Filed 3/23/15 San Diego County Credit Union v. Roark CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO COUNTY CREDIT UNION, D065117
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2011-00100322- CU-DF-CTL) CARLTON ROARK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Joel
Pressman, Judge. Affirmed.
Yee & Belilove, Steven R. Yee, Steve R. Belilove, Ross L. Hollenkamp; Higgs,
Fletcher & Mack and John Morris for Defendant and Appellant.
Sheppard, Mullin, Richter & Hampton, Shannon Z. Petersen, Travis J. Anderson
and Karin Dougan Vogel for Plaintiff and Respondent. Defendant and appellant Carlton Roark appeals the order denying his anti-SLAPP
motion brought under Code of Civil Procedure section 425.161 to strike the first, second
and fourth causes of action for defamation per se, defamation per quod and breach of
contract, respectively (sometimes, challenged causes of action), filed against him by
plaintiff and respondent San Diego County Credit Union (SDCCU). Roark, a former
employee of SDCCU, contends the court erred in denying his anti-SLAPP motion
because there allegedly is no evidence linking him to myriad statements accusing
SDCCU and, among others, its CEO, Teresa Halleck (sometimes collectively SDCCU),
of stealing money, fraud, bribery, discrimination and financing gay pornography.
The court found Roark satisfied his initial burden to show the challenged causes of
action arose from protected activity within the meaning of section 425.16, subdivision
(b). However, the court also found SDCCU satisfied its burden to show a probability of
prevailing on each of the challenged causes of action and, thus, denied the motion. As
we explain, we affirm the order denying Roark's anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Operative Complaint
SDCCU employed Roark from 2003 until mid-August 2012, when SDCCU laid
off Roark and other SDCCU employees/officers. At the time of separation from
SDCCU, Roark was vice president, business lending officer. Pursuant to the separation
1 All statutory references are to the Code of Civil Procedure unless noted otherwise. Section 425.16 is commonly referred to as the anti-SLAPP statute. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568.) SLAPP is an acronym for "'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
2 agreement and general release of claims (separation agreement), Roark received a
severance package from SDCCU worth about $85,000.2 Roark was subsequently
employed by defendant North Island Financial Credit Union (North Island).3
SDCCU's operative complaint alleges that in late December 2011, an individual
later identified as Roark began a "campaign of defamation and harassment against
SDCCU and its officers, directors and employees. Roark . . . disseminated [his]
defamatory statements online by creating blogs, posting on consumer review websites,
and emailing customers and employees of SDCCU. Roark . . . also sent defamatory
emails to state and federal regulators falsely accusing SDCCU of fraud and illegal acts.
These false accusations . . . harmed SDCCU's business reputation and otherwise caused
damage, including time and effort responding to regulatory inquires and inspections
provoked by the defamatory statements."
The operative complaint further alleged that to avoid detection, Roark
"purposefully used an email encryption service called Tor Mail. Tor Mail uses a network
of domestic and offshore Internet Protocol addresses to send untraceable encrypted
messages and information over the Internet." SDCCU's operative complaint listed the
defamatory statements in chronological order.
2 At the time Roark received the severance package, SDCCU still had not identified the individual or individuals responsible for the defamatory statements. SDCCU did not learn Roark was allegedly responsible for making such statements until mid-2013.
3 SDCCU's operative complaint asserted causes of action against North Island for misappropriation of trade secrets and unfair competition. However, neither North Island nor these claims are the subject of the anti-SLAPP motion and this appeal. 3 For example, in late December 2011, a blog article called "'Pirates of the Pacific'"
appeared on "Google's Blogspot.com service." After being removed, excerpts of the
same article were "reposted on January 26, 2013 on a website known as BayImg.com.
This post accused SDCCU of engaging in mortgage fraud," inasmuch as it provided in
part:
"Was [SDCCU] attempting to perpetrate a mortgage fraud scheme against its
commercial real estate loan borrowers until they got caught?
"[W]hen SDCCU prepared loan documents for their borrowers to actually sign,
SDCCU surreptitiously and unbeknownst to those borrowers, inserted an inconspicuous
sentence into their Promissory Notes that state 'the initial rate is not considered when
applying this limitation.'
"It decided (FOR TWO YEARS UNTIL IT GOT CAUGHT) not to honor what its
Promissory Notes called for because the resulting rate change did not favor SDCCU
when the high interest rate environment it expected did not materialize. Based on the
inconspicuous change SDCCU made to the Promissory Notes of its borrowers which has
now backfired on SDCCU, adjustments in the rate should drop all the way to the margin
plus index. However, this does not favor SDCCU, so SDCCU has ignored what its own
Promissory Notes state. This is flat out fraud."
