the voices of several celebrities, whose royalties were to be paid to their designated charities. When few royalty payments were actually made, the son of one of the celebrities (who had died in the interim) contacted the law firm of Rosenfeld, Meyer & Susman (RM & S) to request that it look into the matter and contact the appropriate government agency to conduct an investigation. RM & S wrote to the other celebrities explaining the situation and soliciting their support for a complaint it intended to file with the Attorney General's office. Dove Audio sued RM & S and others, alleging the letter was defamatory and interfered with their economic relationships with other celebrities. RM & S demurred to the complaint on the ground both causes of action were absolutely privileged under Civil Code section 47, subdivision (b). It also filed a SLAPP motion. The court sustained the demurrer without leave to amend, granted the motion, and dismissed the case. Dove Audio appealed.
The appellate court held the privilege extends to communications between private parties preliminary to the institution of an official proceeding. (Dove Audio, supra, 47 Cal.App.4th at pp. 781, 783, 54 Cal.Rptr.2d 830.) And it rejected an argument similar to the one adopted in Fenelon that neither a petition to nor an investigation by the Attorney General constitutes an "official proceeding" within the meaning of Civil Code section 47, subdivision (b). (47 Cal.App.4th at p. 782, 54 Cal.Rptr.2d 830.) In this latter connection, the court observed that a communication to the Attorney General would have been privileged in view of the fact the Attorney General has, among other things, the statutory responsibility under Government Code section 12598 to protect the assets of charitable trusts and public benefits corporations (such as are involved here). (47 Cal. App.4th at pp. 782-783, 54 Cal.Rptr.2d 830.)
We conclude on this basis that Harriman's delivery of his letter to the Attorney General was absolutely privileged. Consequently, Kashian could not have prevailed on his second cause of action.
Third Cause of Action (Defamation)
Kashian's third cause of action was based on the following allegations:
Harriman, in his declaration in support of the SLAPP motion, denied publishing his letter to the Fresno Bee. He asserted that "at no time did I provide a copy of the letter, or of its contents, nor did I arrange for the letter to be conveyed, to the Fresno Bee." He did, however, acknowledge sending the letter to his clients and others:
These other two organizations, according to the letter, were St. Agnes and LHCC. In his opposition to the motion, Kashian sought leave to amend the complaint to allege Harriman had published the letter to these two organizations by name. The court denied the motion.
On appeal, Kashian argues neither the litigation privilege nor the common interest privilege attaches to publication of the letter to the Fresno Bee, or to its publication to St. Agnes and LHCC. We address these contentions in turn.
As for the publication of the letter to the Fresno Bee, we do not reach the question of privilege because we agree with the trial court's conclusion Kashian failed to make a sufficient prima facie showing Harriman was the person responsible for sending the letter to the newspaper. Kashian argues:
We disagree with the second part of this proposition. While it may be reasonable to infer the letter was delivered to the Fresno Bee by one of the four people to whom Harriman had sent a copy (not including the Attorney General), it does not follow that this person was acting as Harriman's "agent," or that Harriman knew or intended this result.
Kashian's citation to Copp v. Paxton (1996) 45 Cal.App.4th 829, 52 Cal.Rptr.2d 831 is unavailing. Paxton was a county official whose responsibilities included emergency planning, and Copp was a private citizen who held himself to be an expert in earthquake safety. The two men had an ongoing disagreement about the best way to protect schoolchildren in an earthquake. In the course of his duties, Paxton wrote a staff memorandum and two letters that were critical of Copp, one to a colleague (Eisner) and another to a private citizen (Johnson) who had expressed concerns about a conference Copp was planning. All three documents later made their way somehow to the conference's sponsors. The sponsors withdrew their support, and the conference was cancelled. Copp sued Paxton and others on several grounds, including defamation. The trial court granted Paxton's motion for summary judgment on the basis all the communications were subject to the "executive officer" privilege under Civil Code section 47, subdivision (a) (protecting publications made "[i]n the proper discharge of an official duty"). Copp appealed.
The circumstances in Copp giving rise to the inference Paxton was responsible for republishing the staff memorandum differ from those in the present case in two important respects. In Copp, Paxton was the only person in possession of all three of the documents that were turned over to the conference sponsors, and so was their likely source. Further, since Johnson had expressed concerns about the conference, Paxton knew or should have known he would probably pass on whatever documents Paxton sent him. In this case by contrast, Harriman was only one of at least five people who had a copy of the letter. And there is no reason suggested by the evidence for Harriman to believe one of the others to whom he sent the letter would forward it to the newspaper.
We turn finally to Harriman's publication of the letter to St. Agnes and LHCC. As we have explained above, communications made between private parties preparatory to or in connection with an "official proceeding" are absolutely privileged under Civil Code section 47, subdivision (b)(3). (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal. App.4th at p. 781, 54 Cal.Rptr.2d 830.) Moreover, an "official proceeding" includes a complaint to or a resulting investigation by the Attorney General. (Id. at pp. 782-783, 54 Cal.Rptr.2d 830.) In this case, St. Agnes and LHCC both were parties to the request to the Attorney General for an investigation into Community's tax-exempt status. It follows that their communications with one another in that connection were protected by the litigation privilege.
