Cal. State Labor Commissioner v. Everlasting Gifts CA3 ( 2022 )


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  • Filed 7/28/22 Cal. State Labor Commissioner v. Everlasting Gifts CA3
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (Placer)
    ----
    CALIFORNIA STATE LABOR COMMISSIONER,
    Plaintiff and Respondent,                                                  C090911
    v.                                                                     (Super. Ct. No. SCV43182)
    EVERLASTING GIFTS, INC., et al.,
    Defendants and Appellants.
    The California State Labor Commissioner filed an action against Everlasting Gifts,
    Inc., alleging Everlasting Gifts committed unlawful retaliation when it filed a trade
    secrets complaint against one of its former employees. Everlasting Gifts responded with
    a special motion to strike the complaint as a Strategic Lawsuit Against Public
    Participation under Code of Civil Procedure, section 425.16 (the anti-SLAPP motion).1
    The trial court denied the anti-SLAPP motion, and Everlasting Gifts now appeals that
    denial.
    Everlasting Gifts contends the trial court erred by (1) finding that the Labor
    Commissioner successfully carried its burden of establishing a probability of prevailing
    on the merits, (2) concluding that the anti-SLAPP statute does not apply to an owner of
    Everlasting Gifts because the owner is not a party to the trade secrets action and,
    1 Undesignated statutory references are to the Code of Civil Procedure.
    1
    therefore, did not engage in protected activity, and (3) declining to consider evidence
    provided by Everlasting Gifts.
    Finding no error, we will affirm the trial court’s order.
    BACKGROUND
    A
    Section 425.16 provides that “[a] cause of action against a person arising from any
    act of that person in furtherance of the person’s right of petition or free speech under the
    United States Constitution or the California Constitution in connection with a public issue
    shall be subject to a special motion to strike, unless the court determines that the plaintiff
    has established that there is a probability that the plaintiff will prevail on the claim.”
    (§ 425.16, subd. (b)(1).) This statute “sets out a procedure for striking complaints in
    harassing lawsuits that are commonly known as SLAPP suits . . . , which are brought to
    challenge the exercise of constitutionally protected free speech rights.” (Kibler v.
    Northern Inyo County Local Hospital Dist. (2006) 
    39 Cal.4th 192
    , 196.)
    When a defendant files an anti-SLAPP motion, the trial court engages in a two-
    step analysis. First, the trial court considers whether the defendant has established that
    the gravamen of the complaint challenges activity protected by section 425.16. If the
    defendant establishes that the complaint relates to protected activity, the trial court must
    determine whether the plaintiff can satisfy the burden of showing that there is a
    probability of success on the merits. (Monster Energy Co. v. Schechter (2019) 
    7 Cal.5th 781
    , 788 (Monster Energy).)
    We apply the independent standard of review to the trial court’s ruling on the anti-
    SLAPP motion. (Flatley v. Mauro (2006) 
    39 Cal.4th 299
    , 325.)
    B
    Defendant Everlasting Gifts is a corporation that owns a retail store selling stone
    and crystal items, jewelry, candles, statuary, and aromatherapy products. Defendant
    Kuljit Rajania is an officer and owner of Everlasting Gifts. We will refer to defendants
    2
    collectively as Everlasting Gifts except when differentiation is necessary. Michelle
    Eckhardt was an employee and store manager of Everlasting Gifts.
    In January 2017, Eckhardt took two days of sick leave. Everlasting Gifts, through
    Rajania, terminated Eckhardt’s employment when she returned to work, then modified
    the termination to a demotion. Later that month, Eckhardt gave two-weeks’ notice of
    resignation, but Rajania terminated her again before the two weeks expired.
    Eckhardt filed a retaliation complaint with the Labor Commissioner, and Rajania
    acknowledged that Eckhardt was terminated for using sick leave. On April 10, 2018, the
    Labor Commissioner issued to Everlasting Gifts a notice of unlawful retaliation, directing
    Everlasting Gifts to pay wages and penalties.
    Two months after the Labor Commissioner’s retaliation determination and notice,
    Everlasting Gifts filed an action against Eckhardt alleging breach of fiduciary duty,
    intentional interference with economic advantage, unfair competition, and
    misappropriation of trade secrets. The complaint sought damages and injunctive relief.