In mid-January 2012, someone identified as "bankonit@tormail.net" sent the
following email to various regulators and/or agencies, including the National Credit
Union Administration (NCUA), the Federal Bureau of Investigation (FBI) and the
California Department of Financial Institutions (DFI): "A massive mortgage fraud
scheme over a period of years is being perpetrated by a large credit union in
4 California. . . [.] It has been reported to a class-action attorney, investigative reporter, the
Congressman for that district and the FBI. [¶] We believe the executive leadership and
board of that credit union is complicit. We also think that the NCUA and . . . DFI is [sic]
either criminally complicit or criminally incompetent . . . [.]"
In late January 2012, an email using the same email address was sent to an
individual at the California Bankers Association stating: "[SDCCU] is actually engaging
in a massive mortgage fraud scheme themselves unbeknownst to its borrowers (yet)." A
few days later, Halleck received an email from an anonymous individual using the
address "a-former-co-worker-of-his@another-cu.com" stating, "We just heard about all
the problems occurring at your credit union. We had problems like that too when [a
certain individual] was here. Be careful, [this certain individual] has a history of hiding
problems. He also has a habit of getting others to help cover them up until he can find
someone to blame. That's his way. There is much more he is hiding." In mid-March
2012, an anonymous individual using the address "not_a_real_email_address@aol.com"
emailed the president and CEO of another credit union regarding the certain individual
and how the certain individual had "damage[d] . . . the credit union he's now at
[SDCCU]."
In late May 2012, Halleck received an email from "nobody@golden1.com" stating
that former employees of SDCCU "are talking to the NCUA and FBI about the fraud you
are covering up" and stating that "[o]ther credit unions are now talking about you" and
that "[i]t's not good."
In late November 2012, an anonymous source using the email
"bankers_against_sdccu@no-email.com" sent regulators at NCUA the following
5 statements: "We are copying the CEO of sdccu . . . [and] dozens of others on this email
to the NCUA so that everyone is aware that the NCUA is complicit in a cover up of
wrongdoing at sdccu . . . [.] We want all to know that the ncua is turning a blind eye to at
least the following. A) An attempted commercial real estate mortgage fraud scheme that
was quickly covered up and explained away as an oversight[.] B) An attempt to steal
member funds using ATM software that backfired and ended up costing sdccu $2 MM[.]
C) Terminating key employees with payoffs to keep quiet about other matters of
wrongdoing. . . [.]"
The operative complaint alleges that in late November 2012, Roark
misappropriated SDCCU's confidential member information when he sent that member
the following email: "Sdccu wants to foreclose on your Ruffin Road property because
they want to acquire it cheap and use it as an off-site data processing center. [¶] Our new
ceo is evil and since coming here has eliminated a dozen people who were witness to
wrongdoing here and about to report it. There were paid off to keep quiet."
In early December, an anonymous individual used the address
"sdccufraud@tormail.org" to email regulators at the NCUA stating that they had "proof"
of fraud by SDCCU on "hundreds of cases" of residential loans that were sold to the
Federal National Mortgage Association (FNMA) and that they were then "focusing on
commercial real estate loan fraud." This email then goes on to identify a San Diego
property located on Harney Street in which SDCCU allegedly made a "fraudulent loan."
It also stated that SDCCU was involved in a $100 million mortgage fraud scheme
involving commercial loans; that SDCCU also attempted to "rig their banking platform to
defraud members through a check clearing scheme that backfired"; and that SDCCU
6 intentionally originated commercial loans under $1 million "because the annual reporting
requirements are minimal enough to keep wrongdoing from ever being discovered."
On January 13, 2013, an individual identified as "Jamie Cisco" emailed Halleck
that she "let the most qualified people in business services go and [she] kept the two most
incompetent [people] who were responsible for those defective promissory notes on $100
million in commercial loans"; that the defective promissory notes were not a secret; and
that SDCCU engaged in mortgage fraud as a result. That same day, an anonymous
individual using the address "bankoit@tormail.org" sent an email to an SDCCU
"provider" stating loan documents from SDCCU over the past two years had been
reviewed and showed that SDCCU among other things had falsified them by stamping
such documents with the provider's "copyright notice" when the provider had not
approved of such language and that SDCCU had altered internal copies of such
documents.
On January 21, 2013, an email sent from the address "bankoit@tormail.org" to
regulators at the NCUA claimed that Halleck had "managed to shut down our blog at
sdccu.blogspot.com that publicized fraud and incompetence at SDCCU."
On January 26, 2013, a blog article was posted on the website "BayImg.com" from
the email address "sdccufraud@tormail.org" stating that SDCCU was financing "Gay
Pornography" of the "most extreme kind" and that SDCCU was "only concerned with
revenue, and tax-exempt revenue at that." This email further stated that the pornography
business was located on Adams Avenue in San Diego.
