Hunter v. National Basketball Players Assn. CA2/3 ( 2015 )

Filed 8/10/15 Hunter v. National Basketball Players Assn. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
G. WILLIAM HUNTER, B254155
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LC100771)
v.
NATIONAL BASKETBALL PLAYERS
ASSOCIATION,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Huey Cotton, Jr., Judge. Affirmed.
Orrick, Herrington & Sutcliffe, Lynne C. Hermle, Joseph C. Liburt,
Leah L. Spero, Christina G. Sarchio; Weil, Gotshal & Manges, James W. Quinn and
Bruce S. Meyer for Defendant and Appellant.
Sidley Austin, David L. Anderson, Marie L. Fiala, Joshua Hill and
Michelle B. Goodman for Plaintiff and Respondent.
_________________________
INTRODUCTION
In its appeal from an order denying its special motion to strike (Code Civ. Proc.,
§ 425.16),1 defendant National Basketball Players Association (the NBPA or union)
contends the trial court erred by allowing plaintiff G. William Hunter to amend his
breach of contract causes of action instead of dismissing the suit as a strategic lawsuit
against public participation. A review of Hunter’s complaint reveals that the four
contract causes of action alleged against the NBPA do not arise from activity protected
by the anti-SLAPP statute. Accordingly, for a different reason than that relied on by the
trial court, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Hunter’s contract with the NBPA
The NBPA is the collective bargaining labor union for the players in the National
Basketball Association (the NBA). It hired Hunter to be its Executive Director in late
1996. The parties signed a written contract for a three-year term (the contract). Three
extensions were made to Hunter’s contract including an extension in 2010 (the 2010
extension), which extension contract was signed by NBPA President Derek Fisher.2
The 2010 extension continued Hunter’s employment term to June 30, 2015.
2. Hunter’s complaint
In late 2010, the NBPA entered into negotiations with the NBA for a new
collective bargaining agreement. During negotiations, disagreements arose between the
NBA owners and the union and in July 2011, the NBA owners locked the players out of
the teams’ facilities and eventually out of games.
The complaint alleges further that Hunter and Fisher differed about how to resolve
the impasse. Hunter believed that Fisher had much to lose from a protracted lockout and
1
All further statutory references are to the Code of Civil Procedure.
2
In addition to being the then President of the NBPA, Fisher was a basketball
player variously for the Los Angeles Lakers, the Golden State Warriors, the Utah Jazz,
the Dallas Mavericks, and eventually the Oklahoma City Thunder.
2
a personal interest in maintaining good relations with the NBA. In retaliation for their
disagreement, Fisher and his publicist Jamie Wior allegedly waged a campaign to oust
Hunter as the Union’s Executive. Fisher and Wior initiated an audit of the NBPA.
Although the NBPA’s Executive Committee cancelled the audit and issued a unanimous
vote of no confidence in Fisher, Fisher refused to resign. Wior orchestrated a campaign
in the press designed to undermine Hunter and muddy his reputation. As the result of the
negative attention generated by the news articles, the Executive Committee retained a law
firm to conduct an internal investigation (the internal investigation).
The report of the internal investigation, released on a website, concluded that
Hunter committed no criminal acts but had made some missteps in his duties as
Executive Director. The report also concluded that the Board of Player Representatives
had never properly approved Hunter’s current employment contract with the NBPA as
required by the union’s constitution and by-laws, and that Hunter was aware that his
current contract was never properly approved and knowingly failed to disclose this
information to the NBPA’s Executive Committee and player representatives.
After placing Hunter on administrative leave, Fisher and other members of the
NBPA’s Executive Committee sent Hunter a letter in February 2013, terminating him
from employment “effective immediately.” The letter, attached to Hunter’s complaint,
asserted that the 2010 contract extension was “not properly negotiated, executed, or
approved, [with the result] that contract is null, void, invalid, and unenforceable.
Therefore, you are an at-will employee and being terminated accordingly.” Continuing,
the letter explained that “there are grounds to terminate your employment ‘for cause.’ To
the extent a tribunal in a future proceeding determines that the [contract] is enforceable,
this letter shall be construed as notice of a ‘for cause’ termination . . . .” Hunter’s lawsuit
against the NBPA, Fisher, and Wior ensued. Neither Fisher nor Wior is a party to this
appeal.
