Reif v. Cal. Congress of Parents CA4/2

• Court: California Court of Appeal
• Decided: September 17, 2014
• Docket: E056902
• Status: Unpublished

Opinion

Filed 9/17/14 Reif v. Cal. Congress of Parents et al. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

RACHEL REIF,

Plaintiff and Appellant, E056902

v. (Super.Ct.No. RIC206139)

CALIFORNIA CONGRESS OF OPINION PARENTS, TEACHERS, AND STUDENTS, INC. et al.,

Defendants and Appellants;

MARILYN ORENS,

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.

Dismissed.

Cihigoyenetche, Grossberg & Clouse, Anthony C. Ferguson and Richard R.

Clouse, for Defendants and Appellants and Defendant and Respondent.

Walker Trial Lawyers LLP, Barry M. Walker and Amy M. Oakden. for Plaintiff

and Appellant Rachel Reif.

1 Rachel Reif (plaintiff) was terminated from her position as a Health

Educator/Health Services Assistant for the Riverside County Department of Public

Health, Injury Prevention Services—Safe Routes to School (“SRTS”) program. She then

brought suit against California Congress of Parents, Teachers and Students, Inc. (PTA),

Sandra Ramirez (Ramirez), Marilyn Orens (Orens), Sherri Power (Power), and Lauri

Byers (Byers) (collectively, defendants), alleging four causes of action: defamation, as

well as intentional and negligent infliction of emotional distress against all defendants,

and negligence (failure to supervise) against PTA only.

The present appeal and cross-appeal arise from the trial court’s order granting in

part and denying in part defendants’ special motion to strike the complaint as a strategic

lawsuit against public participation (anti-SLAPP motion) pursuant to Code of Civil

Procedure1 section 425.16 (the anti-SLAPP statute). The court granted the motion only

with respect to Orens, striking the claims asserted against her. The motion was denied

with respect to all remaining defendants.

Defendants (with the exception of Orens) appeal the partial denial of their anti-

SLAPP motion, contending the court erred when it determined the statements allegedly

made by Byers, Ramirez, and Power were not protected under the anti-SLAPP statute.

Plaintiff cross-appeals the partial grant of the motion with respect to Orens, contending

the trial court erred by treating her alleged statements as protected under the anti-SLAPP

statute. We would have affirmed in part and reversed in part the trial court’s order,

1All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

2 finding that defendants’ anti-SLAPP motion should have been granted with respect to all

defendants. However, after this case was fully briefed, our tentative opinion mailed to

the parties, and oral argument had been scheduled at the request of plaintiff and appellant,

we received requests for dismissal of the appeals. We therefore dismiss the appeals.

I. FACTS AND PROCEDURAL BACKGROUND2

In 2008, plaintiff became president of the PTA chapter at Mark Twain Elementary

School in Riverside. In the fall of 2009, after a transition from one PTA treasurer to

another, it was determined that plaintiff had received certain reimbursements in error, and

there were also some missing receipts.3 Plaintiff attributes these mistakes to accounting

errors by the former treasurer, and contends that she returned all money mistakenly paid

to her (about $800 total). Nevertheless, the principal of Mark Twain Elementary School

asked plaintiff to step down as PTA president, stating that she had been directed to make

this request by the 23rd District PTA. Plaintiff resigned, as requested, without conceding

any wrongdoing.

The resignation did not, however, put an end to the matter. After her resignation,

plaintiff alleges Power—who had preceded plaintiff as PTA president at Mark Twain

Elementary, and who had first brought the mistaken payments to plaintiff’s attention—

2We derive our summary of facts from the complaint and from the evidence submitted in support of and against the anti-SLAPP motion.

3 The complaint places the date of these events as fall of 2008, but plaintiff’s declaration submitted in support of her opposition to defendants’ anti-SLAPP motion indicates fall 2009. Given the further information that these events occurred in plaintiff’s “second term as PTA President,” it appears fall of 2009 is more probably the correct date. In any case, the date is not material to the substantive issues raised by the parties.

3 spread rumors about plaintiff’s purported financial misconduct, including stealing from

the PTA.4 In a November 2009 meeting with PTA representatives—Byers, who was then

the PTA Riverside Council President, participated, among others—plaintiff asked for an

opportunity to formally clear her name; however, no charges were ever filed, nor any

formal proceeding of any sort held.