On or about February 10, 2013, "Jamie Cisco" sent an email using the email
address "summertime@inbox.com" to local businesses and the news media stating among
7 other things that SDCCU was "implicated" with an attorney convicted of bank fraud and
stating that SDCCU was "[b]oost[ing] San Diego's gay pornography industry," which
also included a link to an alleged defamatory posting regarding gay pornography. "Jamie
Cisco" on or about May 5, 2013 sent an email using the same "summertime" email
address to the NCUA, the DFI and others stating that SDCCU's insurance carrier was
being contacted with regard to "malfeasance, fraud and other financial improprieties" by
SDCCU board members and stating that the carrier should void any insurance coverage
to such members, rendering them personally liable for their alleged misconduct.
As noted, initially SDCCU was unable to identify the individual or individuals
responsible for these and other defamatory statements set forth in SDCCU's operative
complaint (collectively, defamatory statements). Those responsible managed to conceal
their identity by using "sophisticated online anonymizers" to hide their identity.
However, as discussed post, SDCCU's investigation in 2013 found Roark either
"authored and/or distributed" "some or all of the defamatory statements."
B. The Anti-SLAPP Motion
1. Moving Papers
Roark in his anti-SLAPP motion contended the challenged causes of action (i.e.,
first, second and fourth) arose from protected activity within the meaning of subdivisions
(b) and (e) of section 425.16. He further contended SDCCU could not satisfy its burden
under prong two of section 425.16, subdivision (b) and show a probability of prevailing
on the merits of the challenged causes of action because SDCCU had no evidence
whatsoever "prov[ing] that Mr. Roark was the author, or the sender, of any of the
offending emails or blog posts" set forth in the operative complaint.
8 In support of his anti-SLAPP motion, Roark declared under penalty of perjury that
he was not "behind any of the anonymous internet postings or emails" referenced in the
operative complaint; that he did not contact the FBI, the NCUA and/or the DFI regarding
"any of the anonymous emails or posts"; that he was "stunned" by the accusations he was
responsible in some manner for the defamatory statements; that he has never hidden or
attempted to hide his identity; and that, in his view, SDCCU provided no evidence
demonstrating it was "more likely than not" that he was responsible for any of the
defamatory statements.
With regard to the Adams Avenue property, Roark in his declaration in support of
the anti-SLAPP motion stated that he did not originate the loan on that property, but
instead handled the "underwriting" of that loan, and that the loan was originated by
Roark's then-boss. In addition, Roark declared many people both inside and outside
SDCCU knew the business being operated on the Adams Avenue property was "adult
oriented" and contrary to SDCCU's "'family-friendly' lending policies."
Roark in his declaration also stated that SDCCU erroneously concluded that he
was the individual who accessed online records from the San Diego County Recorder's
office (County Recorder), which was the subject of a January 26, 2013 posting that was
critical of SDCCU and which, as discussed post, was one of the postings that ultimately
led SDCCU to conclude that Roark was behind most if not all of the defamatory
statements.
2. Opposition and Trial Court's Ruling
SDCCU's opposition to the anti-SLAPP motion included a 15-page declaration
submitted by Halleck under penalty of perjury. In that declaration, Halleck went through
9 the defamatory statements, most of which were included in the operative complaint
summarized ante, starting with the December 29, 2011 blog article titled "Pirates of the
Pacific" posted on Google's Blogspot.com service. According to Halleck, SDCCU until
recently had been unable to determine the identity of the individual or individuals
responsible for the defamatory statements because they "managed to conceal their
identity by using Tor Mail and similar products, which allow them to send emails and
make internet postings anonymously."
However, during the course of its investigation, SDCCU uncovered evidence
linking Roark to "many, if not all, of the defamatory statements." Halleck stated the
"break" came as a result of the January 26, 2013 post on "BayImg.com" that referenced
gay pornography and included a screen shot of the County Recorder's online profile for
the Adams Avenue property. Halleck found a similar January 13, 2013 email she
received from "Jamie Cisco" at the "summertime@inbox.com" address that included the
same screen shot of the Adams Avenue property.4
As a result of a subpoena, the County Recorder identified two different internet
protocol (IP) addresses that had accessed the online records concerning the Adams
Avenue property between January 1, 2012 and January 30, 2013. One of those IP
addresses was traced back to Halleck and her email address at SDCCU. Halleck stated
she had accessed the County Recorder's website after receiving the January 13, 2013
email and after she saw the post on BayImg.com on January 26, 2013.