Of the 14 causes of action in Hunter’s complaint, four were aimed solely at the
NBPA and involved contract theories of liability only: (1) breach of express contract,
(2) repudiation, (3) breach of implied-in-fact contract, and (4) breach of the covenant of
3
good faith and fair dealing. Hunter sought damages, but not injunctive relief or
reinstatement as Executive Director. None of the remaining eight causes of action is at
issue in this appeal.
In particular, Hunter alleged the existence of an employment contract, both
express and implied, and attached copies of the initial contract and each extension
agreement at issue. Hunter alleged he performed all duties and obligations required of
him under the contract, and in three causes of action, that the union “breached the
Employment Contract by discharging Hunter before the end of his employment term
under the Employment Contract” and extensions. In the cause of action entitled
repudiation, Hunter alleged the union “asserted without qualification that they never
entered into a contract with Hunter and denied the very existence of the Employment
Contract and [2010] Extension” and “clearly and positively indicated to Hunter that they
would not meet the requirements of the contract, thereby expressly repudiating the
Employment Contract and the 2010 Extension,” “thus interfering with and preventing
Hunter from receiving the benefits he was entitled to receive under the Employment
Contract and the 2010 Extension.”
3. The NBPA’s special motion to strike
The NBPA filed its anti-SLAPP motion and demurred to the complaint. In
conjunction with the demurrer, the NBPA requested the trial court take judicial notice of
a federal indictment of Joseph Lombardo and Carolyn Kaufman by the United States
Attorney’s Office, and copies of publications from news outlets pertaining to Hunter’s
job performance and termination and referring to a federal investigation into the NBPA.
These documents, attached to the union’s request for judicial notice, formed the basis of
the trial court’s determination that Hunter’s lawsuit arose out of protected activity as they
were made in an official proceeding. (§ 425.16.)
In its anti-SLAPP motion, incorporating the arguments raised on demurrer, the
NBPA argued that Hunter’s lawsuit arose out of protected activity because Hunter’s
causes of action against the union were premised on his allegations about the internal
investigation. The union conducted the internal investigation as the result of a
4
combination of events: Fisher’s call for an inquiry into the union’s business practices,
some articles in the New York Times, Bloomberg News, and Yahoo! Sports about Hunter
and the NBPA, and a subpoena issued to the union by the United States Attorney for the
Southern District of New York calling for the production of financial and other business
records, which subpoena led to more media coverage. The 229-page report of the
internal investigation concluded that Hunter acted in a manner inconsistent with his
fiduciary duties and knew his contract was not properly executed pursuant to the union’s
constitution and by-laws. Thus, the union argued, all of Hunter’s claims were premised
on acts that were either statements or writing made before an official proceeding or an
issue under review by an official proceeding; statements made in a public forum on a
matter of public interest; or conduct in furtherance of the exercise of constitutional right
of free speech in connection with an issue of public interest. (§ 425.16.)
The NBPA also argued that Hunter could not meet his burden to establish a
probability of success on his contract causes of action.
4. Hunter’ s opposition
Hunter opposed the anti-SLAPP motion by arguing that his contract causes of
action arose from the NBPA’s termination of his employment, not from the exercise of
any First Amendment right.
As for the probability of his prevailing on the merits, Hunter submitted copies of
the contract and extensions, his declaration and those of three members of the NBPA
Executive Committee in 2010 to show that he had an express, and alternatively, an
implied-in-fact employment contract, that the union had ratified the 2010 extension, and
that the parties’ course of conduct manifested the intent to enter into the 2010 extension.