Several years later, in January 2012, plaintiff was hired by SRTS program to serve

as a health educator/health services assistant. On February 20, 2012, plaintiff made a

presentation at a meeting held at Jefferson Elementary School about the SRTS program,

and in particular about a new barcode system for tracking children who walk or ride their

bicycles to school. In addition to plaintiff’s presentation, the meeting included a raffle to

“persuade more volunteers to attend the meeting,” the prizes for which (an iPod and

digital camera) had been donated by the Jefferson Elementary principal. Plaintiff

characterizes the meeting as “a success,” leaving plaintiff and her coworkers, as well as

the principal of Jefferson Elementary, “excited” about the new program, which was

projected to start a few weeks later, on March 7, 2012.

Before the new system could be implemented, however, defendants allegedly

made certain statements that resulted in plaintiff’s termination. Plaintiff contends Power

and Ramirez told Orens, then the Riverside Council PTA president, that plaintiff had

embezzled money from the PTA and as a result had been “involved with the police.”

4 It should be noted that these alleged statements by Byers in 2009 are apparently pleaded as background information, and not as the basis for any claim. Though allegations relating to the events of 2009 are incorporated by reference into plaintiff’s causes of action, the statements that are the explicitly pleaded basis for plaintiff’s claims are those from February 2012, described below.

4 Orens conveyed those statements to plaintiff’s supervisor, Gail Carlson, in a February 21,

2012, phone call, and indicated that PTA and Riverside County Unified School District

would not support the SRTS program if plaintiff continued to be involved.

Additionally, plaintiff contends that Byers contacted the Jefferson Elementary

School principal conveying the same information: that plaintiff had embezzled money

from the PTA and as a result had been “involved with the police.” On February 22, 2012,

plaintiff’s supervisor allegedly learned that the principal, who previously had been

actively supportive of the program, had been “instructed” by Byers and the 23rd District

PTA not to participate in the SRTS program if plaintiff was involved.

Plaintiff explained to her supervisor, Gail Carlson, her perspective on the events

that led to her resignation as PTA president and the rumors that had spread after her

resignation. Plaintiff also explained that no formal charges had ever been brought, police

had never been involved, and that there had been no formal proceeding of any sort in

which she could defend herself or clear her name. Nevertheless, on February 28, 2012,

plaintiff was terminated because she was not able to work effectively with the schools

and, according to the declaration of her supervisor, “as a direct result of the information

received from representatives of the PTA.”

Plaintiff’s complaint, alleging four causes of action, was filed on April 24, 2012.

Three causes of action—the first, third, and fourth, for defamation, intentional infliction

of emotional distress, and negligent infliction of emotional distress, respectively—are

asserted against all defendants. Plaintiff’s second cause of action, for “Negligence

(Failure To Supervise),” is asserted only against PTA.

5 Defendants’ anti-SLAPP motion was filed on June 5, 2012. After a hearing on

July 12, 2012, in a written order filed August 6, 2012, the court granted the motion with

respect to Orens and struck the claims asserted against her. The court found that Orens’s

alleged statements were protected under the anti-SLAPP statute, and there was no

likelihood of success on the merits due to the litigation privilege. The court denied the

motion in all other respects, finding the statements alleged to have been made by other

defendants not to be protected under the anti-SLAPP statute.

II. DISCUSSION

A. Overview of Anti-SLAPP Motions

Courts construe the anti-SLAPP statute broadly to protect the constitutional rights

of petition and free speech. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local

Hospital Dist. (2006) 39 Cal.4th 192, 199.) In ruling on an anti-SLAPP motion, the trial

court conducts a two-part analysis: the moving party bears the initial burden of

establishing a prima facie case that the plaintiff's cause of action arose from the

defendant's actions in the furtherance of the rights of petition or free speech. (§ 425.16,

subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If

the moving party meets its burden, the burden shifts to the plaintiff to establish a

probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Flatley v.

Mauro (2006) 39 Cal.4th 299, 314 (Flatley).)

A defendant meets its threshold burden of demonstrating that a cause of action

arises from protected activity by showing that the act or acts underlying the claim fit one

or more of the four categories described in section 426.16, subdivision (e). (Navellier v.