4 At oral argument, Roark's counsel represented to this court that the County Recorder's screen shot did not reference the Adams Avenue property, which representation is belied by the record. 10 The other IP address identified by the County Recorder was traced to an account
with AT&T. Another subpoena issued, and AT&T identified Roark as the holder of the
account that accessed the County Recorder's website to create the screen shot link for the
January 26, 2013 posting on BayImg.com. The January 26, 2013 posting also referenced
the email address "sdccufraud@tormail.org," which, according to Halleck, connected
Roark to the defamatory statements using the tor mail address. Similarly, the defamatory
statements by "bankonit@tormail.org," "Jamie Cisco" and "summertime@inbox.com"
repeating the same gay pornography allegations as the "BayImg.com" blog further
supported the finding that Roark was behind and/or involved in these defamatory
statements as well.
Halleck stated Roark was further linked to the defamatory statements by the fact
he was the loan officer for the Adams Avenue property. As noted, several of the
defamatory statements involved SDCCU's financing of a gay pornography business
located on that property. Moreover, although Roark was not the loan officer on a
property located on Harney Street in San Diego, according to Halleck, Roark was "one of
only three commercial loan officers at the time at SDCCU [who] had access to
information pertaining to the Harney Street Loan" that was the subject of a December 2,
2012 email to regulators at the NCUA accusing SDCCU of fraud. The December 2 email
was sent from the "sdccufraud@tormail.org" address, further linking Roark to the
statement.
Legal counsel of SDCCU also submitted a declaration in support of its opposition
to the anti-SLAPP motion. Alejandro Moreno stated under penalty of perjury that he
prepared over a dozen subpoenas seeking to identify those responsible for the defamatory
11 statements; that these subpoenas sought to identify the IP addresses of those emailing or
posting such statements; and that, with one exception, all of the subpoena responses
provided IP addresses that devolved back to "Tor Mail."
Moreno stated that despite the efforts of those responsible to remain anonymous,
SDCCU got the "break" it needed to identify at least one of the defamers in connection
with the January 26, 2013 blog posting on the BayImg.com website. Specifically,
Moreno issued a subpoena to the County Recorder's office seeking, among other
information, the identification of all IP address numbers that accessed the online records
concerning the Adams Avenue property between January 1, 2012 and January 30, 2013.
In response,5 the County Recorder provided a list detailing the time, date and IP address
number of each attempt to access the online records of the Adams Avenue property. The
response identified two distinct numbers, one of which was "hosted" by Cox
Communications and the other by AT&T. Moreno next subpoenaed the records from
both companies. Cox Communications showed that one IP address was from SDCCU.
5 SDCCU's opposed motion to judicially notice the County Recorder's "formal" February 21, 2013 verified response to the subpoena is granted. We note in passing that the attachment to the County Recorder's formal response (i.e., Exh. B to July 28, 2014 Request for Jud. Notice) is identical to the documents previously lodged in exhibit C by SDCCU in support of its opposition to the anti-SLAPP motion. (See Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1146-1148 [noting that the court did not commit reversible error when it admitted an edited version of a videotape for purposes of determining whether plaintiff established a probability of success on its libel claim because any objection to such evidence "easily could have been overcome" through a witness, because a "court's main concern" in admitting the videotape as substantive evidence is "making sure the tape accurately depicts what occurred" and because "authentication problems" in connection with the video "tend to be among the easiest evidentiary dilemmas to overcome"].) 12 Halleck stated under penalty of perjury she accessed the County Recorder's website after
she learned of the defamatory statements.
AT&T also responded to the subpoena. It showed the other IP address accessing
the County Recorder's website in connection with the Adams Avenue property belonged
to Roark. AT&T's response also listed Roark's home address as the address associated
with the account.
After overruling 78 of Roark's 81 objections to the evidence proffered by SDCCU
and hearing oral argument, the court denied the anti-SLAPP motion of Roark. In finding
Roark initially satisfied his burden under the anti-SLAPP statute, the court rejected
SDCCU's contention that Roark lacked standing to assert the protections of this statute
because he swore under penalty of perjury he did not make of the defamatory
statements.6 The court, however, also found SDCCU made a "prima facie showing of
facts" that, if credited, would support a judgment in favor of SDCCU on the challenged
causes of actions.
In support of this finding, the court ruled as follows:
"Defendant must establish a 'probability' that it will prevail on whatever claims are
asserted against the defendant. [Citation.] 'Probability' means that defendant must show
a legally sufficient claim and that the claim is supported by competent, admissible
evidence within the declarant's personal knowledge. [Citation.]