Hunter also demonstrated that the union breached its contractual obligations when it
“terminated Hunter’s employment without compensation.” The contract provided that
the NBPA could terminate Hunter with or without cause.3 If it terminated him for cause,
3
Paragraph 7.a of the 2010 extension provides, “Upon termination for cause,
Employer’s sole and exclusive obligation will be to pay Employee his compensation
earned through the date of termination, any accrued but unused vacation, and any
5
then the NBPA would be obligated to pay Hunter all compensation earned through the
date of termination, any accrued but unused vacation, and any outstanding
reimbursements. If termination were without cause, the NBPA would be obligated to pay
Hunter his base compensation and benefits for the remaining term of the contract, plus
accrued but unused or unpaid vacation or compensation, and any unreimbursed expenses
already incurred. The NBPA did not have cause to terminate his employment because
none of the grounds for cause cited in the contract existed, he asserted. But even if it had
cause, Hunter declared that the NBPA has not paid him anything since it terminated his
employment. Hunter also asserted that the NBPA expressly repudiated the 2010
extension before the union’s performance was due by sending him the letter terminating
his employment. Finally, he argued that if the absence of Board approval for the 2010
extension rendered the contract unenforceable, then the union breached the covenant of
good faith and fair dealing by failing to secure the necessary approvals to ensure the
contract’s enforceability.
5. The NBPA’s reply
The union countered that Hunter’s opposition was an attempt to “restyl[e]” or
“re-write” his complaint. Rather than to allege wrongful termination, the union argued,
Hunter’s reply recharacterized the breach of contract causes of action as being based on
the NBPA’s decision to terminate him without compensation.
6. The ruling
The trial court denied the NBPA’s special motion to strike. The court first found
that the “grav[a]m[e]n of the breach of contract claims are simply that the NBPA
terminated the contract.” (Italics added.) However, the court then ruled that those same
outstanding reimbursements, and Employee shall not be entitled to any compensation
after the date of such termination.”
Under paragraph 7.b., the “Employer’s sole and exclusive obligation will be to
pay Employee his base compensation and benefits (to the extent benefits are allowed to
continue under law) for the remaining term of this Agreement, and Employee shall not be
entitled to any other compensation after the date of such termination, except any accrued,
but unused or unpaid, vacation or compensation, and any unreimbursed expenses
incurred in conformance with this Agreement prior to such termination.”
6
causes of action were based on protected activity. Quoting at length from
Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, the court reasoned that
the conduct that formed the basis of the contract allegations involved the widely
publicized interest in Hunter’s job performance and the subpoena from the United States
Attorney’s office.
The court observed that Hunter’s opposition to the anti-SLAPP motion shifted
focus of his complaint from wrongful termination to breach by failure to pay him the
compensation due under the contract. As Hunter had not pled the latter type of breach,
the court allowed him to amend his complaint to conform to the prima facie showing of
the probability of prevailing on the merits that he made in opposition to the special
motion to strike. The court reasoned that Hunter’s opposition to the special motion to
strike had demonstrated an enforceable contract that required payment in the event of
termination and that “[t]here is ample evidence on each of the four [contract] claims.”
The NBPA’s timely appeal ensued.
CONTENTION
The NBPA contends that the trial court erred as a matter of law in permitting
Hunter to amend his complaint.
DISCUSSION
Section 425.16, subdivision (b)(1) provides: “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.”
There are two steps to the analysis of an anti-SLAPP motion brought under
section 425.16, subdivision (b)(1). “First, the court decides whether the defendant has
made a threshold showing that the challenged cause of action is one ‘arising from’
protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been
made, it then must consider whether the plaintiff has demonstrated a probability of
7
prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) “Only a
cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to
being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We review an order granting or denying an anti-SLAPP motion de novo. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) We consider the “pleadings,
and supporting and opposing affidavits stating the facts upon which the liability or
defense is based.” (§ 425.16, subd. (b)(2).) We do not weigh credibility nor compare the
weight of the evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3.)