6 Sletten (2002) 29 Cal.4th 82, 88.) These categories include “any written or oral statement

or writing” that is “made before a legislative, executive, or judicial proceeding, or any

other official proceeding authorized by law” (§ 425.16, subd. (e)(1)), “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” (id., subd. (e)(2)), or

“made in a place open to the public or a public forum in connection with an issue of

public interest” (id., subd. (e)(3)), as well as “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” (id., subd. (e)(4)).

“‘“A plaintiff cannot frustrate the purposes of the SLAPP statute through a

pleading tactic of combining allegations of protected and nonprotected activity under the

label of one ‘cause of action.’” [Citation.] Conversely, a defendant in an ordinary

private dispute cannot take advantage of the anti-SLAPP statute simply because the

complaint contains some references to speech or petitioning activity by the defendant.

[Citation.] [Thus] it 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.’ [Citation.]” (Raining Data

Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1369 (Raining Data Corp).)

Additionally, “a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting,

through artifices of pleading, to characterize an action as a garden variety tort claim

7 when in fact the liability claim is predicated on protected speech or conduct. [Citation.]”

(Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 (Ramona).)

“‘Review of an order granting or denying a motion to strike under section 425.16

is de novo. [Citation.] We consider “the pleadings, and supporting and opposing

affidavits . . . upon which the liability or defense is based.” [Citation.] However, we

neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept

as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s

evidence only to determine if it has defeated that submitted by the plaintiff as a matter of

law.” [Citation.]’ [Citation.]” (Flatley, supra, 39 Cal.4th at pp. 325-326.)

The plaintiff's evidence in support of its showing on the second part of the anti-

SLAPP analysis must be sufficient to support a judgment in its favor if proved at trial.

(Lam v. Ngo (2001) 91 Cal.App.4th 832, 845.) Under section 425.16, the merits of the

lawsuit are evaluated “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.)

Plaintiff incorrectly asserts we should instead perform an analysis similar to that on

demurrer, accepting the allegations of the complaint as true and viewing them in the light

most favorable to plaintiff. But it is well established that “a plaintiff opposing an anti-

SLAPP motion cannot rely on allegations in the complaint, but must set forth evidence

that would be admissible at trial.” (Overstock.com, Inc. v. Gradient Analytics, Inc.

(2007) 151 Cal.App.4th 688, 699 (Overstock).) Even if the complaint in this case were

verified—it is not—the allegations therein would be insufficient to satisfy the second step

of the anti-SLAPP analysis. (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th

8 418, 426.) The pleadings are relevant to the first step of the analysis, that is, determining

whether the causes of action that are the subject of the anti-SLAPP motion arise from

protected activity. (See, e.g., Garretson v. Post (2007) 156 Cal.App.4th 1508, 1522

(Garretson) [Fourth Dist., Div. Two] [analyzing “pleadings and other related documents”

to determine whether cause of action arose from protected activity].)

B. Analysis

The gravamen of each of the causes of action asserted in the complaint is that

plaintiff was injured by statements made by Orens, Power, Ramirez, and Byers. (See

Raining Data Corp., supra, 175 Cal.App.4th at p. 1369 [“it is the principal thrust or

gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP

statute applies . . . .’”].) The first cause of action for defamation obviously does so most

directly. Plaintiff’s third and fourth causes of action, for intentional and negligent

infliction of emotional distress, too, assert only claims of injury from the publication of

the statements by the individual defendants. Plaintiff’s claims against the PTA—

including the second cause of action for negligent supervision asserted only against the

PTA, as well as the remaining three causes of action asserted against “all defendants”—

all rest on the theory that the PTA is responsible, one way or another, for the injurious

statements made by the individual defendants. No allegations that the PTA published any

statements of its own are included.5

5 The trial court remarked that it saw “no reason why the second cause of action for negligent supervision falls under any portion of the anti-SLAPP statute.” But we do: the gravamen of the negligent supervision cause of action is that the individual defendants made certain statements that harmed plaintiff, and that the PTA is responsible [footnote continued on next page] 9 Our analysis of whether the anti-SLAPP statute applies, therefore, must begin with

analysis of whether the alleged statements by each of the individual defendants fall

within subdivision (e) of section 425.16. We will then turn separately to the second

prong of the SLAPP analysis, probability of success.

1. Statements by Orens to Plaintiff’s Supervisor

The trial court, relying on Lee v. Fick (2005) 135 Cal.App.4th 89 (Lee), found that

the statements by Orens to plaintiff’s supervisor are protected activity under section

425.16, subdivision (e)(1). We agree with the trial court’s analysis, and expand upon it

below, finding the statements protected under both subdivision (e)(1) and, in the

alternative, subdivision (e)(4).

