Gallant v. City of Carson

27 Cal. Rptr. 3d 318, 128 Cal. App. 4th 705, 2005 Cal. Daily Op. Serv. 3329, 2005 Daily Journal DAR 4481, 22 I.E.R. Cas. (BNA) 1377, 2005 Cal. App. LEXIS 617

• Court: California Court of Appeal
• Decided: April 20, 2005
• Docket: B176052
• Status: Published

Opinions

Opinion

MALLANO, J.

An employee of a city sued the city and two of its employees for defamation and wrongful termination, claiming she was fired and defamed for exposing corruption in the city’s bidding for trash collection. The defamation cause of action was stricken under the statute prohibiting strategic lawsuits against public participation (SLAPP) (Code Civ. Proc., § 425.16), and the employee appeals. We reverse because the employee “has established that there is a probability that [she] will prevail on the claim.” (Id., § 425.16, subd. (b)(1).) (All further statutory references are to the Code of Civil Procedure unless otherwise indicated.)

I

BACKGROUND

Ann Marie Gallant was general manager of the City of Carson. Her duties included overseeing the city’s waste disposal services. As she explained in a declaration filed in connection with the hearing on defendants’ special motion to strike under the anti-SLAPP statute: “On January 8, 2002, I received from Joyce Cagaanan, a Solid Waste Specialist who reported to me, a Facsimile dated January 2, 2002 from Robert Pryce to James Ambroso. . . . Pryce was at the time a contract attorney for the City of Carson. Ambroso was [an] executive representing [Browning-Ferris Industries of California, Inc.,] in the bid process concerning the Solid Waste Franchise Agreement for the City of Carson. Upon review of the fax, I realized that this was an unauthorized disclosure of Waste Management’s confidential bid. I immediately reported this to the City Manager, Jerome Groomes. Groomes instructed me not to advise, discuss, contact or inform the City Council as to the receipt of the facsimile. Groomes stated that he would handle it. I advised Groomes that the whole City Council needed to be advised of the facsimile, and if he did not do so, I had no choice but to do so. Within weeks of advising the City Council of the bid rigging issue, law enforcement agencies, including the FBI, conducted an investigation surrounding the illegal conduct of city officials. I was interviewed by the FBI, and told them the truth.” On September 17, 2003, Groomes told Gallant that she was being terminated.

Her declaration continued: “I learned from a number of subordinate employees in the Development Services Work Group that Groomes had spoken to staff members and community members and told them that I was terminated because I was incompetent. . . .

“. . . I have also learned that Sybil Brown, a community member of Carson, told other persons at a Boards and Commissions training on September 20, 2003, that she was told by Groomes that I was terminated because I was incompetent.

“. . . I was told by City Engineer Victor Rollinger, a managerial employee at the City of Carson, that in early 2003 during the period Groomes was lobbying for my termination, Assistant City Manager George Penn approached Mr. Rollinger and told Mr. Rollinger I had done something illegal with respect to a purchase order.”

Although Gallant does not expressly state that she was not incompetent or deny doing anything illegal, the gist of her declaration is that she was terminated for reporting the misdeeds of Attorney Pryce to the city council and cooperating with the FBI regarding Pryce.

Gallant filed this suit for wrongful termination and defamation against the City of Carson and its city manager, Jerome Groomes, and assistant city manager, George Penn. With regard to her defamation claim, Gallant alleged that defendants “published false, unprivileged statements with malice, to non-interested third parties about Gallant. This statement included false and unprivileged accusations that Gallant was incompetent. The statements conveyed to Gallant’s co-workers and other members of the public that she was incompetent, a statement known at the time to be false.”

Defendants filed an anti-SLAPP motion, contending that (1) the alleged defamatory statements came within the scope of protected communications (see § 425.16, subd. (e)) and (2) Gallant could not demonstrate a probability of success on the merits (see id., subd. (b)(1)). Gallant filed opposition papers, disputing both points. By order dated May 12, 2004, the trial court granted the motion and dismissed the case. Gallant appealed.

n

DISCUSSION

Assuming for the sake of discussion that the anti-SLAPP statute applies here, we reverse because Gallant “has established that there is a probability that [she] will prevail on the claim.” (§ 425.16, subd. (b)(1).) By this we mean only that she has offered evidence, if credited at trial, demonstrating that she is likely to succeed.

The alleged statements—that Gallant is incompetent—are defamatory. “[T]he alleged defamatory statements are not protected if they imply an assertion of false objective fact. The statement that plaintiff ‘is an incompetent [employee] . . .’ implies a knowledge of facts which lead to this conclusion and further is susceptible of being proved true or false. . . . Since the statement implies that plaintiff is generally disqualified for [her] profession, it is defamatory if it is false. . . . Consequently, the trial court erred in finding this statement was not defamatory because of being an ‘opinion.’ ” (Gill v. Hughes (1991) 227 Cal.App.3d 1299, 1309 [278 Cal.Rptr. 306], citation omitted.)