"Roark argues that, with respect to the probability of success on the merits, there is
no admissible evidence from which to conclude that he was in any manner responsible
6 SDCCU does not challenge this ruling on appeal. 13 for any of the statements attributed to him to include (i) any allegedly defamatory
statements communicated to the regulatory agencies are absolutely privileged, (ii) any
statements allegedly made to Halleck, SDCC[U] Board members and/or SDCCU's
owners were not published, and (iii) any statements allegedly published on or before July
3, 2012 are barred by the applicable statute of limitations. Thus, Plaintiff has not borne
the burden of establishing a prima facie case.
"As to the First and Second Causes of Action, Defamation generally requires (1) a
false statement of fact harmful to reputation; (2) that is published; (3) that the defendant
failed to use reasonable care to determine the truth or falsity of the statement; and (4) that
either caused actual damage or can be assumed to have damaged reputation even if not
quantifiable. [Citation.] With respect to the Fourth Cause of Action for Breach of
Separation Agreement -- non disparagement clause, SDCCU need only show Roark
harmfully disparaged SDCCU. [Citation.]
"False Statement: The declaration of Teresa Halleck indicates many false
statements made in websites and emails. False statements include: accusing SDCCU of
financing gay pornography by issuing a commercial loan to the Adams Avenue Property
(Halleck Dec[l.] paragraphs 17-24); SDCCU stole money from its members; using ATM
software; refusing to honor promissory notes for a period of two years because a rate
change did not favor SDCCU[] (Halleck Decl. [paragraph] 5); [and] accusing plaintiff of
having 'eliminated a dozen people' and paid 'half a dozen' to keep quiet about a 100
million dollar mortgage fraud scheme[] (paragraph 22)[.]
"Teresa Halleck states that the statements are false. (See e.g. Halleck Decl.
[paragraphs] 11, 26[.]) The defamatory statements constitute 'criticism of commercial
14 conduct' and therefore do not give rise to the heightened protection of the clear and
convincing evidence test. [Citations.] One [can] infer based on the falsity shown that
defendant failed to use reasonable care to determine the truth or falsity of the statement[.]
"Publication: The statements were published on the internet and/or emailed . . . to
someone other than SDCCU. (Halleck Decl. paragraphs 5-25.) Thus, the statements
were 'published' for purposes of defamation. [Citations.]
"The declaration of Teresa Halleck also alleges damages to plaintiff's reputation.
"There is also sufficient evidence to establish a prima facie case that defendant, in
fact, is responsible for the statements. Based on the declaration of Teresa Halle[c]k, a
January 26, 2013 blog posting on BayImg.com accuses SDCCU of financing
pornography at property on Adams Avenue. (Halleck Dec. at paragraph 17.) The blog
article included a screen shot of the San Diego County Recorder's online profile for the
Adams Avenue Property. (Id.) Subpoenas revealed that the only person, other than
SDCCU CEO Teresa Halleck, who accessed the County Recorder's website for the
Adams Avenue Property between January 1, 2012 and January 26, 2013 was former
SDCCU employee Carlton Roark. (See paragraphs 29-30.)
"While at SDCCU, Roark was the loan officer responsible for the Adams Avenue
loan associated with the alleged financing of gay pornography. (Id. at ¶ 32.) Roark was
also one of only three commercial loan officers at SDCCU, and had ready access to
information pertaining to the . . . Harney Street commercial loan associated with the
defamatory posting on December 2, 2012 concerning mortgage fraud. (Id. at ¶ 33.)
"The 'gay pornography blog' uses the email address sdccufraud@tormail.org,
which is associated with many other defamatory statements. (Id. at [¶] 31.) By
15 implication, the author of the various defamatory statements must be the same. Further,
all but one of the defamatory statements since January 26, 2013 reference the gay
pornography blog authored by Roark. (Halleck Decl. paragraphs 18-24.)"
DISCUSSION
I
The Anti-SLAPP Motion
A. Guiding Principles
The anti-SLAPP law allows a defendant to bring a special motion to strike a cause
of action "arising from any act of [the defendant] in furtherance of that person's right of
petition or free speech under the United States Constitution or the California Constitution
in connection with a public issue." (§ 425.16, subd. (b)(1).) Protected acts include, as
relevant here, "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." (§ 425.16, subd. (e)(2).) A court must grant the
defendant's motion to strike a cause of action that arises from protected acts unless the
plaintiff establishes a "probability " of prevailing on the claim. (§ 425.16, subd. (b)(1).)
Courts apply a two-pronged or two-step analysis when reviewing a challenge to an
anti-SLAPP motion. "First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected activity. The
moving defendant's burden is to demonstrate that the act or acts of which the plaintiff
complains were taken '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,' as
defined in the statute. [Citation.]" (Equilon Enterprises v. Consumer Cause, Inc. (2002)
16 29 Cal.4th 53, 67; see Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181,
186.)
