Agencies Seek To Silence Child Protection Group
May 7, 2008
North County Gazette
"Danielle Grijalva of Oceanside, CA, director of the Committee for
Safety of Foreign Exchange Students (CSFES), will be in court in
North Carolina on May 15 facing student placement agencies, which
have obtained a restraining order to thwart her efforts. At issue is
whether a child protection advocate should be restrained from
reporting incidences of abuse of foreign exchange students..."
May 7, 2008
North County Gazette
"Danielle Grijalva of Oceanside, CA, director of the Committee for
Safety of Foreign Exchange Students (CSFES), will be in court in
North Carolina on May 15 facing student placement agencies, which
have obtained a restraining order to thwart her efforts. At issue is
whether a child protection advocate should be restrained from
reporting incidences of abuse of foreign exchange students..."
Danielle Grijalva of Oceanside works to protect
foreign exchange students
Exchange programs are trying to silence her.
foreign exchange students
Exchange programs are trying to silence her.
DANIELLE GRIJALVA VS. HELGA
BRANDT
37-2008-00052285-CU-DF-NC Case
Location: North County
Date Filed: 03/11/2008
Category: CU-DFM
Defamation
Plaintiff/Petitioner
GRIJALVA DANIELLE
CSFES
Defendant/Respondent
BRANDT HELGA
ASSE INTERNATIONAL, INC
MOTYCKA JOSEF
BRANDT
37-2008-00052285-CU-DF-NC Case
Location: North County
Date Filed: 03/11/2008
Category: CU-DFM
Defamation
Plaintiff/Petitioner
GRIJALVA DANIELLE
CSFES
Defendant/Respondent
BRANDT HELGA
ASSE INTERNATIONAL, INC
MOTYCKA JOSEF
PROGRAMMES INTERNATIONAUX
D'ECHANGES VS. GRIJALVA
37-2007-00056679-CU-PT-NC North
County
Date Filed: 09/26/2007
Category:CU-PTO
Petitions-Other
Plaintiff/Petitioner
PROGRAMMES
INTERNATIONAUX D'ECHANGES
Defendant/Respondent
BEDDICK
VERONICA
GRIJALVA DANIELLE
D'ECHANGES VS. GRIJALVA
37-2007-00056679-CU-PT-NC North
County
Date Filed: 09/26/2007
Category:CU-PTO
Petitions-Other
Plaintiff/Petitioner
PROGRAMMES
INTERNATIONAUX D'ECHANGES
Defendant/Respondent
BEDDICK
VERONICA
GRIJALVA DANIELLE
San Diego Superior
Court
Court
Danielle Grijalva wins in Court of Appeal
Grijalva v. Brandt
Filed 7/20/09 Grijalva v. Brandt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DANIELLE GRIJALVA et al.,
Plaintiffs and Appellants,
v.
HELGA BRANDT et al.,
Defendants and Respondents.
D053856
(Super. Ct. No. 37-2008-00052285-CU-DF-NC)
APPEAL from an order of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Reversed.
I. INTRODUCTION
In March 2008, Grijalva and CSFES[1]filed this action against ASSE
International, Inc. (ASSE), Helga Brandt, and Josef Motycka.
According to plaintiffs' amended complaint, Grijalva founded
CSFES, a Web site and agency that advocates for the safety and
welfare of foreign exchange students visiting the United States.
Plaintiffs alleged that ASSE is a student exchange agency that had failed
to secured proper residential and education placements for students in its
program. Plaintiffs further alleged that the defendants had made a series
of false statements regarding Grijalva. Plaintiffs brought claims for
defamation and unfair business practices against defendants.
ASSE and Brandt filed a joint special motion to strike plaintiffs' amended
complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., 425.16).[2]
In order to prevail on an anti-SLAPP motion, a defendant must
demonstrate that the plaintiff's claims arise 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).) The statute provides that
any written or oral statement or writing made by the defendant in a judicial
proceeding or made by the defendant in connection with an issue under
consideration or review by a judicial body constitutes such an act. (
425.16, subd. (e)(1) and (2).)
In their anti-SLAPP motion, ASSE and Brandt claimed that plaintiffs' action
was within the scope of the anti-SLAPP statute because it "appear[ed]" to
relate to ASSE's participation in a separate judicial proceeding in North
Carolina. After plaintiffs failed to file a timely opposition to the anti-SLAPP
motion, the trial court granted the motion. In its order, the trial court
concluded that ASSE and Brandt had demonstrated that "at least part of
the first and second causes of action arise out of statements made by
[ASSE] in the complaint-in-intervention in the North Carolina case."
On appeal, plaintiffs claim that the trial court erred in granting the
anti-SLAPP motion. Plaintiffs contend that the trial court erred in
concluding that ASSE and Brandt had satisfied their threshold burden of
demonstrating that plaintiffs' claims arose from ASSE and Brandt's
participation in the North Carolina proceeding.[3] We agree, and reverse
the trial court's order granting the anti-SLAPP motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2008, plaintiffs filed a complaint against ASSE, Brandt, and
Motycka. In their complaint, plaintiffs alleged:
"Defendant [ASSE] has brought students to the United States without
having secured proper placements for homes and schools for the
students. As a result[,] problems have emerged and individuals have
utilized the CSFES website in an effort to address the problems
encountered by students experiencing extended stays in what were
supposed to be temporary homes, problems with enrollment, problems
resulting from improper hasty placements and problems . . . with improper
placement homes."
Plaintiffs further alleged that "CSFES and . . . Grijalva seek to empower
students, parents, and workers who are concerned about the students'
welfare and who share the goal of having the agencies live up to their
responsibilities regarding the safety and welfare of the students."
The only allegations in the complaint regarding specific wrongful actions
allegedly taken by the defendants were the following:
"Defendant ASSE in response to the attention generated on [sic] the
problems it created, set out to malign CSFES and . . . Grijalva with an
intentional and false campaign directed to the parents of the students and
to citizens with concerns regarding the problems caused by . . . ASSE's
misconduct.
"Defendants falsely accused [Grijalva] of the following:
"a. conducting her website and agency with a 'commercial purpose'
"b. 'manipulating facts'
"c. 'not portraying a clear picture'
"d. 'isn't interested in the welfare of the students'
"e. 'threatening' to send information on exchange agencies but 'if got [sic]
a contribution doesn't send anything,'
"f. 'represent[ing] herself as a federal agent,'
"g. 'performs background checks,'
"h. [b]eing a 'liar,'
"i. [m]aking 'false statements'[.]"
In a defamation cause of action, plaintiffs alleged, "Defendants made the
foregoing statements with the intent to convey false and defamatory
meanings of and concerning . . . Grijalva and CSFES." Plaintiffs also
brought an unfair business practices claim against defendants in which
they incorporated all of the other allegations of the complaint and alleged
that this "conduct of the defendants and each of them involve practices
that were dishonest, deceptive, in disregard of the rights of the students
and in disregard of the agency's obligations under the contract by which
the students and their families entered the program."
On the same day that plaintiffs filed their complaint, they filed a notice of
related case. In their notice, plaintiffs stated:
"Programmes Internationaux D'Exchanges [(PIE)] sued [Veronica Beddick
and Grijalva] in North Carolina for defamation and interference for
discussing problems related to foreign exchange students who were
brought to the [United States] without proper placement in home and
schools. [PIE] recruits students in France. ASSE is responsible for
placements and supervision in the [United States]. Beddick was an
employee of ASSE. Grijalva runs a website, CSFES, devoted to the welfare
and safety of foreign exchange students. The enmity of ASSE against
Grijalva, and the motivation behind the defendants['] effort to smear
Grijalva can be traced back to her activities in helping bring ASSE caused
problems to light."
On March 24, the plaintiffs filed an amended complaint that was identical in
all material respects to their original complaint.[4]
On April 24, ASSE and Brandt filed an anti-SLAPP motion. In their motion,
ASSE and Brandt claimed that plaintiffs' action arose from ASSE's
participation in a separate judicial proceeding involving Grijalva. ASSE and
Brandt explained that in September 2007, PIE sued Grijalva in North
Carolina, alleging that she had wrongfully disseminated false and
misleading information regarding PIE. In December 2007, PIE obtained a
preliminary injunction in the North Carolina action enjoining Grijalva from
having contact with students in PIE's programs and preventing Grijalva
from disseminating false or misleading information regarding PIE.