There is no question that the plaintiff’s former employer is an official agency, as a

subdivision of the Riverside County government. Indeed, plaintiff has not challenged the

trial court’s finding that the County possesses the “quasi-judicial power” that is one of the

possible bases for considering any proceedings it might conduct to be “official

proceedings” in the meaning of section 425.16, subdivision (e)(1). (See Lee, supra, 135

Cal.App.4th at pp. 96-97)

[footnote continued from previous page]

for those statements. (See Raining Data Corp., supra, 175 Cal.App.4th at p. 1369.) If the statements themselves are protected under the anti-SLAPP statute as to the defendant who uttered the statements, it follows that any claim arising from the statements as to any defendant would be subject to an anti-SLAPP motion. Plaintiff’s negligent supervision claim is predicated on what defendants have contended is protected speech, though the claim is pleaded as the garden variety tort of negligent supervision; it is subject to an anti- SLAPP motion on that basis. (See Ramona, supra, 135 Cal.App.4th at p. 519.) We address below whether the statements are in fact protected speech.

10 Plaintiff does contend that Orens’s statements were not made as part of an

“official proceeding” in the meaning of the anti-SLAPP statute. We disagree. At the

time the statements were made, there was no ongoing investigation of plaintiff, but

“communications to an official agency intended to induce the agency to initiate action are

part of an ‘official proceeding,’” as that term is in the anti-SLAPP statute. (Lee,

supra,135 Cal.App.4th at p. 96; see Brody v. Montalbano (1978) 87 Cal.App.3d 725,

732-733.) Moreover, “official proceeding” should not be equated with “formal hearing”:

matters that are resolved informally may equally be “official proceedings.” (Lee, supra,

at p. 97.) Such official proceedings may include, at least in some circumstances, those

leading to termination of an employee by a public agency, among other things.6 (See,

e.g., id. at p. 91 [involving termination of high school coach by school officials].)

Orens’s statements to plaintiff’s supervisor, as alleged in the complaint, did not

include an express request to initiate official proceedings to remove plaintiff from her

position. But there is “no requirement” that a communication “expressly request an

investigation, hearing or that the agency take any particular action” to fall within the

protection of the anti-SLAPP statute. (Lee, supra, 135 Cal.App.4th at p. 97.) And the

assertion that the PTA and Riverside County Unified School District would not support

6 Plaintiff’s assertion that Lee is “expressly limited to complaints made by parents to school authorities about a teacher or principal in the performance of his or her official duties” is incorrect. Rather, the holding in Lee is an application of general principles— and in particular the principle that “communications to an official agency intended to induce the agency to initiate action are part of an ‘official proceeding’” (Lee, supra, 135 Cal.App.4th at p. 96)—that have long been applied in a broad range of situations. (See, e.g., Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1390 [collecting some of the “many cases” applying the principle].)

11 the SRTS program if plaintiff continued to be involved is, among other things, a nearly-

direct request to remove plaintiff from any involvement.

In short, Orens’s statements to plaintiff’s supervisor were communications to an

official agency, which in essence ask the county to initiate any proceedings authorized by

law—formal or informal—that might be necessary to remove plaintiff from any

participation in the SRTS program, and explain the reasons why she believed such action

was necessary. Thus, the statements are protected acts under section 425.16, subdivision

(e)(1).

In addition, even if the statements were not protected under subdivision (e)(1) of

section 425.16, they would be protected under subdivision (e)(4), as “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.” To qualify

for protection under subdivision (e)(4), the issue must be one of concern to a substantial

number of people, not merely a private controversy of interest to the speaker and a

relatively small, specific audience. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122,

1132.) At the same time, the issue must not be one of broad, amorphous public interest,

but rather one identifiable in time and place, and the challenged statements must bear a

significant relationship to the asserted public issue. (Id. at pp. 1132-1133.) A public

issue has been found where statements “concerned a person or entity in the public eye

[citations], conduct that could directly affect a large number of people beyond the direct

participants [citations] or a topic of widespread, public interest [citations].” (Rivero v.