Second, if the conduct is protected, the court then considers whether the plaintiff
has met the burden of establishing a probability of prevailing on the claim(s) subject to
the anti-SLAPP statute. (See § 425.16, subd. (b)(1); see also Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) To satisfy the second step, the
plaintiff must submit admissible evidence and make a prima facie showing of facts that
would support a judgment in the plaintiff's favor if proved at trial. (Monterey Plaza
Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064;
Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [noting that in the second step
of the anti-SLAPP statute a plaintiff must show the challenged cause of action is both
legally sufficient and supported by admissible evidence that, if credited, would be
sufficient to sustain a favorable judgment], disapproved on another ground as stated in
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
The court in making the probability of prevailing determination should consider
the pleadings and the supporting and opposing affidavits stating the facts on which
liability is based. (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees,
supra, 69 Cal.App.4th at p. 1064.) However, "[w]e do not weigh credibility or evaluate
the weight of the evidence. Rather, we accept as true the evidence favorable to the
plaintiff and assess the defendant's evidence only to determine if it has defeated plaintiff's
submission as a matter of law." (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569,
1576.)
17 "The plaintiff's burden on what the Supreme Court has referred to as the 'minimal
merit' prong of section 425.16, subdivision (b)(1) (Navellier v. Sletten [(2002)] 29 Cal.4th
[82,] 95, fn. 11) has been likened to that in opposing a motion for nonsuit or a motion for
summary judgment. [Citation.] 'A plaintiff is not required "to prove the specified claim
to the trial court"; rather, so as to not deprive the plaintiff of a jury trial, the appropriate
inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim.
[Citations.]'" (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP
(2005) 133 Cal.App.4th 658, 675, fn. omitted; see Hailstone v. Martinez (2008) 169
Cal.App.4th 728, 736 [noting a "plaintiff need only establish that his or her claim has
minimal merit to avoid being stricken as a SLAPP"].)
We review independently whether a defendant showed a claim arose from
protected activity within the meaning of the anti-SLAPP statute and, if so, whether the
plaintiff showed a probability of prevailing on that claim. (Wilcox v. Superior Court,
supra, 27 Cal.App.4th at pp. 823-824; Schroeder v. Irvine City Council (2002) 97
Cal.App.4th 174, 184.)
B. Probability of Prevailing on the Merits
1. Waiver
Citing Navellier v. Sletten among other authorities, SDCCU initially contends that
Roark waived the protections afforded by the anti-SLAPP statute when he signed the
employment agreement with SDCCU in 2003 and/or when he entered into the separation
agreement with SDCCU in 2012 in which he, among other things, agreed not to disparage
or defame SDCCU. We disagree.
18 Our review of Navellier v. Sletten, as discussed in DaimlerChrysler Motors Co. v.
Lew Williams, Inc. (2006) 142 Cal.App.4th 344, suggests that a defendant, who enters
into one or more agreements not to disparage another like Roark here, does not waive the
protection of the anti-SLAPP statute; instead, the issue of waiver and breach is relevant in
step two and whether the plaintiff can show a probability of prevailing on the claim. (See
Id. at p. 351 [noting our high court in Navellier "made clear the mere fact the
constitutional speech occurred in violation of a contract did not by itself preempt the
application of the anti-SLAPP statute" and further noting that "the issue of breach [of
such a contract] was to be addressed under the statute's merits prong" (i.e., in step two)].)
Aside from waiver, SDCCU does not challenge the finding of the trial court that
the challenged causes of action (i.e., first, second and fourth) arose out of protected
speech within the meaning of subdivisions (b)(1) and (e)(2) of section 425.16.
2. Public Figure
Roark contends that SDCCU is a limited public purpose or "'vortex'" public figure
and, therefore, that it must establish a "probability that [it] can produce clear and
convincing evidence" showing the defamatory statements "were made with knowledge of
their falsity or with reckless disregard of their truth or falsity." (Ampex Corp. v. Cargle,
supra, 128 Cal.App.4th at pp. 1577-1578, citing New York Times Co. v. Sullivan (1964)
376 U.S. 254, 279-280.) A "limited purpose public figure is an individual who
voluntarily injects him or herself or is drawn into a specific public controversy, thereby
becoming a public figure on a limited range of issues." (Ampex Corp. v. Cargle, supra, at
p. 1577, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351.)
19 To characterize a plaintiff as a limited purpose public figure, the courts consider
the following elements: "First, there must be a public controversy, which means the issue
was debated publicly and had foreseeable and substantial ramifications for
nonparticipants. Second, the plaintiff must have undertaken some voluntary act through
which he or she sought to influence resolution of the public issue. In this regard it is
sufficient that the plaintiff attempts to thrust him or herself into the public eye. And
finally, the alleged defamation must be germane to the plaintiff's participation in the
controversy." (Ampex Corp. v. Cargle, supra, 128 Cal.App.4th at p. 1577.)