ASSE and Brandt further stated that in February 2008, ASSE moved to
intervene in the North Carolina action and sought a preliminary injunction
against Grijalva to preclude her from contacting various persons
sponsored by ASSE, and to prevent her from disseminating false or
misleading information to those persons. ASSE and Brandt argued:
"A mere one month after ASSE moved to intervene, Plaintiffs filed this
meritless suit seeking unsubstantiated damages and alleging that at some
unspecified time, at an unspecified location and to unspecified persons,
Defendants made 'statements' which Plaintiffs allege are defamatory and
constitute unfair business practices. . . .
"This lawsuit is just a continuation of Plaintiffs' crusade to harass
Defendants . . . . Plaintiffs seek to punish Defendants for ASSE's
participation in the judicial proceedings in North Carolina and thereby chill
Defendants' right of petition. The SLAPP character of Plaintiffs' action is
not only clear from the obvious insufficiency of the causes of action, but
also from the 'convenient' timing of plaintiffs' lawsuit . . . .
"Because plaintiffs have not sufficiently alleged Defendants' allegedly
'defamatory statements' in the instant action, the exact origin of and
circumstances surrounding the alleged statements are currently unknown.
However, the allegedly defamatory statements appear to directly relate to
ASSE's participation in the North Carolina action. For example, Plaintiffs'
First Amended Complaint alleges Defendants' defamatory publications
included statements that Plaintiffs were 'making false statements.'
[Citation.] This allegation appears to directly relate to ASSE's statements
in the proposed Complaint ASSE submitted to the North Carolina court . . .
that Grijalva had disseminated 'false and misleading information.'
[Citation.]" (Formatting omitted.)
ASSE and Brandt also argued that plaintiffs could not establish a
probability of prevailing on either of their two causes of action.
ASSE and Brandt requested that the court take judicial notice of various
documents from the North Carolina action, including PIE's complaint and
motion for a preliminary injunction, the preliminary injunction entered in
favor of PIE, ASSE's motion to intervene, ASSE's motion for a preliminary
injunction, and the affidavits of two ASSE employees filed by ASSE in
support of its motion for a preliminary injunction.
Also on or about April 24, ASSE and Brandt filed a demurrer to plaintiffs'
amended complaint.[5] In their demurrer, ASSE and Brandt claimed that
plaintiffs' defamation and unfair business practices claims failed as matter
of law because they were based on communications related to the North
Carolina action. ASSE and Brandt also claimed that each of plaintiffs'
claims failed to adequately state facts sufficient to state a cause of action
and that the claims were vague and legally uncertain.
On July 16, ASSE and Brandt filed and served notices in which they stated
that they had not received an opposition to either their anti-SLAPP motion
or their demurrer.
On July 21, Grijalva's attorney filed an ex-parte application requesting that
the trial court accept a late filed opposition to ASSE and Brandt's
anti-SLAPP motion, or, in the alternative, that the court continue the
hearing on defendants' anti-SLAPP motion. In the application, Grijalva's
attorney also requested leave to file a second amended complaint in
response to the pending demurrer. Grijalva's attorney filed the late
opposition to defendants' anti-SLAPP motion and an accompanying
declaration from Grijalva, as well as a second amended complaint, with the
application. Grijalva's attorney also filed a declaration in which he stated
that his failure to timely file the opposition "was due to personal difficulties I
encountered and was not the fault of the client."
On July 22, ASSE and Brandt filed an opposition to the ex parte
application. ASSE and Brandt noted that, while ordinarily an anti-SLAPP
motion must be heard by the trial court within 30 days of the filing of the
motion ( 425.16, subd. (f)), in this case, plaintiffs had already had more
than three months to file an opposition, due to the condition of the trial
court's docket. ASSE and Brandt also argued that plaintiffs had not
demonstrated sufficient grounds for relief from their failure to timely file an
opposition. ASSE and Brandt supported their opposition with a declaration
from one of their attorneys.
On July 24, the trial court denied Grijalva's application to file the late
opposition to the anti-SLAPP motion. The court noted that the hearing on
the anti-SLAPP motion was scheduled for the following day, and that to
allow the filing of the opposition would be unfair to ASSE and Brandt since
they would not have sufficient time to file a reply. The court also stated
that it could not continue the hearing because the court was obligated to
hear the motion within 30 days of the filing unless its docket would not
permit consideration of the motion within that time period.[6] The trial court
also denied Grijalva's attempt to file a second amended complaint, noting
that such action could not properly be accomplished by way of an ex parte
application, absent a stipulation.
The following day, the trial court confirmed its tentative ruling granting
ASSE and Brandt's anti-SLAPP motion. The court concluded that ASSE
and Brandt had demonstrated that the actionable conduct pled in the
amended complaint arose out of "statement[s]. . . made before . . . [a]
judicial proceeding," and "in connection with an issue under consideration
or review by . . . [a] judicial body," quoting section 425.16, subdivision
(e)(1) and (2). The court reasoned:
"Defendants have sufficiently shown that . . . at least part of the first and
second causes of action arise out of statements made by Defendants in
the complaint-in-intervention in the North Carolina case. The Court also
concludes [that] the protected statements are not 'merely incident[al]' to
the potentially unprotected statements alleged in the first amended
complaint. Thus, Defendants have met their initial burden on this motion."
The trial court also noted that in light of ASSE and Brandt having met their
burden to demonstrate that the plaintiffs' claims were within the scope of
section 425.16, subdivision (e)(1) and (2), the plaintiffs were required to
demonstrate a probability of prevailing on their claims. The court
concluded that plaintiffs failed to carry this burden, since they had not
submitted an opposition to the anti-SLAPP motion. The court granted the
anti-SLAPP motion, and stated that ASSE and Brandt's demurrer was moot
in light of the court's ruling on the anti-SLAPP motion.
The trial court entered a formal order granting ASSE and Brandt's
anti-SLAPP motion on August 8. Grijalva timely appeals from that order.[7]
III. DISCUSSION
The trial court erred in granting ASSE and Brandt's anti-SLAPP
motion
Plaintiffs claim that the trial court erred in granting ASSE and Brandt's
anti-SLAPP motion. Specifically, plaintiffs claim that the trial court erred in
determining that ASSE and Brandt had carried their burden of
demonstrating that plaintiffs' claims arose from ASSE and Brandt's
participation in the North Carolina proceeding and that the claims were
therefore within the scope of section 425.16, subdivision (e)(1) and (2).
We review de novo the trial court's determination that the plaintiffs' claims
arose from ASSE and Brandt's protected activity. (Tutor-Saliba Corp. v.
Herrera (2006) 136 Cal.App.4th 604 (Tutor Saliba Corp.).)
A. Governing Law
1. General principles of law governing anti-SLAPP motions
Section 425.16, provides in relevant part:
"(a) The Legislature finds and declares that there has been 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. The Legislature finds and declares that it is in the public
interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through
abuse of the judicial process. To this end, this section shall be construed
broadly.
"(b)(1) A cause of action against a person arising from any act of that
person in furtherance of the person's right of petition or free speech under
the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.
"(2) In making its determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.
"[] . . . []
"(e) As used in this section, 'act in furtherance of a person's right of
petition or free speech under the United States or California Constitution in
connection with a public issue' includes: (1) any written or oral statement
or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law; (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection with an
issue of public interest; (4) or 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."[8]
In Tutor-Saliba Corp., supra, 136 Cal.App.4th at page 609, the court
outlined the burdens of proof applicable to an anti-SLAPP motion:
" 'Under the statute, the court makes a two-step determination: "First, the
court decides whether the defendant has made a threshold showing that
the challenged cause of action is one arising from protected activity.
[Citation.] 'A defendant meets this burden by demonstrating that the act
underlying the plaintiff's cause fits one of the categories spelled out in
section 425.16, subdivision (e)' [Citation.] If the court finds that such a
showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim. [Citation.]"
[Citations.] "Only a cause of action that satisfies both prongs of the
anti-SLAPP statute - i.e., that arises from protected speech or petitioning
and lacks even minimal merit - is a SLAPP, subject to being stricken under
the statute." [Citation.]' "
"[I]t is the principal thrust or gravamen of the plaintiff's cause of action that
determines whether the anti-SLAPP statute applies [citation], and when the
allegations referring to arguably protected activity are only incidental to a
cause of action based essentially on nonprotected activity, collateral
allusions to protected activity should not subject the cause of action to the
anti-SLAPP statute." (Martinez v. Metabolife Intern., Inc. (2003) 113
Cal.App.4th 181, 188; see also Club Members For An Honest Election v.
Sierra Club (2008) 45 Cal.4th 309, 319 [The " 'principal thrust or
gravamen' " test serves the Legislative intent that section 425.16 be
broadly interpreted].)