    The parties refer to the action as the Trade Secrets Lawsuit and we will do the same. In
    the complaint, Everlasting Gifts alleged Eckhardt misappropriated trade secrets from
    Everlasting Gifts and used them to open a competing retail business, Aries Alchemy &
    Artifacts. According to the complaint, Eckhardt acquired confidential proprietary
    information and used that information to start her competing business.
    Eckhardt reported the Trade Secrets Lawsuit to the Labor Commissioner. After
    review of the Trade Secrets Lawsuit, the Labor Commissioner decided the action was
    meritless and constituted continuing retaliation against Eckhardt. The Labor
    Commissioner therefore sued Everlasting Gifts and Rajania, alleging Labor Code
    violations and seeking statutory damages and other relief. The complaint alleged
    Eckhardt did not misappropriate trade secrets and did not solicit any of the customers of
    Everlasting Gifts and Rajania. Further, the complaint alleged that Everlasting Gifts and
    3
    Rajania filed the Trade Secrets Lawsuit in retaliation against Eckhardt for Eckhardt’s
    report to the Labor Commissioner of the earlier retaliation. This is the instant action.
    Everlasting Gifts and Rajania filed a special motion to strike the Labor
    Commissioner’s complaint under section 425.16. They asserted this action is an
    improper attempt to chill their protected activity, which was the filing of the Trade
    Secrets Lawsuit to redress a grievance.
    The trial court denied the anti-SLAPP motion. It concluded Rajania is not entitled
    to relief under the anti-SLAPP statute because she is not a plaintiff in the Trade Secrets
    Lawsuit -- in other words, she did not engage in protected petitioning activity. It further
    concluded that, although Everlasting Gifts’ filing of the Trade Secrets Lawsuit was
    protected petitioning activity, the Labor Commissioner demonstrated a likelihood of
    prevailing on the merits.
    Everlasting Gifts and Rajania filed a notice of appeal from the order denying the
    anti-SLAPP motion.2 (§ 425.16, subd. (i).)
    DISCUSSION
    I
    Everlasting Gifts contends the trial court erred in finding that the Labor
    Commissioner successfully carried its burden of establishing a probability of prevailing
    on the merits.
    2 On June 11, 2021, the Labor Commissioner filed a request for judicial notice. The
    request includes legislative history of three bills and a mandatory settlement conference
    statement filed in the Trade Secrets Lawsuit after the anti-SLAPP motion in this action
    was denied. We deny the request for judicial notice in its entirety. The legislative
    histories are not germane to the dispositive issues in this appeal (People ex rel. Lockyer v.
    Shamrock Foods Co. (2000) 
    24 Cal.4th 415
    , 422, fn. 2), and the mandatory settlement
    conference statement was not before the trial court when it denied the anti-SLAPP
    motion (Doers v. Golden Gate Bridge etc. Dist. (1979) 
    23 Cal.3d 180
    , 184, fn. 1).
    4
    Because Everlasting Gifts established that the causes of action arose from its
    petitioning activity, the burden shifted to the Labor Commissioner to establish a
    probability of prevailing on the merits. (Monster Energy, supra, 7 Cal.5th at p. 788.)
    The California Supreme Court has described “ ‘this second step as a “summary-
    judgment-like procedure.” [Citation.] The court does not weigh evidence or resolve
    conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a
    legally sufficient claim and made a prima facie factual showing sufficient to sustain a
    favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the
    defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of
    law. [Citation.] “[C]laims with the requisite minimal merit may proceed.” ’ [Citation.]
    . . . As to the second step, a plaintiff seeking to demonstrate the merit of the claim ‘may
    not rely solely on its complaint, even if verified; instead, its proof must be made upon
    competent admissible evidence.’ [Citations.]” (Ibid.)
    If the plaintiff makes a prima facie showing of minimal merit based on the
    evidence submitted by the plaintiff, the trial court turns to the evidence submitted by the
    defendant. However, the purpose of considering the defendant’s evidence is only to
    determine whether the defendant’s evidence defeats the plaintiff’s showing as a matter of
    law, construing the evidence in favor of the plaintiff, including in matters of conflicting
    evidence and credibility. (Wilson v. Cable News Network, Inc. (2019) 
    7 Cal.5th 871
    , 891
    (Wilson).)