American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105

12 Cal.App.4th 913, 924 (Rivero).) Where the issue is of interest only to a limited but

definable portion of the public such as a private group, organization, or community, “the

constitutionally protected activity must, at a minimum, occur in the context of an ongoing

controversy, dispute or discussion, such that it warrants protection by a statute that

embodies the public policy of encouraging participation in matters of public

significance.” (Du Charme v. International Brotherhood of Electrical Workers (2003)

110 Cal.App.4th 107, 119 (Du Charme), fn. omitted.)

We agree with plaintiff that “whether or not [she] embezzled $800 from the PTA

over three years ago” is not a public issue or an issue of public interest. We disagree,

however, with plaintiff’s framing of the issue. Orens’s comments to plaintiff’s supervisor

were made in connection with an issue of public interest, namely, whether and under

what conditions the PTA and Riverside Unified School District would support and

participate in a Riverside County program intended for the benefit of schoolchildren.

This issue is of widespread interest at least to Riverside public school students and their

parents, specifically, as well as other citizens who may take an interest in the public

schools and the safety of children in Riverside County, or the expenditure of public funds

more generally. We do not view this as such a narrow subsection of the public that any

additional showing of an “ongoing controversy, dispute or discussion” is necessary. (See

Du Charme, supra, 110 Cal.App.4th at p. 119.) But in any case, even if the program had

not previously been the subject of an ongoing controversy, as plaintiff emphasizes, it was

an ongoing topic of public discussion. As the complaint alleges, before Orens made her

statements, plaintiff presented at a public meeting at Jefferson Elementary school to

13 publicize and advocate for the program, including efforts to draw in more “volunteers” to

participate. Indeed, it was apparently this public discussion of the SRTS program that

brought plaintiff’s participation to defendants’ attention, leading to the alleged statements

that form the basis of this lawsuit. We conclude that Orens’s statements qualified for

protection under subdivision (e)(4) of section 425.16.

In support of the contrary conclusion, plaintiff analogizes to Rivero. Rivero,

however, is distinguishable on its facts. In Rivero, the defendant union published

complaints about a supervisor that included charges of petty theft, nepotism, acceptance

of bribes, and abusive treatment of employees (janitors at a public university). (Rivero,

supra, 105 Cal.App.4th at pp. 916-917) The Court of Appeal upheld the denial of the

union’s anti-SLAPP motion, which had sought to strike the supervisor’s claims for libel

and slander, among others. (Rivero, supra, at p. 930.) The Court of Appeal reasoned that

the statements at issue were made in connection with the supervisor’s allegedly improper

treatment of a staff of eight individuals, which was not in and of itself a matter of public

interest. (Id. at p. 925.) The court found no sufficient connection between the statements

and broader issues that might be of public interest, such as significant waste or abuse of

funds, or a larger union dispute, as opposed to an “isolated incident.” (Id. at pp. 925-

928.)

The connection to a larger public issue that was missing in Rivero is present in this

case. To be sure, not every petty theft of funds from a PTA, even by someone who later

becomes a public employee, is a public issue. Orens’s statements about plaintiff’s

purported misuse of PTA funds, however, were made in connection with the public issue

14 of whether the PTA and Riverside Unified School District would participate in a

Riverside County initiative for the benefit of public school students. As such, the

statements are entitled to protection under section 425.16, subdivision (e)(4).

Since Orens’s statements were protected activity under section 425.16,

subdivisions (e)(1) and (4), the burden therefore shifted to plaintiff to establish a

probability that she would prevail on the merits. (§ 425.16, subd. (b)(1); Flatley, supra,

39 Cal.4th at p. 314. We will address plaintiff’s attempt to meet that burden in

subsection 4, below.

2. Statements by Power and Ramirez to Orens

The trial court found that none of the four categories of protected activity set out

in subdivision (e) of section 425.16 apply to the alleged statements by Power and

Ramirez to Orens, the substance of which Orens then passed on to plaintiff’s supervisor.

We disagree. Power’s and Ramirez’s statements are protected under subdivisions (e)(1)

and (e)(4) of the anti-SLAPP statute.

First, the protections of the anti-SLAPP statute—specifically, subdivision (e)(1)—

extend to communications among interested parties preparatory to requesting initiation of

official proceedings. “In order to be effective in pressing their complaints to school

authorities, parents must be free to communicate with each other without fear of liability.