Accordingly, the facts contained in Gallant’s declaration, if properly before the court as evidence, “establish[] that there is a probability that [she] will prevail on [her] claim [for defamation].” (§ 425.16, subd. (b)(1).)

Although defendants interposed evidentiary objections against Gallant’s declaration, they did not seek or obtain rulings on them at the hearing. Defendants therefore waived their objections under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [25 Cal.Rptr.2d 137, 863 P.2d 207] (Ann M.), superseded by statute on another point as stated in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, at pages 767-768 [107 Cal.Rptr.2d 617, 23 P.3d 1143]. In Ann M., the Supreme Court stated: “In the trial court, defendants made a series of objections to evidence submitted by Ann M. in opposition to the summary judgment motion. The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal.” (Ann M, supra, 6 Cal.4th at p. 670, fn. 1.)

The Ann M. rule, applied in the summary judgment context, also governs anti-SLAPP motions because the two types of proceedings have similar standards. As our Supreme Court recently stated: “[The anti-SLAPP statute] establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [25 Cal.Rptr.3d 298, 106 P.3d 958].) And as we stated at greater length in Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227 [118 Cal.Rptr.2d 313] (Schoendorf): “ ‘It is recognized, with the requirement [in the anti-SLAPP statute] that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions . . . and requires that the showing be made by competent admissible evidence within the personal knowledge of the declarant. . . . Averments on information and belief are insufficient. ... As in a motion for summary judgment, the pleadings frame the issues to be decided.’ . . .

“ ‘Generally, a party cannot simply rely on the allegations in its own pleadings, even if verified, to make the evidentiary showing required in the summary judgment context or similar motions .... The same rule applies to motions under [the anti-SLAPP statute]. Here, like motions under [the summary judgment statute], the pleadings merely frame the issues to be decided. Similarly, an averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim. . . . “An assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. . . . Such evidence must be admissible.” ’ ” (Schoendorf, supra, 97 Cal.App.4th at p. 236, quoting Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654, 656 [49 Cal.Rptr.2d 620], overruled on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 [124 Cal.Rptr.2d 507, 52 P.3d 685].)

The anti-SLAPP statute states that “[i]n making its determination [whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim], the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) The statute is silent as to the kind of evidence required of the plaintiff.

The summary judgment statute, on the other hand, provides that “[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court. . . .” (§ 437c, subd. (c).) And it further provides that “[supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Id.., subd. (d).)

In Schoendorf, we borrowed the evidentiary standards applicable to summary judgment motions and required that the plaintiff offer admissible evidence to substantiate her claim in opposition to an anti-SLAPP motion. Both types of proceedings require the trial court to assess the validity of the plaintiff’s claim on the merits, and the same evidentiary standards should therefore govern both. Applying those standards here, defendants’ objections to Gallant’s declaration are deemed waived and the admissibility standard for anti-SLAPP motions is met.

We are not alone in applying the Ann M. rule in reviewing a trial court’s decision on an anti-SLAPP motion. In Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005 [5 Cal.Rptr.3d 668], Division Seven of this court did just that, stating: “On appeal, [defendant] asks this court to consider his evidentiary objections to [plaintiff’s] declarations even though he concedes he did not obtain any ruling on the objections in the trial court. In connection with a summary judgment motion, ‘[t]rial courts have a duty to rule on evidentiary objections. Part of the judicial function in assessing the merits of a summary judgment or adjudication motion involves a determination as to what evidence is admissible and that which is not.’ . . . Where the trial judge fails to rule on objections to evidence presented at a summary judgment motion, the objections are deemed waived on appeal. . . . Accordingly, because a motion to strike [a SLAPP suit] is akin to a summary judgment motion . . . , in reviewing the trial court’s order denying the motion, we consider all the evidence presented by the parties.” (Id. at p. 1014, fh. 4, citations omitted.)

More recently, in Gallagher v. Connell (2004) 123 Cal.App.4th 1260 [20 Cal.Rptr.3d 673], Division Seven of this court held that, in opposing an anti-SLAPP motion, a plaintiff may show a probability of success on the merits where the supporting evidence is inadmissible but the defendant fails to make a proper objection. Although the summary judgment statute addresses the use of “admissible evidence” and objections, the anti-SLAPP statute does not. As Division Seven explained: “We recognize an argument could be made a court, in ruling on a SLAPP motion, should determine the admissibility of the plaintiff’s proffered evidence if the defendant at least raises the issue of admissibility even if she has not composed a technically sufficient objection. Allowing the plaintiff to defeat a SLAPP motion with evidence which supports the plaintiff’s cause of action but which would be inadmissible at trial defeats the purpose of the anti-SLAPP statute to provide ‘a fast and inexpensive unmasking and dismissal’ of meritless lawsuits. . . .