Here, without deciding the other issues, we conclude SDCCU did not thrust itself
into the public eye, in contrast, for example, to the plaintiffs in Ampex Corp. v. Cargle
who voluntarily inserted themselves into a public controversy by way of press releases
and letters posted on their website. (See Ampex Corp. v. Cargle, supra, 128 Cal.App.4th
at p. 1578; see also Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 345 [noting those
"classed as public figures have thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved" and noting such
individuals do so to "invite attention and comment"].) For this reason alone, we conclude
SDCCU was not a limited purpose public figure under the facts of this case, and, as such,
it was not required to establish Roark acted with actual malice for purposes of satisfying
its minimal burden under section 425.16, subdivision (b) to show a probability of
prevailing on the challenged causes of action.7
7 In any event, we further conclude there was no "public controversy" in the instant case separate and apart from, and/or prior to, the controversy caused by the defamatory statements. (See Huchinson v. Proxmire (1979) 443 U.S. 111, 114, 134-135 [rejecting contention that plaintiff was a limited public figure because it was reported in the media 20 3. Defamation Causes of Action
"'"Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact which is false, unprivileged, and has a
natural tendency to injure or which causes special damage." [Citation.]' . . . Defamatory
publications that are made 'by writing, printing, picture, effigy, or other fixed
representation to the eye,' are considered libel. (Civ. Code, § 45.) . . . . [¶] Where a
libelous statement 'is defamatory on its face, it is said to be libelous per se, and actionable
without proof of special damage. But if it is defamation per quod, i.e., if the defamatory
character is not apparent on its face and requires an explanation of the surrounding
circumstances (the "innuendo") to make its meaning clear, it is not libelous per se, and is
not actionable without pleading and proof of special damages.' [Citations.]" (Burrill v.
Nair (2013) 217 Cal.App.4th 357, 382.) "[F]alse statements charging the commission of
crime or tending directly to injure a plaintiff in respect to his or her profession by
imputing dishonesty or questionable professional conduct are defamatory per se.
[Citations.]" (Id. at p. 383.)
Initially, we note that Roark's primary contention on appeal is not that the
statements against SDCCU were not defamatory, but rather that he was not the defamer.
Although Roark disputes under penalty of perjury that he was "behind any of the
plaintiff was successful in receiving federal funds for research after a member of Congress publically presented federal agencies that sponsored plaintiff's research the "'Golden Fleece' award" because plaintiff was not a public figure before "the controversy engendered by the Golden Fleece" award and noting that "those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure"].) As such, for this separate reason, we reject Roark's contention that SDCCU was a limited purpose public figure.
21 anonymous internet postings or emails" referenced in the operative complaint, we
conclude SDCCU submitted sufficient admissible evidence,8 including in the
declarations of Halleck and Moreno (summarized ante) that, if credited, satisfies
SDCCU's minimal burden to show Roark was in fact involved in or behind the
defamatory statements. When faced with conflicting evidence in reviewing an anti-
SLAPP motion, "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.'" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3, italics added; Ampex Corp. v. Cargle, supra, 128 Cal.App.4th at p. 1576.)
As such, we reject Roark's contention on appeal that SDCCU did not make a prima facie
showing linking him to the defamatory statements for purposes of the anti-SLAPP
statute.
8 Although Roark in his opening brief contends the court abused its discretion and thus erred in overruling all but three of his 81 evidentiary objections, we note his primary contention with respect to the evidentiary rulings involves the County Recorder's response to SDCCU's subpoena, an issue we have already addressed and resolved in this case. (See fn. 4, ante.) We note Roark, in any event, does not provide any meaningful discussion or analysis, including citation to authority, in his opening brief regarding his claim of error with respect to the remaining 77 or so evidentiary objections he contends were improperly overruled by the court. As such, we conclude Roark has not satisfied his burden on appeal to show the court erred with respect to these objections. (See Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 [noting the general rule that it an appellant's "'burden on appeal to affirmatively challenge the trial court's evidentiary ruling[s], and demonstrate the court's error'" and further noting that when an appellant fails "'to identify the court's evidentiary ruling as a distinct assignment of error" by merely making "cursory" arguments with respect to such rulings, the appellant has not satisfied his or her burden (italics added)].) 22 We also conclude SDCCU has satisfied its minimal burden to show a probability
of prevailing on its defamation causes of action (i.e., its first cause of action for
defamation per se and its second cause of action for defamation per quod). As noted
ante, the defamatory statements contained many factual statements that were alleged to
be false, including accusing SDCCU of: 1) financing gay pornography merely because
SDCCU made a commercial loan to individuals operating a business in the Adams
Avenue property that Roark contends in his own declaration was involved in an "adult
oriented" business; 2) stealing money or attempting to steal money from members using
ATM software that "backfired" and ended up costing SDCCU $2 million; 3) engaging in
or attempting to engage in a "commercial real estate mortgage fraud scheme" that, once
discovered, "was quickly covered up and explained away as an oversight"; 4) accusing
SDCCU of "flat out fraud" by refusing to honor promissory notes of borrowers after
higher rates anticipated by SDCCU did not materialize; and 5) paying off more than a
"Half A Dozen Employees With Knowledge Of The Scheme [i.e., 'Massive Commercial
Mortgage Fraud']" in order to keep such individuals "Quiet While The Company [i.e.,
SDCCU] Creates Plausible Deniability." Because a reasonable trier of fact could
conclude the above statements "imply a provably false factual assertion" (Wilbanks v.