2. The "arising from" requirement in section 425.16, subdivision
(b)(1)
In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (Cotati), the
Supreme Court interpreted the requirement in section 425.16, subdivision
(b)(1) that a defendant demonstrate that the plaintiff's action is one
"arising from" protected activity. In Cotati, a group of mobile home park
owners sued a municipality in federal court claiming that the municipality's
rent stabilization ordinance was unconstitutional. (Cotati, supra, 29 Cal.4th
at p. 72.) The municipality subsequently filed a declaratory relief action in
state court seeking a declaration that the ordinance was constitutional.
(Ibid.) The owners filed an anti-SLAPP motion in the state court action
(ibid.), arguing that the municipality's state action was within the scope of
the anti-SLAPP statute because it arose from the owners' action in filing
the federal lawsuit. (Id. at pp. 72-73.) The trial court granted the
anti-SLAPP motion, reasoning that that the municipality had filed its action
shortly after the owners filed the federal action, named only the owners as
defendants, and involved " 'the exact contention' " made by the owners in
the federal action. (Id. at p. 73.)
The Cotati court disagreed with the trial court's conclusion that the state
court action had "aris[en] from" protected activity. (Cotati, supra, 29
Cal.4th at p. 76.) The court began by emphasizing that the timing of the
City's filing did not demonstrate that the action arose from the owners'
filing of the federal action. (Id. at pp. 76-77.) The court stated, "It is
indisputably true, as the trial court observed, that City's action was filed
shortly after Owners filed their claim in federal court. But the mere fact an
action was filed after protected activity took place does not mean it arose
from that activity." (Ibid.) The Cotati court further explained that to interpret
" 'arising from' in section 425.16, subdivision (b)(1) as meaning 'in
response to,' as Owners have urged, would in effect render all
cross-actions potential SLAPP's. . . ." (Id. at p. 77.) The court rejected this
interpretation as both leading to an "absurd result" and being inconsistent
with the statutory scheme governing cross-complaints. (Ibid.)
The Cotati court further held that the "City's subjective intent [in filing the
action] is not relevant under the anti-SLAPP statute." (Cotati, supra, 29
Cal.4th at p. 78.) "[A] claim filed in response to, or in retaliation for,
threatened or actual litigation is not subject to the anti-SLAPP statute
simply because it may be viewed as an oppressive litigation tactic." (Ibid.)
A trial court may not focus on a plaintiffs' "litigation tactics," but rather,
must determine, based "on the substance of [plaintiff's] lawsuit," whether
the defendant has demonstrated that "an alleged SLAPP arise[s] from
protected speech or petitioning." (Id. at p. 78.) The Supreme Court
summarized its holding by stating, "[T]he statutory phrase 'cause of action
. . . arising from' means simply that the defendant's act underlying the
plaintiff's cause of action must itself have been an act in furtherance of the
right of petition or free speech." (Ibid.)
In applying this holding, the Supreme Court concluded that the
municipality's action arose from the underlying dispute between the
municipality and the owners that was at issue in both the federal and state
actions, rather than from the owners' exercise of their constitutional right to
file the federal action. (Cotati, supra, 29 Cal.4th at p. 80; see also id. at p.
77.) The court observed, "While City's complaint repeatedly refers to the
underlying subject matter of Owners' federal action (i.e., the mobilehome
park rent stabilization ordinance and arguments respecting its validity), it
contains no reference to the action itself." (Id. at p. 77.) Thus, the
municipality's action was not subject to the anti-SLAPP statute, since it was
not an action "arising from" protected activity. (Cotati, supra, 29 Cal.4th at
p. 80.)
3. Statements made in a judicial proceeding or in connection with
an issue in a judicial proceeding are subject to the anti-SLAPP
statute
Pursuant to section 425.16, subdivision (e)(1) and (2), "Statements,
writings and pleadings in connection with civil litigation are covered by the
anti-SLAPP statute, and that statute does not require any showing that the
litigated matter concerns a matter of public interest." (Rohde v. Wolf
(2007) 154 Cal.App.4th 28, 35; accord Gallanis-Politis v. Medina (2007)
152 Cal.App.4th 600, 609 (Gallanis-Politis) [" ' "A cause of action 'arising
from' defendant's litigation activity may appropriately be the subject of a
section 425.16 motion to strike." . . . ' [Citation.]"].) Litigation activity
subject to an anti-SLAPP motion includes "communicative conduct such as
the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.)
" ' "[J]ust as communications preparatory to or in anticipation of the
bringing of an action or other official proceeding are within the protection
of the litigation privilege of Civil Code section 47, subdivision (b) [citation],
. . . such statements are equally entitled to the benefits of section 425.16."
[Citations.]' [Citations.]" (Gallanis-Politis, supra, 152 Cal.App.4th at p.
109.) Thus, an action for defamation falls within the anti-SLAPP statute if
the allegedly defamatory statement was made in connection with litigation.
(Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137
Cal.App.4th 1, 5.) However, "[t]he statute does not accord anti-SLAPP
protection to suits arising from any act having any connection, however
remote, with an official proceeding." (Paul v. Friedman (2002) 95
Cal.App.4th 853, 866.)
B. Application
The primary arguments that ASSE and Brandt advanced in their
anti-SLAPP motion in the trial court in attempting to carry their threshold
burden of demonstrating that plaintiffs' claims arose from protected activity
are contrary to well established law. First, ASSE and Brandt claimed that
the " 'convenient' " timing of the filing of this action, a "mere one month"
after ASSE filed its complaint in intervention in the North Carolina action,
demonstrated that plaintiffs' lawsuit arose from ASSE's participation in the
North Carolina proceeding. However, as noted above, the Supreme Court
has clearly held that the fact that a party files an action after protected
activity has taken place does not demonstrate that the action arose from
the protected activity. (Cotati, supra, 29 Cal.4th at p. 69 [fact that
municipality's action was filed "shortly after" owners filed separate action
did not mean that municipality's action arose from owner's action].)
Second, ASSE and Brandt claimed that plaintiffs' action was a
"clearly-retaliatory lawsuit." Even assuming that plaintiffs filed this lawsuit in
retaliation for ASSE's participation in the North Carolina action, any such
retaliatory motive would be irrelevant in determining the merits of ASSE
and Brandt's anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77; see
Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921 ["Kajima wrongly focuses on the City's filing of the
amended cross-complaint as a supposed act of retaliation without
demonstrating, as it must under the anti-SLAPP statute, that the amended
cross-complaint 'alleges acts in furtherance of [Kajima's] right of petition or
free speech in connection with a public issue' "].)[9]
ASSE and Brandt made the related argument in the trial court that, "The
SLAPP character of Plaintiffs' action is . . . clear from the obvious
insufficiency of the causes of action." We are not aware of any authority,
and ASSE and Brandt have cited none, that indicates that the insufficiency
of the allegations in a plaintiff's complaint may be used to demonstrate that
the claims alleged therein arise from a defendant's protected activity.[10]
ASSE and Brandt apparently intend to suggest that that the alleged
insufficiency of the plaintiffs' amended complaint demonstrates that
plaintiffs' motive in filing the action was improper. (Cf. In re Marriage of
Gong and Kwong (2008) 163 Cal.App.4th 510, 516 [" ' "the total lack of
merit of an appeal is viewed as evidence that appellant must have
intended it only for delay" ' "]). However, as noted above, a plaintiff's
motive in filing an action is irrelevant for purposes of determining the
merits of an anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77.)
Any alleged insufficiency in the plaintiffs' amended complaint regarding the
context in which the purported defamatory statements were made would
tend to negate, rather than support, the conclusion that ASSE and Brandt
demonstrated that the statements were made in a judicial proceeding or in
connection with an issue before a judicial body. ASSE and Brandt implicitly
acknowledged this in their anti-SLAPP motion when they stated, "Because
plaintiffs have not sufficiently alleged Defendants' allegedly 'defamatory
statements' in the instant action, the exact origin of and circumstances
surrounding the alleged statements are currently unknown."
A defendant seeking to carry its burden of demonstrating that a plaintiff's
action arises from the defendant's participation in a judicial proceeding
does not carry this burden by demonstrating that the statements that form
the basis of the action were made under "unknown" circumstances.
Further, a defendant seeking to establish that the plaintiffs' cause of
action arises from protected activity is not limited to the plaintiffs'
pleadings. Rather, in seeking to carry this threshold burden, a defendant
may submit declarations attesting to the context in which statements that
form the basis of the plaintiff's claims were made. (See, e.g., Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1057 [defendant submitted declarations of its attorney and
employee demonstrating that statements forming the basis of plaintiff's
complaint arose in connection with judicial proceeding]; 425.16, subd.