“We do not find this argument persuasive. We do not quarrel with the proposition the Legislature intended ‘ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target.” ’ But the Legislature also intended ‘to avoid jeopardizing meritorious lawsuits.’ Requiring the defendant to clearly state the specific ground of her objection to the plaintiff’s evidence maintains this balance between the interests of the defendant and the plaintiff.” (Gallagher v. Connell, supra, 123 Cal.App.4th at pp. 1268-1269, fns. omitted.) As one treatise has noted, “the ‘rule’ that objections that are not made are waived is found only in the summary judgment statute . . . but it is certainly observed in other situations in practice.” (Younger on California Motions (2004 ed.) § 2:51, p. 38.)

Further, an attorney’s obligation to request a ruling from the trial court—outside the summary judgment context—is long and well established. “Beginning in 1872 with People v. Sanford (1872) 43 Cal. 29, 32, the California Supreme Court has consistently held that when a judge fails to rule on evidentiary objections during a trial, they are deemed waived. . . . Ann M. [is] merely the application of the trial rule concerning waiver of evidentiary objections in the law and motion context.” (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784 [97 Cal.Rptr.2d 140], citations omitted (City of Long Beach).)

For example, the high court has stated: “If the trial court’s failure to hear or rule on [a] new trial motion appears to be inadvertent, the defendant must make some appropriate effort to obtain the hearing or ruling. . . . ‘ “[W]here the [trial] court, through inadvertence or neglect, neither rules nor reserves its ruling ... the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.” ’ ” (People v. Braxton (2004) 34 Cal.4th 798, 813 [22 Cal.Rptr.3d 46, 101 P.3d 994]; accord, 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 389, p. 482.)

In a case involving an evidentiary objection, the Court of Appeal held that “[ajlthough, when first offered, [the contract] was objected to on the ground that it was not binding on defendants, the trial court did not rule on the objection, but suggested instead, that a foundation be laid with respect to its identification. Counsel for defendants did not request a ruling nor did he press his objection when the offer was subsequently renewed. Under the circumstances the objection was abandoned and waived.” {Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 698 [39 Cal.Rptr. 64] (Fibreboard Paper Products).)

In Fibreboard Paper Products, the Court of Appeal based its decision on two Supreme Court cases, Goodale v. Thorn (1926) 199 Cal. 307 [249 P. 11] and Campbell v. Genshlea (1919) 180 Cal. 213 [180 P. 336]. In Goodale, the defendant was precluded, on appeal, from challenging the sustaining of an objection because, in the trial court, he failed to “mak[e] certain the meaning of the court’s ruling.” (Goodale, supra, 199 Cal. at p. 315.) In Campbell, the high court declined to consider whether certain testimony was properly admitted because “there seems to have been no ruling upon the objection.” (Campbell, supra, 180 Cal. at p. 220.)

And the obligation to request a ruling does not impose an undue burden on counsel. He or she need only be diligent, for example, by making an oral request for a ruling. (See Younger on California Motions, supra, § 8:55, p. 250; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2004) ][ 8:3334.1, p. 8G-10; City of Long Beach, supra, 81 Cal.App.4th at pp. 782-784.) Thus, “[i]f evidentiary objections have previously been filed in writing, it is [counsel’s] job (tactfully) to remind the court at the hearing of the necessity to rule on [the objections].” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2004) 1 10:210.3, p. 10-75.) In this way, the objections are preserved for appeal. (See Younger on California Motions, supra, § 8:55, p. 250; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, f 8:3334.1, at p. 8G-10; City of Long Beach, supra, 81 Cal.App.4th at pp. 784—785.)

Finally, as for the merits of Gallant’s suit, defendants argue that she cannot prevail because their alleged statements were privileged as a matter of law. We disagree.

Defendants contend the alleged defamatory statements were “absolutely privileged” (Civ. Code, § 47, subd. (b)) because they were spoken at a city council meeting when Groomes, the city manager, stated that Gallant’s termination was in the best interest of the city. But that is not the defamatory statement upon which Gallant relies, namely, comments made to “staff members and community members” that she was incompetent.

In addition, defendants argue that the alleged defamatory statements are “qualifiedly privileged” (Civ. Code, § 47, subd. (c)) because they were made without malice to interested persons. But Gallant’s declaration establishes the probability that she will prove malice. Groomes told her not to contact the city council about Pryce’s misdeeds. She did so anyway. A secretary for the City told Gallant that Groomes had left a message that Gallant’s subpoenaed grand jury testimony had been continued—when in fact it had not—in an effort to prevent Gallant from appearing before the grand jury. Groomes attempted to coerce Gallant into signing a voluntary resignation. When that failed, Groomes terminated Gallant, notwithstanding the city council’s directive not to do so. Groomes falsely told staff members and community members that Gallant was fired because she was incompetent. Penn told another city employee that Gallant had done something illegal with respect to a purchase order.

We therefore reverse.

Ill

DISPOSITION

The order is reversed. Plaintiff is entitled to costs on appeal.

Spencer, P. J., concurred.