Wolk (2004) 121 Cal.App.4th 883, 902), we conclude SDCCU made a prima facie
showing the defamatory statements are false for purposes of the defamation causes of
action.
That Roark submitted evidence suggesting some or all of these factual assertions
are true and thus not actionable does not overcome the showing of falsity based on the
evidence, if credited, submitted by SDCCU in the Halleck declaration. (See Peregrine
23 Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p.
675; Hailstone v. Martinez, supra, 169 Cal.App.4th at p. 735.) In any event, that a
published statement "contain[s] some truths" does "not insulate the publication as a whole
from a claim of defamation." (Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 901-902
[noting the "ultimate question" is whether "a reasonable trier of fact could conclude that
the published statements imply a provably false factual assertion"].) Similarly, the
contention that any such statements merely constitute an "opinion" does not preclude
such statements from being actionable. (Id. at p. 903 [noting that "'[e]ven if the speaker
states the facts upon which he [or she] bases his [or her] opinion, if those facts are either
incorrect or incomplete, or if his [or her] assessment of them is erroneous, the statement
may still imply a false assertion of fact"].)
Moreover, many, if not all, of the defamatory statements were also defamatory per
se under California law. (See, e.g., Burrill v. Nair, supra, 217 Cal.App.4th at p. 383
[noting false statements "charging the commission of crime or tending directly to injure a
plaintiff . . . by imputing dishonesty or questionable professional conduct are defamatory
per se"]; Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, supra,
117 Cal.App.4th at p. 1145, fn. 7 [noting a statement that a plaintiff is guilty of a crime is
libelous per se]; Pen. Code, § 532f , subd. (a) [noting a "person commits mortgage fraud
if, with the intent to defraud, the person . . . : [¶] . . . [d]eliberately makes any
misstatement, misrepresentation, or omission during the mortgage lending process with
the intention that it be relied on by a mortgage lender, borrower, or any other party to the
mortgage lending process"].)
24 We also conclude SDCCU has satisfied its minimal burden to show the
defamatory statements were "published," as the record shows many if not all of such
statements were either posted on the internet or emailed to someone other than SDCCU.
(See Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 901 [noting an internet posting
constituted a "publication" for defamation purposes].)
Finally, SDCCU submitted prima facie evidence to satisfy its minimal burden
under the anti-SLAPP statute that it was damaged, even assuming SDCCU was required
to make this showing in light of the fact the statements accuse SDCCU of criminal
conduct and/or fraud. (See Burrill v. Nair, supra, 217 Cal.App.4th at p. 382 [noting a
statement that is defamatory on its face is "'actionable without proof of special
damage'"].) Indeed, the declaration of Halleck, SDCCU's CEO, contains evidence that, if
credited, shows SDCCU sustained harm to its "business reputation," lost customers and
revenue and incurred losses based on the "hundreds of hours of employee time" in
responding to inquires by government regulators. All told, SDCCU estimated it incurred
losses of "hundreds of thousands of dollars" resulting from the defamatory statements.
4. Breach of Separation Agreement
Roark concedes SDCCU's fourth cause of action for breach of separation
agreement is subsumed into defamation causes of action. SDCCU in its operative
complaint alleged that Roark breached a "'Non-Disparagement'" clause within the
separation agreement that expressly prohibited him from making or publishing any
"'derogatory or adverse statements . . . regarding SDCCU or any of its present or former
directors, officers or employees.'"
25 Because, as we have noted, SDCCU satisfied its minimal burden under the anti-
SLAPP statute to show a probability of prevailing on its defamation causes of action and
because the fourth cause of action for breach of separation agreement is subsumed into
those claims, we likewise conclude SDCCU also satisfied its minimal burden of
prevailing on this claim for purposes of section 425.16.
DISPOSITION
We affirm the order denying Roark's anti-SLAPP motion to the challenged causes
of action. SDCCU to recover its costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.