[Citation.] Such communications between interested parties are protected by the

privilege. [Citation.]” (Lee, supra, 135 Cal.App.4th at p. 97) “To accomplish the

purpose of judicial or quasi-judicial proceedings, it is obvious that the parties or persons

interested must confer and marshal their evidence for presentation at the hearing.” Pettitt

15 v. Levy (1972) 28 Cal.App.3d 484, 490 [discussing litigation privilege].) The right to do

so “unchilled by the thought of subsequent judicial action” is part of the “fundamental”

right to make such preparations. (Id. at pp. 490-491.)

In accordance with the above principles, if Power and Ramirez were not

consulting with Orens in preparation for initiation of official proceedings, but merely

relaying gossip (which Orens then acted on by her own initiative), subdivision (e)(1) of

the anti-SLAPP statute would not apply. But the circumstances alleged in the complaint

do not lend themselves to the conclusion that Power and Ramirez were merely gossiping

when they relayed information about plaintiff’s purported theft of PTA funds. Power and

Ramirez both are or have been not only members, but leaders in the PTA. Their

communications with Orens led immediately to Orens’s communications with plaintiff’s

supervisor conveying the request for initiation of official proceedings to remove plaintiff

and the information that the PTA would not participate in the SRTS program unless

plaintiff was removed. We conclude, therefore, that defendants made an adequate

showing the statements were communications among interested parties preparatory to a

request to initiate official proceedings, and thus protected under subdivision (e)(1) of the

anti-SLAPP statute.

The communications by Power and Ramirez to Orens are also protected under

subdivision (e)(4) of the anti-SLAPP statute. The same reasons discussed above with

respect to Orens’s statements to plaintiff’s supervisor apply to support the conclusion

Power and Ramirez were engaging in “conduct in furtherance of the exercise of the

constitutional right of petition or the constitutional right of free speech in connection with

16 a public issue or an issue of public interest” when they made their alleged statements to

Orens. (§ 425.16, subd. (e)(4).) As such, the burden shifted to plaintiff to show a

likelihood of success; we discuss that issue below, in section (B)(4).

3. Statements by Byers to Principal of Jefferson Elementary

The trial court found that none of the four categories of protected activity set out

in subdivision (e) of section 425.16 apply to the alleged statements by Byers to the

principal of Jefferson Elementary. Again, we disagree. Subdivision (e)(4) applies to

these statements, even though subdivision (e)(1) does not.

Unlike the statements discussed above, those by Byers to the principal of Jefferson

Elementary are not entitled to protection under subdivision (e)(1) of section 425.16,

because Byers was not asking for the principal to initiate any official proceedings. The

principal was not plaintiff’s employer, and had no authority to initiate any sort of

proceedings with respect to plaintiff’s participation in the SRTS program.

Nevertheless, the statements by Byers to the principal are protected under

subdivision (e)(4) of section 425.16. Again, the allegations of the complaint establish

that she was not merely gossiping about plaintiff allegedly embezzling money from the

PTA. Rather, she is alleged to have “instructed” the principal not to participate in the

SRTS program if plaintiff was involved. As such, any statements she made about

plaintiff were made in connection with a public issue—namely, whether and under what

conditions the school should participate in the SRTS program—and fell within the

protections of the anti-SLAPP statute.

17 4. Probability of Prevailing on the Merits

The trial court never reached the second step in the SLAPP analysis except with

respect to Orens, whose statements it found to be protected by the litigation privilege,

making it impossible for plaintiff to show probability of success as to claims against

Orens. As discussed above, we disagree with the trial court’s conclusions regarding

whether the statements by defendants other than Orens fell within the protections of the

anti-SLAPP statute, so we must consider plaintiff’s evidence as to all defendants. We

can decide the issue without remand to the trial court for a decision in the first instance,

because it is a question subject to independent review. (See Roberts v. Los Angeles

County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616; ComputerXpress, Inc. v.

Jackson (2001) 93 Cal.App.4th 993, 999, 1010 [Fourth Dist., Div. Two].)

First, to the extent the statements discussed above fall within subdivision (e)(1) of

Code of Civil Procedure section 425.16, they also fall within the ambit of the litigation

privilege in Civil Code section 47, subdivision (b), precluding plaintiff from

demonstrating any probability of success. The litigation privilege bars tort causes of

action other than claims of malicious prosecution based on privileged publications or

broadcasts, including those made in “official proceeding[s] authorized by law.” (Civil

Code, § 47, subd. (b); Flatley, supra, 39 Cal.4th at pp. 321-322 & fn. 9). Although some

courts—and defendants in their briefing on appeal—have broadly characterized the anti-

SLAPP statute and the litigation privilege codified in Civil Code section 47 as

“congruent” or “coextensive” (see, e.g., Department of Fair Employment & Housing v.