The NBPA’s appeal concerns solely the second of the two prongs under the anti-
SLAPP procedure. The union contends that Hunter failed to allege a theory of breach of
contract on which he could prevail with the result the court was required to grant its
motion to strike and award it fees and costs. Despite this result, the NBPA contends, the
court allowed Hunter to amend to assert a “new” theory of breach, namely the failure to
pay him the compensation due under the contract. This is an interesting question, which
we need not address because we agree with Hunter that none of his four contract-based
causes of action arises from protected activity and hence none is subject to an anti-
SLAPP motion to strike.4
Section 425.16, subdivision (e) defines acts in furtherance of the rights of petition
and free speech to include “any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official proceeding authorized
4
Hunter’s argument in his respondent’s brief that his complaint does not arise from
protected activity is made as an alternative basis for affirmance. A respondent may assert
error in aid of affirmance. (City of Glendale v. Crescenta etc. Water Co. (1955)
135 Cal.App.2d 784, 798.)
8
by law,” in connection with an issue under consideration or review by such bodies or
officials, or in a “public forum in connection with an issue of public interest.”5
Analysis of the first prong focuses on the substance of the lawsuit. “[T]he
statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act
underlying the plaintiff’s cause of action must itself have been an act in furtherance of the
right of petition or free speech. [Citation.]” (City of Cotati v. Cashman, supra,29 Cal.4th at p. 78, italics added.) “[T]he critical point is whether the plaintiff’s cause of
action itself was based on an act in furtherance of the defendant’s right of petition or free
speech.” (Ibid., italics added.) “The ‘principal thrust or gravamen’ of the claim
determines whether section 425.16 applies.” (Mann v. Quality Old Time Service, Inc.
(2004) 120 Cal.App.4th 90, 103.) To resolve the issue, we look to the allegations in the
complaint. (§ 425.16, subd. (b)(2).) We examine the complaint in a fair and
commonsense manner and we broadly construe the anti-SLAPP statute (Id., subd. (a)).
Notwithstanding the anti-SLAPP statute must be construed broadly (Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187), its boundaries are not
limitless. “[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.] . . . [W]hen 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
5
Subdivision (e) of section 425.16 reads, “As used in this section, ‘act in
furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) any written or oral
statement or writing made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law, (2) any written or oral statement or writing
made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest, or (4) 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.”
9
cause of action to the anti-SLAPP statute.” (Id. at p. 188.) Likewise, the “motive the
defendant may have had in undertaking its activities, or the motive the plaintiff may be
ascribing to the defendant’s activities” is irrelevant. (Tuszynska v. Cunningham (2011)
199 Cal.App.4th 257, 269, italics added; see Wallace v. McCubbin (2011)
196 Cal.App.4th 1169, 1183 [“an alleged act is incidental to a claim, and incidental to
any unprotected activity . . . only if the act is not alleged to be the basis for liability.”].)
“That a cause of action arguably may have been triggered by protected activity does not
entail that it is one arising from such.” (City of Cotati v. Cashman, supra, 29 Cal.4th at
p. 78, italics added.) The decisive question is not what the defendant’s motive was for
the act, but whether “the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.” (Ibid.)
In Episcopal Church Cases (2009) 45 Cal.4th 467, after a local church
disaffiliated itself from the larger general church, the two churches claimed ownership of
the local church’s property and the building on the property. (Id. at p. 472.) The
defendants argued that the lawsuit arose from the protected activity of expressing
disagreement with the higher church authorities concerning church governance and then
in disaffiliating from the general church. (Id. at p. 477.) The Supreme Court disagreed,
holding that while the protected activity “lurk[ed] in the background of this case, the
actual dispute concern[ed] property ownership rather than any such protected activity”
within the meaning of section 425.16. (Id. at p. 473.)
The Supreme Court explained, “ ‘[t]he mere fact that an action was filed after
protected activity took place does not mean the action arose from that activity for the
purposes of the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the
critical consideration is whether the cause of action is based on the defendant’s protected
free speech or petitioning activity.’ [Citation.] In filing this action, the Los Angeles
Diocese sought to resolve a property dispute. The property dispute is based on the fact
that both sides claim ownership of the same property. This dispute, and not any protected
activity, is ‘the gravamen or principal thrust’ of the action. [Citation.] The additional
fact that protected activity may lurk in the background—and may explain why the rift
10
between the parties arose in the first place—does not transform a property dispute into a
SLAPP suit. Accordingly, the trial court erred in treating this as a SLAPP suit subject to
section 425.16’s special motion to dismiss.” (Episcopal Church Cases, supra, 45 Cal.4th
467, 477-478.)