(b)(2) [trial court shall consider "supporting and opposing affidavits stating
the facts upon which the liability or defense is based," in ruling on
anti-SLAPP motion].) In this case, ASSE and Brandt provided no such
declarations. Their assertion in their anti-SLAPP motion that the
statements forming the basis of plaintiffs' claims "appear to directly relate
to ASSE's participation in the North Carolina action," does not establish
that this is in fact so. (Italics added, formatting omitted.)
While ASSE and Brandt did request that the trial court take judicial notice
of various documents from the North Carolina proceeding, there is no
reference in the plaintiffs' amended complaint to the North Carolina
proceeding, and nothing in the complaint suggests that plaintiffs seek to
hold ASSE and Brandt liable for statements they made in any pleading in
the North Carolina action. On the contrary, rather than alleging that ASSE
made the statements in a judicial proceeding, plaintiffs' amended
complaint suggests that ASSE's statements were "directed to the parents
of the students and to citizens with concerns regarding the problems
caused by . . . ASSE's misconduct . . . ." (Italics added.)
Further, while plaintiffs' amended complaint alleges nine defamatory
statements,[11]ASSE and Brandt's anti-SLAPP motion fails to address, in
any fashion, eight of these statements. The only allegation from the
plaintiffs' amended complaint that ASSE and Brandt mention in their
anti-SLAPP motion is plaintiffs' allegation that the defendants had falsely
accused Grijalva of "making 'false statements.' " ASSE and Brandt argued
in their anti-SLAPP motion that this allegation arose from ASSE's
allegation in its complaint in intervention in the North Carolina action that
Grijalva had disseminated "false and misleading information."
Even assuming for the sake of argument that ASSE and Brandt
demonstrated that this single allegation is premised on a statement made
in the North Carolina pleading, or in connection with an issue under review
in the North Carolina action, this would not satisfy their burden to
demonstrate that the gravamen of plaintiffs' claims arises from protected
activity. (Martinez v. Metabolife Intern., Inc., supra, 113 Cal.App.4th at p.
188.) "[C]ollateral allusions to protected activity should not subject the
cause of action to the anti-SLAPP statute." (Ibid.)
In sum, ASSE and Brandt did not demonstrate that the defamatory
statements alleged in plaintiffs' amended complaint were made in a judicial
proceeding or in connection with an issue under consideration or review
by a judicial body. ( 425.16, subd. (e)(1) and (2).) Accordingly, the trial
court erred in concluding that ASSE and Brandt carried their burden of
demonstrating that plaintiffs' action arose from petitioning activity that is
protected by the anti-SLAPP statute.[12]
IV. DISPOSITION
The August 8, 2008 order is reversed. Grijalva is entitled to costs
on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] "CSFES" is the name plaintiffs used in their complaint to identify this
party. Although CSFES appears to be an acronym, plaintiffs did not
provide the full name of the entity in their complaint. In their complaint,
plaintiffs alleged that both Brandt and Motycka were agents or employees
of ASSE. Motycka is not a party to this appeal.
[2] "SLAPP" stands for Strategic Lawsuit Against Public Participation. (See
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
Unless otherwise specified, all subsequent statutory references are to the
Code of Civil Procedure
[3] Plaintiffs also claim that the trial court abused its discretion in refusing
to allow them to file a late opposition to the anti-SLAPP motion. In light of
our reversal of the order granting the anti-SLAPP motion, we need not
consider this contention.
[4] The original complaint indicated that the case was a "Limited
Jurisdiction" case, i.e. one in which the amount in controversy did not
exceed $25,000 ( 85). The amended complaint prayed for a judgment
within the "unlimited jurisdictional limit" of the trial court.
[5] Several of the pleadings contained in the record, including the
demurrer, do not bear a file stamp. We assume for sake of this
decision that the pleadings that do not bear a file stamp were filed
on the dates indicated in the documents.
[6] Implicit in the court's comment is that the court's docket no longer
precluded holding a hearing on the motion.
[7] In her notice of appeal, Grijalva refers to the "judgment entered on
August 8, 2008." (Italics added.) We construe the notice of appeal as
referring to the August 8, 2008 order granting the anti-SLAPP motion. The
order is appealable. ( 904.1, subd. (13).)
[8] ASSE and Brant did not argue in the trial court, and do not argue on
appeal, that either of the plaintiffs' causes of action arose from statements
or conduct defined in section 425.16, subdivision (e)(3) or (4).
Accordingly, we restrict our analysis to section 425.16, subdivision (e)(1)
and (2).
[9] ASSE and Brandt reiterate these arguments on appeal, claiming that
plaintiffs' filed this "retaliatory lawsuit" a "mere thirty-two days after ASSE
intervened in the North Carolina action."
[10] We express no view in this opinion on the merits of ASSE and Brandt's
demurrer to the plaintiffs' amended complaint. As noted previously, the
trial court concluded that the demurrer was moot, in light of its ruling
granting the anti-SLAPP motion.
[11] The nine statements are quoted in full in part II, ante.
[12] Although the trial court ruled that ASSE and Brandt demonstrated that
plaintiffs' amended complaint arose from "statements made by Defendants
in the complaint-in-intervention in the North Carolina case," Brandt did not
make any statements in ASSE's complaint-in-intervention. (Italics added.)
Further, ASSE and Brandt did not argue in their anti-SLAPP motion that
Brandt had any involvement in the North Carolina proceeding. However,
we need not resolve whether an employee of a entity may prevail on an
anti-SLAPP motion based on its employer's alleged petitioning activity
under these circumstances, in light of our conclusion that ASSE and
Brandt failed to demonstrate that plaintiffs' amended complaint arose from
ASSE's participation in the North Carolina proceeding.
Grijalva v. Brandt
Filed 7/20/09 Grijalva v. Brandt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DANIELLE GRIJALVA et al.,
Plaintiffs and Appellants,
v.
HELGA BRANDT et al.,
Defendants and Respondents.
D053856
(Super. Ct. No. 37-2008-00052285-CU-DF-NC)
APPEAL from an order of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Reversed.
I. INTRODUCTION
In March 2008, Grijalva and CSFES[1]filed this action against ASSE
International, Inc. (ASSE), Helga Brandt, and Josef Motycka.
According to plaintiffs' amended complaint, Grijalva founded
CSFES, a Web site and agency that advocates for the safety and
welfare of foreign exchange students visiting the United States.
Plaintiffs alleged that ASSE is a student exchange agency that had failed
to secured proper residential and education placements for students in its
program. Plaintiffs further alleged that the defendants had made a series
of false statements regarding Grijalva. Plaintiffs brought claims for
defamation and unfair business practices against defendants.
ASSE and Brandt filed a joint special motion to strike plaintiffs' amended
complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., 425.16).[2]
In order to prevail on an anti-SLAPP motion, a defendant must
demonstrate that the plaintiff's claims arise 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).) The statute provides that
any written or oral statement or writing made by the defendant in a judicial
proceeding or made by the defendant in connection with an issue under
consideration or review by a judicial body constitutes such an act. (
425.16, subd. (e)(1) and (2).)
In their anti-SLAPP motion, ASSE and Brandt claimed that plaintiffs' action
was within the scope of the anti-SLAPP statute because it "appear[ed]" to
relate to ASSE's participation in a separate judicial proceeding in North
Carolina. After plaintiffs failed to file a timely opposition to the anti-SLAPP
motion, the trial court granted the motion. In its order, the trial court
concluded that ASSE and Brandt had demonstrated that "at least part of
the first and second causes of action arise out of statements made by
[ASSE] in the complaint-in-intervention in the North Carolina case."
On appeal, plaintiffs claim that the trial court erred in granting the
anti-SLAPP motion. Plaintiffs contend that the trial court erred in
concluding that ASSE and Brandt had satisfied their threshold burden of
demonstrating that plaintiffs' claims arose from ASSE and Brandt's
participation in the North Carolina proceeding.[3] We agree, and reverse
the trial court's order granting the anti-SLAPP motion.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2008, plaintiffs filed a complaint against ASSE, Brandt, and
Motycka. In their complaint, plaintiffs alleged:
"Defendant [ASSE] has brought students to the United States without
having secured proper placements for homes and schools for the
students. As a result[,] problems have emerged and individuals have
utilized the CSFES website in an effort to address the problems
encountered by students experiencing extended stays in what were
supposed to be temporary homes, problems with enrollment, problems
resulting from improper hasty placements and problems . . . with improper
placement homes."