1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1288, fn. 23), that

18 is not a complete statement of the law. The California Supreme Court in Flatley, supra,

39 Cal.4th at pp. 322-323, stated that the scope of protection under the two statutes is not

identical and, although “[t]he language in [Code of Civil Procedure] section 425,

subdivision (e)(1) and (2) parallels the description of privileged communications in Civil

Code section 47, subdivision (b), . . . this does not necessarily mean the two statutes are

coextensive or congruent in scope as applied.” (Garretson, supra, 156 Cal.App.4th at p.

1518 [discussing Flatley].) In Flatley, for example, the Supreme Court concluded that,

even if certain extortionate communications were protected under the litigation privilege,

it would not be “consistent with the language or the purpose of the anti-SLAPP statute to

protect such threats.” (Flatley, supra, at p. 322.) Nevertheless, plaintiff has not argued

that subdivision (e)(1) and the litigation privilege are different in scope as applied to the

facts of this case. To the contrary, plaintiff concedes that if Code of Civil Procedure

section 425.16, subdivision (e)(1) applies to the statements, the “absolute privilege under

Civil Code section 47 would also apply.” Nor do we see any reason to conclude

otherwise.

Second, plaintiff’s evidentiary showing is inadequate with respect to all of her

asserted causes of action. Plaintiff’s claims are all predicated on the notion that each of

the individual defendants published certain defamatory statements about plaintiff in

February 2012, namely, that plaintiff had embezzled money from the PTA and “as a

result had been involved with the police.” Her evidence consists of two declarations; one

from plaintiff, the other from her former supervisor at the SRTS program, Gail Carlson.

Nothing in these declarations, however, establishes that any defendant published any of

19 the alleged defamatory statements. Plaintiff’s own declaration contains the assertion that

Power had “spread rumors” about her in 2009, but nothing about any statements Power or

the other defendants may have made in 2012.7 Gail Carlson avers that plaintiff “was

terminated from her employment . . . as a direct result of the information received from

representatives of the PTA,” but her declaration does not specifically identify any of the

“representatives of the PTA,” nor does it include any description of the “information” she

received from them. There is nothing in either declaration about statements allegedly

made to the principal of Jefferson Elementary School; only the information that Ms.

Carlson learned on February 22, 2012, that the school’s principal would no longer

participate in the program, with no explanation as to why. Thus, there is simply no basis

in the evidence presented to conclude that anyone uttered the defamatory statements

alleged in the complaint, let alone any of the defendants. And, as noted above,

admissible evidence is required for plaintiff to show a probability of success; she cannot

fill in lacunae in the declarations with facts alleged in the complaint. (Overstock, supra,

151 Cal.App.4th at p. 699.)

In short, plaintiff has failed to show a probability of success with respect to any

cause of action, as asserted against any defendant. To the extent the defendant’s alleged

statements fall under the protection of subdivision (e)(1) of the anti-SLAPP statute, the

litigation privilege precludes any such showing. To the extent the statements fall under

the protection of subdivision (e)(4) of the anti-SLAPP statute, plaintiff’s evidence

7 To the extent plaintiff may intend to base any claim on statements dating from 2009, the applicable one-year statute of limitations would bar the claim. (§ 340, subd. (c).)

20 submitted in opposition to defendants’ motion is inadequate to establish a probability of

success. Defendants’ anti-SLAPP motion, therefore, should have been granted with

respect to all causes of action, as asserted against all defendants.

III. REQUEST FOR DISMISSAL

After this case was fully briefed and a tentative opinion had been drafted and

mailed to the parties, and after oral argument had been set, we received requests for

dismissal of the appeals.

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater

(2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for

unreasonable delay in notifying appellate court that parties had settled and dismissed the

underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “On

receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct

immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary.

Here, because the resolution of this case is fact specific, we grant the requests.

IV. DISPOSITION

The appeals are dismissed. The parties shall bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P.J. We concur:

RICHLI J.

MILLER J. 21