    The Labor Commissioner’s claim against Everlasting Gifts is for retaliation. To
    establish retaliation under the Labor Code, the Labor Commissioner “must show (1) [the
    employee] engaged in a ‘protected activity,’ (2) the employer subjected the employee to
    an adverse employment action, and (3) a causal link existed between the protected
    activity and the employer’s action. [Citations.] Once an employee [or Labor
    Commissioner] establishes a prima facie case, the employer is required to offer a
    legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the
    5
    employer produces a legitimate reason for the adverse employment action, the
    presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to
    the employee [or Labor Commissioner] to prove intentional retaliation.” (Yanowitz v.
    L’Oreal USA, Inc. (2005) 
    36 Cal.4th 1028
    , 1042 (Yanowitz).)
    The Labor Commissioner produced evidence that Eckhardt engaged in protected
    activities, which Everlasting Gifts does not dispute. Those activities included taking sick
    leave and filing her retaliation claim with the Labor Commissioner. After Everlasting
    Gifts received notice of the Labor Commissioner’s determination that Everlasting Gifts
    had retaliated against Eckhardt, Everlasting Gifts filed the Trade Secrets Lawsuit. A
    finder of fact could reasonably infer from the timing of the Trade Secrets Lawsuit that
    Everlasting Gifts filed the Trade Secrets Lawsuit in retaliation for Eckhardt’s protected
    activities. (Scotch v. Art Institute of California (2009) 
    173 Cal.App.4th 986
    , 1020.)
    Thus, the Labor Commissioner made a prima facie showing of retaliation.
    As noted, in retaliation litigation, the plaintiff establishes a rebuttable presumption
    of retaliation if a prima facie showing is made, but a defendant can rebut the presumption
    by producing a legitimate reason for the adverse action. (Yanowitz, supra, 36 Cal.4th at
    p. 1042.) In the context of an anti-SLAPP motion, however, the defendant’s evidence of
    a legitimate reason for the adverse action overcomes the plaintiff’s prima facie showing
    only if it rebuts the presumption of retaliation as a matter of law, construing the evidence
    in favor of the plaintiff. (See Wilson, supra, 7 Cal.5th at p. 891.)
    Here, Everlasting Gifts argued the presumption of retaliation was rebutted. It
    based this argument on its assertion it “can establish that it filed the trade secret action
    against [Eckhardt] because it had determined that [Eckhardt] had used Defendant
    Everlasting Gifts’ confidential proprietary information, including vendor and customer
    lists, to start a competing business called Aries Alchemy & Artifacts.” Everlasting Gifts’
    evidence in support of the anti-SLAPP motion consisted of Rajania’s declaration that
    Eckhardt sold her own items separately to customers of Everlasting Gifts and that
    6
    Eckhardt sold items from the same vendors. In a conclusory fashion, Rajania declared:
    “Eckhardt used Everlasting Gifts’ confidential proprietary information, including vendor
    and customer lists.”
    This evidence submitted by Everlasting Gifts in support of the anti-SLAPP motion
    did not establish that the Labor Commissioner’s prima facie showing of retaliation was
    overcome as a matter of law. Leaving aside the conclusory nature of Rajania’s statement
    that Eckhardt used confidential proprietary information, whether Everlasting Gifts filed
    the Trade Secrets Lawsuit to retaliate against Eckhardt for engaging in protected activity
    or for nonretaliatory reasons is a question of fact, requiring determinations of credibility
    on conflicting evidence. Everlasting Gifts’ evidence therefore did not defeat the Labor
    Commissioner’s prima facie showing of retaliation as a matter of law. (Wilson, supra,
    7 Cal.5th at p. 891.)
    Even though a plaintiff must carry the burden of proving intentional retaliation,
    including pretext, at trial (Yanowitz, 
    supra,
     36 Cal.4th at p. 1042), the plaintiff need only
    make a prima facie showing of retaliation to overcome an anti-SLAPP motion because
    credibility and conflicting evidence determinations are all decided in the plaintiff’s favor.