Plaintiffs further alleged that "CSFES and . . . Grijalva seek to empower
students, parents, and workers who are concerned about the students'
welfare and who share the goal of having the agencies live up to their
responsibilities regarding the safety and welfare of the students."
The only allegations in the complaint regarding specific wrongful actions
allegedly taken by the defendants were the following:
"Defendant ASSE in response to the attention generated on [sic] the
problems it created, set out to malign CSFES and . . . Grijalva with an
intentional and false campaign directed to the parents of the students and
to citizens with concerns regarding the problems caused by . . . ASSE's
misconduct.
"Defendants falsely accused [Grijalva] of the following:
"a. conducting her website and agency with a 'commercial purpose'
"b. 'manipulating facts'
"c. 'not portraying a clear picture'
"d. 'isn't interested in the welfare of the students'
"e. 'threatening' to send information on exchange agencies but 'if got [sic]
a contribution doesn't send anything,'
"f. 'represent[ing] herself as a federal agent,'
"g. 'performs background checks,'
"h. [b]eing a 'liar,'
"i. [m]aking 'false statements'[.]"
In a defamation cause of action, plaintiffs alleged, "Defendants made the
foregoing statements with the intent to convey false and defamatory
meanings of and concerning . . . Grijalva and CSFES." Plaintiffs also
brought an unfair business practices claim against defendants in which
they incorporated all of the other allegations of the complaint and alleged
that this "conduct of the defendants and each of them involve practices
that were dishonest, deceptive, in disregard of the rights of the students
and in disregard of the agency's obligations under the contract by which
the students and their families entered the program."
On the same day that plaintiffs filed their complaint, they filed a notice of
related case. In their notice, plaintiffs stated:
"Programmes Internationaux D'Exchanges [(PIE)] sued [Veronica Beddick
and Grijalva] in North Carolina for defamation and interference for
discussing problems related to foreign exchange students who were
brought to the [United States] without proper placement in home and
schools. [PIE] recruits students in France. ASSE is responsible for
placements and supervision in the [United States]. Beddick was an
employee of ASSE. Grijalva runs a website, CSFES, devoted to the welfare
and safety of foreign exchange students. The enmity of ASSE against
Grijalva, and the motivation behind the defendants['] effort to smear
Grijalva can be traced back to her activities in helping bring ASSE caused
problems to light."
On March 24, the plaintiffs filed an amended complaint that was identical in
all material respects to their original complaint.[4]
On April 24, ASSE and Brandt filed an anti-SLAPP motion. In their motion,
ASSE and Brandt claimed that plaintiffs' action arose from ASSE's
participation in a separate judicial proceeding involving Grijalva. ASSE and
Brandt explained that in September 2007, PIE sued Grijalva in North
Carolina, alleging that she had wrongfully disseminated false and
misleading information regarding PIE. In December 2007, PIE obtained a
preliminary injunction in the North Carolina action enjoining Grijalva from
having contact with students in PIE's programs and preventing Grijalva
from disseminating false or misleading information regarding PIE.
ASSE and Brandt further stated that in February 2008, ASSE moved to
intervene in the North Carolina action and sought a preliminary injunction
against Grijalva to preclude her from contacting various persons
sponsored by ASSE, and to prevent her from disseminating false or
misleading information to those persons. ASSE and Brandt argued:
"A mere one month after ASSE moved to intervene, Plaintiffs filed this
meritless suit seeking unsubstantiated damages and alleging that at some
unspecified time, at an unspecified location and to unspecified persons,
Defendants made 'statements' which Plaintiffs allege are defamatory and
constitute unfair business practices. . . .
"This lawsuit is just a continuation of Plaintiffs' crusade to harass
Defendants . . . . Plaintiffs seek to punish Defendants for ASSE's
participation in the judicial proceedings in North Carolina and thereby chill
Defendants' right of petition. The SLAPP character of Plaintiffs' action is
not only clear from the obvious insufficiency of the causes of action, but
also from the 'convenient' timing of plaintiffs' lawsuit . . . .
"Because plaintiffs have not sufficiently alleged Defendants' allegedly
'defamatory statements' in the instant action, the exact origin of and
circumstances surrounding the alleged statements are currently unknown.
However, the allegedly defamatory statements appear to directly relate to
ASSE's participation in the North Carolina action. For example, Plaintiffs'
First Amended Complaint alleges Defendants' defamatory publications
included statements that Plaintiffs were 'making false statements.'
[Citation.] This allegation appears to directly relate to ASSE's statements
in the proposed Complaint ASSE submitted to the North Carolina court . . .
that Grijalva had disseminated 'false and misleading information.'
[Citation.]" (Formatting omitted.)
ASSE and Brandt also argued that plaintiffs could not establish a
probability of prevailing on either of their two causes of action.
ASSE and Brandt requested that the court take judicial notice of various
documents from the North Carolina action, including PIE's complaint and
motion for a preliminary injunction, the preliminary injunction entered in
favor of PIE, ASSE's motion to intervene, ASSE's motion for a preliminary
injunction, and the affidavits of two ASSE employees filed by ASSE in
support of its motion for a preliminary injunction.
Also on or about April 24, ASSE and Brandt filed a demurrer to plaintiffs'
amended complaint.[5] In their demurrer, ASSE and Brandt claimed that
plaintiffs' defamation and unfair business practices claims failed as matter
of law because they were based on communications related to the North
Carolina action. ASSE and Brandt also claimed that each of plaintiffs'
claims failed to adequately state facts sufficient to state a cause of action
and that the claims were vague and legally uncertain.
On July 16, ASSE and Brandt filed and served notices in which they stated
that they had not received an opposition to either their anti-SLAPP motion
or their demurrer.
On July 21, Grijalva's attorney filed an ex-parte application requesting that
the trial court accept a late filed opposition to ASSE and Brandt's
anti-SLAPP motion, or, in the alternative, that the court continue the
hearing on defendants' anti-SLAPP motion. In the application, Grijalva's
attorney also requested leave to file a second amended complaint in
response to the pending demurrer. Grijalva's attorney filed the late
opposition to defendants' anti-SLAPP motion and an accompanying
declaration from Grijalva, as well as a second amended complaint, with the
application. Grijalva's attorney also filed a declaration in which he stated
that his failure to timely file the opposition "was due to personal difficulties I
encountered and was not the fault of the client."
On July 22, ASSE and Brandt filed an opposition to the ex parte
application. ASSE and Brandt noted that, while ordinarily an anti-SLAPP
motion must be heard by the trial court within 30 days of the filing of the
motion ( 425.16, subd. (f)), in this case, plaintiffs had already had more
than three months to file an opposition, due to the condition of the trial
court's docket. ASSE and Brandt also argued that plaintiffs had not
demonstrated sufficient grounds for relief from their failure to timely file an
opposition. ASSE and Brandt supported their opposition with a declaration
from one of their attorneys.
On July 24, the trial court denied Grijalva's application to file the late
opposition to the anti-SLAPP motion. The court noted that the hearing on
the anti-SLAPP motion was scheduled for the following day, and that to
allow the filing of the opposition would be unfair to ASSE and Brandt since
they would not have sufficient time to file a reply. The court also stated
that it could not continue the hearing because the court was obligated to
hear the motion within 30 days of the filing unless its docket would not
permit consideration of the motion within that time period.[6] The trial court
also denied Grijalva's attempt to file a second amended complaint, noting
that such action could not properly be accomplished by way of an ex parte
application, absent a stipulation.
The following day, the trial court confirmed its tentative ruling granting
ASSE and Brandt's anti-SLAPP motion. The court concluded that ASSE
and Brandt had demonstrated that the actionable conduct pled in the
amended complaint arose out of "statement[s]. . . made before . . . [a]
judicial proceeding," and "in connection with an issue under consideration
or review by . . . [a] judicial body," quoting section 425.16, subdivision
(e)(1) and (2). The court reasoned:
"Defendants have sufficiently shown that . . . at least part of the first and
second causes of action arise out of statements made by Defendants in
the complaint-in-intervention in the North Carolina case. The Court also
concludes [that] the protected statements are not 'merely incident[al]' to
the potentially unprotected statements alleged in the first amended
complaint. Thus, Defendants have met their initial burden on this motion."
The trial court also noted that in light of ASSE and Brandt having met their
burden to demonstrate that the plaintiffs' claims were within the scope of
section 425.16, subdivision (e)(1) and (2), the plaintiffs were required to
demonstrate a probability of prevailing on their claims. The court
concluded that plaintiffs failed to carry this burden, since they had not
submitted an opposition to the anti-SLAPP motion. The court granted the
anti-SLAPP motion, and stated that ASSE and Brandt's demurrer was moot
in light of the court's ruling on the anti-SLAPP motion.