Here, the pleadings and declarations in connection with the anti-SLAPP motion
show that in bringing his four causes of action against the NBPA, Hunter sought to
resolve a contract dispute based the union’s act of repudiating and terminating his
employment contract before the end of its term. As the trial court acknowledged, the
gravamen “or principal thrust” of the lawsuit here is that the union terminated the
contract. The contract causes of action are based on the alleged breach of the 2010
extension by terminating it before the end of the term. The unamended complaint
alleges: “Fisher and the NBPA breached the Employment Contract by discharging
Hunter before the end of his employment term under the employment Contract and 2010
Extension . . . .” and “positively indicated to Hunter that they would not meet the
requirements of the contract, thereby expressly repudiating the Employment Contract and
the 2010 Extension,” “thus interfering with and preventing Hunter from receiving the
benefits he was entitled to receive under the Employment Contract and the 2010
Extension.” Hunter’s disagreement with the NBPA is not protected activity; it is a
garden-variety contract dispute.
The NBPA goes to great lengths6 to bring the four contract causes of action within
the ambit of protected activity. It argues that Hunter admitted that the union “terminated
him” as a “direct result” of the internal investigation. (Italics added.) Yet, the internal
investigation and its report is not an “official proceeding authorized by law” as
contemplated by section 425.16, subdivision (e). (Italics added.) The union is not a
governmental agency, and the proceedings of its executive committee are not reviewable
6
It was the NBPA, not Hunter’s complaint or affidavits, that brought the
United States Attorney’s investigation and subpoena, the indictment, and the myriad
news articles to the trial court’s attention in its request to take judicial notice attached to
its demurrer.
11
by writ of mandate. (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501,
1508.) The NBPA’s protocol was not equivalent to a state statute. (See Vergos v.
McNeal (2007) 146 Cal.App.4th 1387, 1396, fn. 8.) Nor was the union “ ‘acting in the
capacity of a governmental official performing an “official duty.” ’ [Citation.]”
(Olaes v. Nationwide Mutual Ins. Co., supra, at p. 1508; compare Vergos v. McNeal,
supra, at p. 1396 [“Statutory hearing procedures qualify as official proceedings
authorized by law for § 425.16 purposes”] & Kibler v. Northern Inyo County Local
Hospital Dist. (2006) 39 Cal.4th 192, 198-201 [statutory procedure for hospital peer
review qualified as official proceeding under § 425.16.].)7
The union also quotes from the complaint’s allegations that Fisher and Wior
“ ‘orchestrated a series of actions that would eventually lead to Hunter’s termination by
the NBPA.’ ” Such actions, the union asserts, included statements made to the press,
which statements precipitated a criminal investigation by the government, the internal
investigation, and actions and statements made by the union based on the internal
investigation. Accepting that the NBPA was motivated to terminate the contract in part
by the results of the internal investigation, which investigation in turn was triggered in
part by the subpoenas from the United States Attorney’s Office, the NBPA’s motive is
irrelevant in the analysis of the first anti-SLAPP prong. “[C]auses of action do not arise
from motives; they arise from acts.” (Wallace v. McCubbin, supra, 196 Cal.App.4th at
p. 1186.) Nor is motive an element of breach of contract. (Cf. Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1367 [listing four elements of a cause of action
for breach of contract].)
7
The trial court’s citation to title 29 of the United States Code section 431(a)(5)
does not support its conclusion that the union’s internal investigation was an official
proceeding. Section 431(a)(5) provides that a labor organization who disciplines or
removes officers or agents for breach of trust must file a report with the Secretary of
Labor showing the provisions made and procedures followed. This reporting requirement
does not impose an affirmative duty to conduct an investigation or mandate the
procedures that must be used in an investigation. (29 U.S.C. § 431(a)(5)(H).)
12
The NBPA next argues that the four contract causes of action arise from an issue
of public interest simply because of statements Fisher and Wior made to the press or the
statements made in the internal investigation. (§ 425.16, subd. (e).) Citing Hecimovich v.
Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, the NBPA
argues that Hunter served in a high profile job and his leadership was a matter of public
interest. Hecimovich is inapposite. A question there was whether defamation suits can
be subject to a special motion to strike. (Id. at p. 464.) The plaintiff’s retaliation,
defamation, and breach of contract lawsuit involved an issue of public interest because
the acts underlying the plaintiff’s causes of action were “communications and conduct,”
namely statements parents and the parent teacher organization made about the plaintiff’s
fitness as a fourth grade basketball coach. (Id. at pp. 465-466, 473-474.) The court
stated, “the safety of children in sports is also an issue of public interest -- which issue, as
shown by plaintiff’s own pleading and declaration, was at the heart of his dispute with
defendants.” (Id. at p. 467.) As for the plaintiff’s contract cause of action, there was no
evidence of a contract. (Id. at p. 475.) Here by contrast, the issue at the heart of Hunter’s
four breach of contract causes of action against the NBPA was the union’s act of
terminating Hunter’s employment contract before the end of its term for which he seeks
contract damages. This is not a public issue and not protected activity, even if Hunter is a
public figure. (McConnell v. Innovative Artists Talent & Literary Agency, Inc. (2009)
175 Cal.App.4th 169, 180 [“no one would suggest that a statement or writing firing an
employee is protected First Amendment activity.”].)
Our conclusion here is not influenced by Nesson v. Northern Inyo County Local
Hospital Dist. (2012) 204 Cal.App.4th 65 (Nesson), disapproved on other grounds in
Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686, fn. 18, upon which
the NBPA relies. Nesson was a radiologist who sued the hospital because a medical
executive committee summarily suspended his medical staff privileges causing the
hospital to terminate his contract. (Nesson, at p. 56.) Each of the causes of action was
founded on Nesson’s contention that he could not be terminated based on the peer
review’s summary suspension of his privileges. (Id. at p. 83.) Unlike Nesson, which
13
arose from a hospital peer review hearing concerning the staff physician, which process is
an “ ‘official proceeding authorized by law’ ” (id. at pp. 77-78), Hunter’s lawsuit does not
arise out of the internal investigation, which in any event, is not an official proceeding
authorized by law. Also, unlike Nesson, Hunter’s allegations are not that the union
terminated his contract based on the internal investigation or based on Fisher’s and
Wior’s campaign to oust him, but that the union terminated the contract in violation of the
contract’s terms.
In ruling that Hunter’s complaint arose out of protected activity, the trial court
here found that the CBA negotiations, Hunter’s leadership, the federal subpoena, and the
possibility of Hunter’s termination were matters of public interest, widely reported in the
press, and “qualify 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.’ ” (Italics added.) However, “[i]f the allegations of protected
activity are merely incidental to a cause of action based essentially on nonprotected
activity, the allegations will not transform the non-protected cause of action into an action
subject to the anti-SLAPP law. [Citations.] The focus on the gravamen of the action
does not implicate ‘some philosophical thrust or legal essence of the cause of action.’
[Citation.] Instead, courts are to focus on the acts on which liability is alleged to be
based. [Citation.]” (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th
809, 823.) The investigation and the questions about Hunter’s leadership, while lurking
in the background of this case, are incidental to and not alleged as a basis for Hunter’s
claims for breach of the employment contract.
Finally, the trial court’s reliance on Greka Integrated, Inc. v. Lowrey, supra,
133 Cal.App.4th 1572, was misplaced. There, the statements that gave rise to the lawsuit
were protected activity (§ 425.16, subd. (e)) because they contained information the
defendant disclosed to his attorney, in deposition, trial testimony, and in response to
subpoenas during an investigation by the district attorney. (Greka, at pp. 1576 & 1580.)
Here, by contrast, Hunter’s breach of contract causes of action against the NBPA do not
arise from any statements made during the internal investigation or elsewhere.
14
As we have concluded that Hunter’s four contract causes of action do not “aris[e]
from” protected activity (§ 425.16, subd. (b)(1)), we need not reach the second prong of
the anti-SLAPP analysis. We will affirm the decision if the trial court was correct for any
reason, regardless of the correctness of the grounds upon which it reached its conclusion.
(Hardin v. PDX, Inc. (2014) 227 Cal.App.4th 159, 166.)
DISPOSITION
The order is affirmed. Hunter as prevailing party shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
EGERTON, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
15