    As a result, an inference of retaliation based on the timing of the defendant’s action is
    enough to overcome an anti-SLAPP motion if there is no evidence rebutting the prima
    facie showing as a matter of law. Here, there is no evidence rebutting the prima facie
    showing of retaliation as a matter of law, so the Labor Commissioner’s complaint has at
    least minimal merit. Therefore, the trial court properly denied the anti-SLAPP motion
    because the Labor Commissioner produced evidence supporting a probability of
    prevailing on the merits.
    Everlasting Gifts attempts to raise two more grounds, for the first time on appeal,
    for finding that the Labor Commissioner cannot prevail on the merits. Everlasting Gifts
    asserts its conduct in filing the Trade Secrets Lawsuit is protected by the litigation
    privilege and, applying law relating to malicious-prosecution actions, the Labor
    7
    Commissioner’s retaliation action is jurisdictionally barred because Eckhardt has not
    prevailed on the merits in the Trade Secrets Lawsuit. We conclude these arguments were
    forfeited for the purpose of the anti-SLAPP motion because they were not raised in the
    trial court.
    Civil Code section 47, subdivision (b) provides a privilege for publications made
    in a judicial proceeding. Everlasting Gifts argues that the Labor Commissioner cannot
    prevail in this action because the filing of the Trade Secrets Lawsuit was privileged under
    Civil Code section 47, subdivision (b). It is not immediately apparent that retaliation
    against a worker in the form of filing a complaint against the worker is privileged. (See
    Bill Johnson’s Rests. v. NLRB (1983) 
    461 U.S. 731
    , 744 [
    76 L.Ed.2d 277
    , 290] [National
    Labor Relations Board may enjoin a baseless retaliation lawsuit].) In any event,
    Everlasting Gifts has not properly preserved the question for appeal. If an appellate
    “theory was never presented to the trial court,” it is forfeited. (Children’s Hospital &
    Medical Center v. Bonta (2002) 
    97 Cal.App.4th 740
    , 776 (Children’s Hospital).) As
    more specifically relevant here, a defense based on the litigation privilege “must be
    specially pleaded or it cannot be availed of.” (Stevens v. Snow (1923) 
    191 Cal. 58
    , 64.)
    Thus, having failed to raise the litigation privilege in the trial court, Everlasting Gifts
    cannot raise it for the first time here.
    Everlasting Gifts also claims this action is jurisdictionally barred because Eckhardt
    has not prevailed in the Trade Secrets Lawsuit. But Everlasting Gifts bases this on the
    principle that a defendant in a civil action is barred from filing a malicious-prosecution
    action against the plaintiff until the defendant obtains a favorable outcome on the merits
    in the first proceeding. (See Babb v. Superior Court (1971) 
    3 Cal.3d 841
    , 845 [plaintiff
    in malicious-prosecution action must prove prior judicial proceeding was terminated in
    plaintiff’s favor].) There are three problems with Everlasting Gifts’ argument. First, the
    defendant in the Trade Secrets Lawsuit (Eckhardt) is not a party to this action. Second,
    this is not a malicious-prosecution action, it is a retaliation action filed by the Labor
    8
    Commissioner. And third, Everlasting Gifts provides no authority or argument for the
    proposition that the Labor Commissioner is bound by any outcome in the Trade Secrets
    Lawsuit. Precedent that a malicious-prosecution action is barred unless the plaintiff
    prevails on the merits does not apply here, and Everlasting Gifts makes no persuasive
    argument that malicious-prosecution law should apply here. Accordingly, this action is
    not jurisdictionally barred, and having failed to raise the malicious-prosecution analogy
    in the trial court in its anti-SLAPP motion, Everlasting Gifts forfeited reliance on the
    theory on appeal. (Children’s Hospital, supra, 97 Cal.App.4th at p. 776.)
    II
    Everlasting Gifts next contends the trial court erred when it concluded that the
    anti-SLAPP statute does not apply to Rajania because she is not a party to the Trade
    Secrets Lawsuit and did not engage in protected activity.
    A defendant bears the initial burden to show a cause of action arises from the
    defendant’s constitutionally protected activity. “[T]he critical consideration is whether
    the cause of action is based on the defendant’s protected free speech or petitioning
    activity. [Citation.]” (Navellier v. Sletten (2002) 
    29 Cal.4th 82
    , 89, italics omitted.)