The trial court entered a formal order granting ASSE and Brandt's
anti-SLAPP motion on August 8. Grijalva timely appeals from that order.[7]
III. DISCUSSION
The trial court erred in granting ASSE and Brandt's anti-SLAPP
motion
Plaintiffs claim that the trial court erred in granting ASSE and Brandt's
anti-SLAPP motion. Specifically, plaintiffs claim that the trial court erred in
determining that ASSE and Brandt had carried their burden of
demonstrating that plaintiffs' claims arose from ASSE and Brandt's
participation in the North Carolina proceeding and that the claims were
therefore within the scope of section 425.16, subdivision (e)(1) and (2).
We review de novo the trial court's determination that the plaintiffs' claims
arose from ASSE and Brandt's protected activity. (Tutor-Saliba Corp. v.
Herrera (2006) 136 Cal.App.4th 604 (Tutor Saliba Corp.).)
A. Governing Law
1. General principles of law governing anti-SLAPP motions
Section 425.16, provides in relevant part:
"(a) The Legislature finds and declares that there has been 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. The Legislature finds and declares that it is in the public
interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through
abuse of the judicial process. To this end, this section shall be construed
broadly.
"(b)(1) A cause of action against a person arising from any act of that
person in furtherance of the person's right of petition or free speech under
the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.
"(2) In making its determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.
"[] . . . []
"(e) As used in this section, 'act in furtherance of a person's right of
petition or free speech under the United States or California Constitution in
connection with a public issue' includes: (1) any written or oral statement
or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law; (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection with an
issue of public interest; (4) or 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."[8]
In Tutor-Saliba Corp., supra, 136 Cal.App.4th at page 609, the court
outlined the burdens of proof applicable to an anti-SLAPP motion:
" 'Under the statute, the court makes a two-step determination: "First, the
court decides whether the defendant has made a threshold showing that
the challenged cause of action is one arising from protected activity.
[Citation.] 'A defendant meets this burden by demonstrating that the act
underlying the plaintiff's cause fits one of the categories spelled out in
section 425.16, subdivision (e)' [Citation.] If the court finds that such a
showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim. [Citation.]"
[Citations.] "Only a cause of action that satisfies both prongs of the
anti-SLAPP statute - i.e., that arises from protected speech or petitioning
and lacks even minimal merit - is a SLAPP, subject to being stricken under
the statute." [Citation.]' "
"[I]t is the principal thrust or gravamen of the plaintiff's cause of action that
determines whether the anti-SLAPP statute applies [citation], and when the
allegations referring to arguably protected activity are only incidental to a
cause of action based essentially on nonprotected activity, collateral
allusions to protected activity should not subject the cause of action to the
anti-SLAPP statute." (Martinez v. Metabolife Intern., Inc. (2003) 113
Cal.App.4th 181, 188; see also Club Members For An Honest Election v.
Sierra Club (2008) 45 Cal.4th 309, 319 [The " 'principal thrust or
gravamen' " test serves the Legislative intent that section 425.16 be
broadly interpreted].)
2. The "arising from" requirement in section 425.16, subdivision
(b)(1)
In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (Cotati), the
Supreme Court interpreted the requirement in section 425.16, subdivision
(b)(1) that a defendant demonstrate that the plaintiff's action is one
"arising from" protected activity. In Cotati, a group of mobile home park
owners sued a municipality in federal court claiming that the municipality's
rent stabilization ordinance was unconstitutional. (Cotati, supra, 29 Cal.4th
at p. 72.) The municipality subsequently filed a declaratory relief action in
state court seeking a declaration that the ordinance was constitutional.
(Ibid.) The owners filed an anti-SLAPP motion in the state court action
(ibid.), arguing that the municipality's state action was within the scope of
the anti-SLAPP statute because it arose from the owners' action in filing
the federal lawsuit. (Id. at pp. 72-73.) The trial court granted the
anti-SLAPP motion, reasoning that that the municipality had filed its action
shortly after the owners filed the federal action, named only the owners as
defendants, and involved " 'the exact contention' " made by the owners in
the federal action. (Id. at p. 73.)
The Cotati court disagreed with the trial court's conclusion that the state
court action had "aris[en] from" protected activity. (Cotati, supra, 29
Cal.4th at p. 76.) The court began by emphasizing that the timing of the
City's filing did not demonstrate that the action arose from the owners'
filing of the federal action. (Id. at pp. 76-77.) The court stated, "It is
indisputably true, as the trial court observed, that City's action was filed
shortly after Owners filed their claim in federal court. But the mere fact an
action was filed after protected activity took place does not mean it arose
from that activity." (Ibid.) The Cotati court further explained that to interpret
" 'arising from' in section 425.16, subdivision (b)(1) as meaning 'in
response to,' as Owners have urged, would in effect render all
cross-actions potential SLAPP's. . . ." (Id. at p. 77.) The court rejected this
interpretation as both leading to an "absurd result" and being inconsistent
with the statutory scheme governing cross-complaints. (Ibid.)
The Cotati court further held that the "City's subjective intent [in filing the
action] is not relevant under the anti-SLAPP statute." (Cotati, supra, 29
Cal.4th at p. 78.) "[A] claim filed in response to, or in retaliation for,
threatened or actual litigation is not subject to the anti-SLAPP statute
simply because it may be viewed as an oppressive litigation tactic." (Ibid.)
A trial court may not focus on a plaintiffs' "litigation tactics," but rather,
must determine, based "on the substance of [plaintiff's] lawsuit," whether
the defendant has demonstrated that "an alleged SLAPP arise[s] from
protected speech or petitioning." (Id. at p. 78.) The Supreme Court
summarized its holding by stating, "[T]he statutory phrase 'cause of action
. . . arising from' means simply that the defendant's act underlying the
plaintiff's cause of action must itself have been an act in furtherance of the
right of petition or free speech." (Ibid.)
In applying this holding, the Supreme Court concluded that the
municipality's action arose from the underlying dispute between the
municipality and the owners that was at issue in both the federal and state
actions, rather than from the owners' exercise of their constitutional right to
file the federal action. (Cotati, supra, 29 Cal.4th at p. 80; see also id. at p.
77.) The court observed, "While City's complaint repeatedly refers to the
underlying subject matter of Owners' federal action (i.e., the mobilehome
park rent stabilization ordinance and arguments respecting its validity), it
contains no reference to the action itself." (Id. at p. 77.) Thus, the
municipality's action was not subject to the anti-SLAPP statute, since it was
not an action "arising from" protected activity. (Cotati, supra, 29 Cal.4th at
p. 80.)
3. Statements made in a judicial proceeding or in connection with
an issue in a judicial proceeding are subject to the anti-SLAPP
statute
Pursuant to section 425.16, subdivision (e)(1) and (2), "Statements,
writings and pleadings in connection with civil litigation are covered by the
anti-SLAPP statute, and that statute does not require any showing that the
litigated matter concerns a matter of public interest." (Rohde v. Wolf
(2007) 154 Cal.App.4th 28, 35; accord Gallanis-Politis v. Medina (2007)
152 Cal.App.4th 600, 609 (Gallanis-Politis) [" ' "A cause of action 'arising
from' defendant's litigation activity may appropriately be the subject of a
section 425.16 motion to strike." . . . ' [Citation.]"].) Litigation activity
subject to an anti-SLAPP motion includes "communicative conduct such as
the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.)
" ' "[J]ust as communications preparatory to or in anticipation of the
bringing of an action or other official proceeding are within the protection
of the litigation privilege of Civil Code section 47, subdivision (b) [citation],
. . . such statements are equally entitled to the benefits of section 425.16."
[Citations.]' [Citations.]" (Gallanis-Politis, supra, 152 Cal.App.4th at p.
109.) Thus, an action for defamation falls within the anti-SLAPP statute if
the allegedly defamatory statement was made in connection with litigation.
(Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137
Cal.App.4th 1, 5.) However, "[t]he statute does not accord anti-SLAPP
protection to suits arising from any act having any connection, however
remote, with an official proceeding." (Paul v. Friedman (2002) 95
Cal.App.4th 853, 866.)