Kashian maintains the same privilege does not extend to their communications in regard to Harriman's request for an investigation into Kashian's alleged conflict of interest, a request in which neither St. Agnes nor LHCC had joined (at least at that time). But we need not decide this point because we conclude the common interest privilege applies. It is apparent from the letter itself that the two subjects (Community's business practices and Kashian's potential conflict) were sufficiently interrelated that the parties to the two requests shared a common business or professional interest in them. We, like the trial court, believe this is enough in any event to shift the burden to Kashian to show Harriman's delivery of the letter to St. Agnes and LHCC was prompted by
Kashian argues simply that he "presented evidence that, if believed, was sufficient to support a finding of actual malice, which would prevent the defense of a conditional privilege from arising." But he neglects to identify just what this evidence is. Instead, he relies again on a series of speculative inferences. On the premise Harriman's statements about him in the letter are both defamatory and demonstrably false, Kashian contends a jury reasonably might infer Harriman acted with malice because he failed to conduct an adequate investigation before making the statements; because he reaffirmed (in his SLAPP motion) his belief the statements were true even after Kashian (in his complaint) denied them; and because Harriman was untruthful in regard to other (unspecified) matters.
Malice may be established by showing the publisher of a defamatory statement lacked reasonable grounds to believe the statement was true, and therefore acted with a reckless disregard for the rights of the person defamed. (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 997, 225 Cal.Rptr. 852.) However, negligence is not malice. (Cabanas v. Gloodt Associates (E.D.Cal.1996) 942 F.Supp. 1295, 1301.)
Statements that are otherwise privileged nonetheless may be used in some circumstances to prove the speaker's state of mind. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168, 232 Cal.Rptr. 567, 728 P.2d 1202.)
Kashian's bare assertion that many of the statements in Harriman's letter are false does not make it so, much less establish that Harriman made the statements maliciously. For example, Harriman urged the Attorney General to investigate certain of Kashian's business dealings with Community Hospital, as follows:
In his declaration in opposition to Harriman's SLAPP motion, Kashian responded in part:
The Fresno Bee article that appeared on June 1, 2000, simply reported that "[t]he property purchased by Community [for the heart hospital] was not owned by Kashian."
This evidence tends to show at most that Harriman's letter was inaccurate insofar as it suggested Kashian may have had a direct financial interest in Community's purchase of land for a heart hospital. On the other hand, it appears to substantiate the suggestion that Kashian had previously "acquired, developed, owned, and/or sold" the land through one or another of the business entities with which he was involved. We do not believe in any case the evidence is sufficient to support an inference Harriman acted with "a reckless or wanton disregard for the truth" when he wrote the letter. (Roemer v. Retail Credit Co., supra, 3 Cal.App.3d at p. 372, 83 Cal.Rptr. 540.) Consequently, Kashian has failed to meet his burden of establishing a probability he would prevail at trial on the third cause of action.
Costs and Attorney Fees
The trial court awarded Harriman his costs and attorney fees pursuant to section 425.16, subdivision (c), which provides in part: "In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." Since we will affirm the court's order granting Harriman's SLAPP motion, it follows we must also affirm the fee award.
The judgment is affirmed. Costs are awarded to respondents.
WE CONCUR: VARTABEDIAN, Acting P.J., and WISEMAN, J.
This argument begins by misstating what happened in Kajima. In fact, as we have just explained, the court actually held the causes of action in the city's cross-complaint did not arise from acts taken by Kajima in furtherance of its First Amendment rights. The court did not hold, contrary to what the rest of the argument would suggest, that (allegedly) unethical or illegal acts are not a "valid" exercise of these rights for purposes of applying the anti-SLAPP statute. We discuss this argument below in connection with Kashian's citation to Paul for Council v. Hanyecz, supra, 85 Cal.App.4th 1356, 102 Cal.Rptr.2d 864.
Kashian makes a similar sort of argument with respect to the litigation privilege, i.e., that it does not protect allegedly illegal or unethical conduct. We likewise consider this argument below in connection with Kashian's citation to Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal.App.3d 1513, 254 Cal.Rptr. 478.
Kashian's point appears again to be that section 425.16 applies only to the valid exercise of one's First Amendment rights. But in Lam, as in Paul for Council, there was no question the acts underlying the SLAPP motion were illegal. The same is not true here.
The defendants demurred to the complaint on the ground Anderson's statements to the husband were absolutely privileged under Civil Code section 47, subdivision (2) (now subdivision (b)). The trial court sustained the demurrer as to all causes of action without leave to amend, and dismissed the action. The appellate court affirmed the judgment of dismissal except as to the cause of action for "intentional tort." It concluded Anderson's representations were not privileged "if they were made to achieve personal objectives or to gain an advantage for her client through artifice or deceit, reasoning in that case they could not have been made to promote the `interest of justice.'" (Silberg, supra, 50 Cal.3d [at] 211, [266 Cal.Rptr. 638, 786 P.2d 365].) It therefore remanded the matter to the trial court to permit the husband to amend the cause of action to allege Adler had acted with an "`improper objective.'" (Ibid.) The Supreme Court granted review to determine whether the litigation privilege is subject to an "interest of justice" exception. (Ibid.)
Conversely, Kashian is correct that he had no responsibility to prove the allegedly defamatory statements were not made on a privileged occasion. That is, the trial court concluded the statements were subject to the common interest privilege in part because: "Plaintiff [Kashian] has failed to show that the communication to the third party [St. Agnes and LHCC] was not privileged. There is no evidence to show that there was no common interest." However, although we disagree with this part of the court's rationale, we conclude for reasons we explain below that its result was correct.