    Here, there is no dispute Rajania did not file a lawsuit against Eckhardt. Based on
    that fact, the trial court concluded Rajania is not protected by the anti-SLAPP statute.
    However, Everlasting Gifts asserts the statute must be interpreted broadly to include and
    protect Rajania. Perhaps consistent with Everlasting Gifts’ argument, the California
    Supreme Court has favored a broad view of the phrase “any act of that person in
    furtherance of the person’s right of petition or free speech . . . .” (§ 425.16, subd. (b)(1),
    italics added; Rusheen v. Cohen (2006) 
    37 Cal.4th 1048
    , 1056.) “ ‘Any act’ includes
    communicative conduct such as the filing, funding, and prosecution of a civil action.
    [Citation.] This includes qualifying acts committed by attorneys in representing clients in
    litigation. [Citations.]” (Rusheen, at p. 1056.)
    9
    Nevertheless, because we conclude the Labor Commissioner established a
    probability of prevailing on the merits, we need not consider whether the coverage of the
    anti-SLAPP statute extends to someone like Rajania who did not personally engage in the
    protected activity.
    III
    Everlasting Gifts further contends the trial court erred by declining to consider
    evidence that Everlasting Gifts provided with its reply to the Labor Commissioner’s
    opposition to the anti-SLAPP motion.
    In its anti-SLAPP motion, Everlasting Gifts acknowledged that the Labor
    Commissioner’s action relied on the inference of retaliation drawn from Everlasting
    Gifts’ filing of the Trade Secrets Lawsuit two months after the Labor Commissioner
    determined that Everlasting Gifts had retaliated against Eckhardt for using sick leave.
    The Labor Commissioner responded with evidence of that temporal proximity and
    asserted the inference that the timing of Everlasting Gifts’ Trade Secrets Lawsuit
    established a prima facie case of retaliation. Everlasting Gifts filed a reply in support of
    the anti-SLAPP motion and included a supplemental declaration of Rajania. The
    declaration stated that Rajania saw items listed on Eckhardt’s social media site that
    closely resembled the products Everlasting Gifts sold, Rajania had undertaken substantial
    efforts to safeguard Everlasting Gifts’ vendor information, Eckhardt had access to vendor
    information, and Eckhardt bought products from one of Everlasting Gifts’ vendors. In
    ruling on the anti-SLAPP motion, the trial court declined to consider Rajania’s
    supplemental declaration because the Labor Commissioner was not afforded an
    opportunity to review and respond to the evidence.
    Everlasting Gifts argues the trial court erred by not considering the evidence
    submitted with the reply, referring to the evidence as rebuttal evidence. Everlasting Gifts
    claims that, because the burden shifts to the plaintiff in an anti-SLAPP motion to produce
    10
    evidence supporting a prima facie showing of merit, the defendant should be entitled to
    rebut that showing with evidence of its own. We disagree.
    Everlasting Gifts acknowledges that the lone case on this issue rejects the
    argument that a trial court must consider rebuttal evidence submitted in an anti-SLAPP
    motion. (Jay v. Mahaffey (2013) 
    218 Cal.App.4th 1522
    , 1536-1537.) However,
    Everlasting Gifts argues Jay was wrongly decided. We will follow Jay and need not
    decide whether it is wrongly decided because, even if the trial court should have
    considered the rebuttal evidence, the rebuttal evidence did not negate the inference from
    Everlasting Gifts’ timing in filing the Trade Secrets Lawsuit as a matter of law. While it
    is true that a jury, making credibility determinations and resolving conflicts, could
    eventually determine that the reasons Everlasting Gifts now gives for filing the Trade
    Secrets Lawsuit were not pretextual, for now, in the context of an anti-SLAPP motion,
    the rebuttal evidence proffered by Everlasting Gifts is simply conflicting evidence. The
    trial court could not resolve the conflicts at this stage of the proceedings. Therefore, even
    if the trial court erred, the error was not prejudicial. (Cal. Const., art. VI, § 13.)
    DISPOSITION
    The order is affirmed. The Labor Commissioner is awarded its costs on appeal.
    (Cal. Rules of Court, rule 8.278(a).)
    /S/
    MAURO, J.
    We concur:
    /S/
    ROBIE, Acting P. J.
    /S/
    RENNER, J.
    11