B. Application
The primary arguments that ASSE and Brandt advanced in their
anti-SLAPP motion in the trial court in attempting to carry their threshold
burden of demonstrating that plaintiffs' claims arose from protected activity
are contrary to well established law. First, ASSE and Brandt claimed that
the " 'convenient' " timing of the filing of this action, a "mere one month"
after ASSE filed its complaint in intervention in the North Carolina action,
demonstrated that plaintiffs' lawsuit arose from ASSE's participation in the
North Carolina proceeding. However, as noted above, the Supreme Court
has clearly held that the fact that a party files an action after protected
activity has taken place does not demonstrate that the action arose from
the protected activity. (Cotati, supra, 29 Cal.4th at p. 69 [fact that
municipality's action was filed "shortly after" owners filed separate action
did not mean that municipality's action arose from owner's action].)
Second, ASSE and Brandt claimed that plaintiffs' action was a
"clearly-retaliatory lawsuit." Even assuming that plaintiffs filed this lawsuit in
retaliation for ASSE's participation in the North Carolina action, any such
retaliatory motive would be irrelevant in determining the merits of ASSE
and Brandt's anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77; see
Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921 ["Kajima wrongly focuses on the City's filing of the
amended cross-complaint as a supposed act of retaliation without
demonstrating, as it must under the anti-SLAPP statute, that the amended
cross-complaint 'alleges acts in furtherance of [Kajima's] right of petition or
free speech in connection with a public issue' "].)[9]
ASSE and Brandt made the related argument in the trial court that, "The
SLAPP character of Plaintiffs' action is . . . clear from the obvious
insufficiency of the causes of action." We are not aware of any authority,
and ASSE and Brandt have cited none, that indicates that the insufficiency
of the allegations in a plaintiff's complaint may be used to demonstrate that
the claims alleged therein arise from a defendant's protected activity.[10]
ASSE and Brandt apparently intend to suggest that that the alleged
insufficiency of the plaintiffs' amended complaint demonstrates that
plaintiffs' motive in filing the action was improper. (Cf. In re Marriage of
Gong and Kwong (2008) 163 Cal.App.4th 510, 516 [" ' "the total lack of
merit of an appeal is viewed as evidence that appellant must have
intended it only for delay" ' "]). However, as noted above, a plaintiff's
motive in filing an action is irrelevant for purposes of determining the
merits of an anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77.)
Any alleged insufficiency in the plaintiffs' amended complaint regarding the
context in which the purported defamatory statements were made would
tend to negate, rather than support, the conclusion that ASSE and Brandt
demonstrated that the statements were made in a judicial proceeding or in
connection with an issue before a judicial body. ASSE and Brandt implicitly
acknowledged this in their anti-SLAPP motion when they stated, "Because
plaintiffs have not sufficiently alleged Defendants' allegedly 'defamatory
statements' in the instant action, the exact origin of and circumstances
surrounding the alleged statements are currently unknown."
A defendant seeking to carry its burden of demonstrating that a plaintiff's
action arises from the defendant's participation in a judicial proceeding
does not carry this burden by demonstrating that the statements that form
the basis of the action were made under "unknown" circumstances.
Further, a defendant seeking to establish that the plaintiffs' cause of
action arises from protected activity is not limited to the plaintiffs'
pleadings. Rather, in seeking to carry this threshold burden, a defendant
may submit declarations attesting to the context in which statements that
form the basis of the plaintiff's claims were made. (See, e.g., Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1057 [defendant submitted declarations of its attorney and
employee demonstrating that statements forming the basis of plaintiff's
complaint arose in connection with judicial proceeding]; 425.16, subd.
(b)(2) [trial court shall consider "supporting and opposing affidavits stating
the facts upon which the liability or defense is based," in ruling on
anti-SLAPP motion].) In this case, ASSE and Brandt provided no such
declarations. Their assertion in their anti-SLAPP motion that the
statements forming the basis of plaintiffs' claims "appear to directly relate
to ASSE's participation in the North Carolina action," does not establish
that this is in fact so. (Italics added, formatting omitted.)
While ASSE and Brandt did request that the trial court take judicial notice
of various documents from the North Carolina proceeding, there is no
reference in the plaintiffs' amended complaint to the North Carolina
proceeding, and nothing in the complaint suggests that plaintiffs seek to
hold ASSE and Brandt liable for statements they made in any pleading in
the North Carolina action. On the contrary, rather than alleging that ASSE
made the statements in a judicial proceeding, plaintiffs' amended
complaint suggests that ASSE's statements were "directed to the parents
of the students and to citizens with concerns regarding the problems
caused by . . . ASSE's misconduct . . . ." (Italics added.)
Further, while plaintiffs' amended complaint alleges nine defamatory
statements,[11]ASSE and Brandt's anti-SLAPP motion fails to address, in
any fashion, eight of these statements. The only allegation from the
plaintiffs' amended complaint that ASSE and Brandt mention in their
anti-SLAPP motion is plaintiffs' allegation that the defendants had falsely
accused Grijalva of "making 'false statements.' " ASSE and Brandt argued
in their anti-SLAPP motion that this allegation arose from ASSE's
allegation in its complaint in intervention in the North Carolina action that
Grijalva had disseminated "false and misleading information."
Even assuming for the sake of argument that ASSE and Brandt
demonstrated that this single allegation is premised on a statement made
in the North Carolina pleading, or in connection with an issue under review
in the North Carolina action, this would not satisfy their burden to
demonstrate that the gravamen of plaintiffs' claims arises from protected
activity. (Martinez v. Metabolife Intern., Inc., supra, 113 Cal.App.4th at p.
188.) "[C]ollateral allusions to protected activity should not subject the
cause of action to the anti-SLAPP statute." (Ibid.)
In sum, ASSE and Brandt did not demonstrate that the defamatory
statements alleged in plaintiffs' amended complaint were made in a judicial
proceeding or in connection with an issue under consideration or review
by a judicial body. ( 425.16, subd. (e)(1) and (2).) Accordingly, the trial
court erred in concluding that ASSE and Brandt carried their burden of
demonstrating that plaintiffs' action arose from petitioning activity that is
protected by the anti-SLAPP statute.[12]
IV. DISPOSITION
The August 8, 2008 order is reversed. Grijalva is entitled to costs
on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
Publication Courtesy of California free legal resources.
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[1] "CSFES" is the name plaintiffs used in their complaint to identify this
party. Although CSFES appears to be an acronym, plaintiffs did not
provide the full name of the entity in their complaint. In their complaint,
plaintiffs alleged that both Brandt and Motycka were agents or employees
of ASSE. Motycka is not a party to this appeal.
[2] "SLAPP" stands for Strategic Lawsuit Against Public Participation. (See
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
Unless otherwise specified, all subsequent statutory references are to the
Code of Civil Procedure
[3] Plaintiffs also claim that the trial court abused its discretion in refusing
to allow them to file a late opposition to the anti-SLAPP motion. In light of
our reversal of the order granting the anti-SLAPP motion, we need not
consider this contention.
[4] The original complaint indicated that the case was a "Limited
Jurisdiction" case, i.e. one in which the amount in controversy did not
exceed $25,000 ( 85). The amended complaint prayed for a judgment
within the "unlimited jurisdictional limit" of the trial court.
[5] Several of the pleadings contained in the record, including the
demurrer, do not bear a file stamp. We assume for sake of this
decision that the pleadings that do not bear a file stamp were filed
on the dates indicated in the documents.
[6] Implicit in the court's comment is that the court's docket no longer
precluded holding a hearing on the motion.
[7] In her notice of appeal, Grijalva refers to the "judgment entered on
August 8, 2008." (Italics added.) We construe the notice of appeal as
referring to the August 8, 2008 order granting the anti-SLAPP motion. The
order is appealable. ( 904.1, subd. (13).)
[8] ASSE and Brant did not argue in the trial court, and do not argue on
appeal, that either of the plaintiffs' causes of action arose from statements
or conduct defined in section 425.16, subdivision (e)(3) or (4).
Accordingly, we restrict our analysis to section 425.16, subdivision (e)(1)
and (2).
[9] ASSE and Brandt reiterate these arguments on appeal, claiming that
plaintiffs' filed this "retaliatory lawsuit" a "mere thirty-two days after ASSE
intervened in the North Carolina action."
[10] We express no view in this opinion on the merits of ASSE and Brandt's
demurrer to the plaintiffs' amended complaint. As noted previously, the
trial court concluded that the demurrer was moot, in light of its ruling
granting the anti-SLAPP motion.
[11] The nine statements are quoted in full in part II, ante.
[12] Although the trial court ruled that ASSE and Brandt demonstrated that
plaintiffs' amended complaint arose from "statements made by Defendants
in the complaint-in-intervention in the North Carolina case," Brandt did not
make any statements in ASSE's complaint-in-intervention. (Italics added.)
Further, ASSE and Brandt did not argue in their anti-SLAPP motion that
Brandt had any involvement in the North Carolina proceeding. However,
we need not resolve whether an employee of a entity may prevail on an
anti-SLAPP motion based on its employer's alleged petitioning activity
under these circumstances, in light of our conclusion that ASSE and
Brandt failed to demonstrate that plaintiffs' amended complaint arose from
ASSE's participation in the North Carolina proceeding.
San Diego
Education Report
Education Report
Exchange Student Abuse Spurs Background
Checks, New Rules
North County Gazette, New York state
October 30, 2005
From Perth, Australia to Plainwell, Mich., there is a pattern of abuse that is
making headlines around the world, according to the Committee for Safety
of Foreign Exchange Students, a group of concerned citizens in the United
States, a voluntary organization formed to protect the exchange students
that arrive in the thousands from all over the world to study in the U.S.
During their stay, the students share accommodations with a host family, or
a welcome family, and in numerous cases the students were reportedly
abused by their host parents.
Danielle Grijalva of Oceanside, CA, CSFES director, says that given the
recent events in Florida, the U.S. States Department of State should now be
requiring the student exchange industry to notify and seek the permission of
the natural parents when they plan to place their son or daughter in the
home of a parolee or convicted criminal. The form must include the
parolee's background and the Department of Corrections Number, when
applicable, and include signature lines for the natural parents granting full
permission.
Ms. Grijalva was referring to the situation of the placement of a 16-year-old
female Japanese exchange student in the home of a St. Johns County
family in Florida where the husband is a convicted felon. The man was
convicted for burglary in 1994 and sentenced to 12 years of prison,
including three years of prison in Georgia and nine years of parole. On one
occasion, the man was charged with sexual battery and rape in Florida He is
still on parole.
She said CSFES was notified of the situation last month.
Despite the husband being a convicted felon and a parolee, the family has
hosted high school Japanese girls for the past three years.
The foreign student was placed with the St. Johns County family by a
Gainesville company, the Foundation of Academic Cultural Exchange
(FACE). Executive director Richard Moss, who supervised the placement of
the Japanese student, admits that the firm rarely undertakes criminal
background checks of prospective families. Moss said that he did not feel it
was important to inform the natural parents of the fact that their daughter
would be placed in the home where the host father is on parole until July,
2006. Furthermore, according to Ms. Grijalva, Moss did not notify the
Japanese foreign partner of the conditions of this placement of its student.
When CSFES brought its concerns to the attention of the Department of
State, Stanley Colvin informed Ms. Grijalva that the natural parents had
since been notified and are perfectly fine with the knowledge that their
daughter is living in the home of a parolee. He further stated to Ms. Grijalva
that the 144 months the host father spent in prison and the nine counts
against him was for a "minor run-in with the law." When Mr. Colvin's
rationale was questioned by an overseas expert, he responded rudely on
the lines that it was none of her business.
Ms. Grijalva said that what concerns CSFES is the effect this will this have
on future placements of foreign exchange students. United States parents
who are contemplating sending their son or daughter abroad should ensure
that the student exchange agency does not place their children with hosts
who have a criminal background. Much seems to depend on the integrity of
the student exchange organization, but our experience has been that when
things go wrong, the agency protects itself, not the students.
"The fact that this subject is being addressed is absolutely unconscionable",
Grijalva said. "However, due to the fact that this placement was approved by
FACE, it must be addressed and brought to the attention of those
concerned".
She urges that anyone having questions or concerns about the placement
of foreign exchange students should address them to Stanley Colvin ,
director of the Department of State office of exchange coordination at
ColvinSS@state.gov or Ms. Danielle Grijalva, CSFES at
DGrijalva@csfes.org. More information can be found by visiting the
organization's website at www.csfes.org.
Earlier this year, the Bush administration proposed new rules to screen host
families and to regulate the agencies that sponsor the nearly 28,000 high
school exchange students each year, nearly all of them minors.
There has been no requirement for a sponsor to report sexual abuse or
molestation cases to the federal government nor maintain records of such
cases but Colvin said that under the proposed new rules, all adult members
of host families and personnel in sponsoring groups will be screened
through the sex offender registry for criminal history. Sponsors would be
required to report any allegation of sexual misconduct to local law
enforcement agencies and to the State Department. If they fail to do so,
their program would be closed.
Exchange students would be advised during orientation of inappropriate
sexual contact and how to handle such occurrences.
The proposed rules were published in the Federal Register in August and
were expected to go into effect after 30 days of public comment. 10-30-05
Checks, New Rules
North County Gazette, New York state
October 30, 2005
From Perth, Australia to Plainwell, Mich., there is a pattern of abuse that is
making headlines around the world, according to the Committee for Safety
of Foreign Exchange Students, a group of concerned citizens in the United
States, a voluntary organization formed to protect the exchange students
that arrive in the thousands from all over the world to study in the U.S.
During their stay, the students share accommodations with a host family, or
a welcome family, and in numerous cases the students were reportedly
abused by their host parents.
Danielle Grijalva of Oceanside, CA, CSFES director, says that given the
recent events in Florida, the U.S. States Department of State should now be
requiring the student exchange industry to notify and seek the permission of
the natural parents when they plan to place their son or daughter in the
home of a parolee or convicted criminal. The form must include the
parolee's background and the Department of Corrections Number, when
applicable, and include signature lines for the natural parents granting full
permission.
Ms. Grijalva was referring to the situation of the placement of a 16-year-old
female Japanese exchange student in the home of a St. Johns County
family in Florida where the husband is a convicted felon. The man was
convicted for burglary in 1994 and sentenced to 12 years of prison,
including three years of prison in Georgia and nine years of parole. On one
occasion, the man was charged with sexual battery and rape in Florida He is
still on parole.
She said CSFES was notified of the situation last month.
Despite the husband being a convicted felon and a parolee, the family has
hosted high school Japanese girls for the past three years.
The foreign student was placed with the St. Johns County family by a
Gainesville company, the Foundation of Academic Cultural Exchange
(FACE). Executive director Richard Moss, who supervised the placement of
the Japanese student, admits that the firm rarely undertakes criminal
background checks of prospective families. Moss said that he did not feel it
was important to inform the natural parents of the fact that their daughter
would be placed in the home where the host father is on parole until July,
2006. Furthermore, according to Ms. Grijalva, Moss did not notify the
Japanese foreign partner of the conditions of this placement of its student.
When CSFES brought its concerns to the attention of the Department of
State, Stanley Colvin informed Ms. Grijalva that the natural parents had
since been notified and are perfectly fine with the knowledge that their
daughter is living in the home of a parolee. He further stated to Ms. Grijalva
that the 144 months the host father spent in prison and the nine counts
against him was for a "minor run-in with the law." When Mr. Colvin's
rationale was questioned by an overseas expert, he responded rudely on
the lines that it was none of her business.
Ms. Grijalva said that what concerns CSFES is the effect this will this have
on future placements of foreign exchange students. United States parents
who are contemplating sending their son or daughter abroad should ensure
that the student exchange agency does not place their children with hosts
who have a criminal background. Much seems to depend on the integrity of
the student exchange organization, but our experience has been that when
things go wrong, the agency protects itself, not the students.
"The fact that this subject is being addressed is absolutely unconscionable",
Grijalva said. "However, due to the fact that this placement was approved by
FACE, it must be addressed and brought to the attention of those
concerned".
She urges that anyone having questions or concerns about the placement
of foreign exchange students should address them to Stanley Colvin ,
director of the Department of State office of exchange coordination at
ColvinSS@state.gov or Ms. Danielle Grijalva, CSFES at
DGrijalva@csfes.org. More information can be found by visiting the
organization's website at www.csfes.org.
Earlier this year, the Bush administration proposed new rules to screen host
families and to regulate the agencies that sponsor the nearly 28,000 high
school exchange students each year, nearly all of them minors.
There has been no requirement for a sponsor to report sexual abuse or
molestation cases to the federal government nor maintain records of such
cases but Colvin said that under the proposed new rules, all adult members
of host families and personnel in sponsoring groups will be screened
through the sex offender registry for criminal history. Sponsors would be
required to report any allegation of sexual misconduct to local law
enforcement agencies and to the State Department. If they fail to do so,
their program would be closed.
Exchange students would be advised during orientation of inappropriate
sexual contact and how to handle such occurrences.
The proposed rules were published in the Federal Register in August and
were expected to go into effect after 30 days of public comment. 10-30-05