Osborne v. Pleasanton Automotive Co., LP ( 2024 )

Filed 10/31/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
EVA OSBORNE,
Plaintiff and Respondent,
A167118
v.
(Alameda County
PLEASANTON AUTOMOTIVE
Super. Ct. No. RG20058903)
COMPANY, LP, et al.,
Defendants;
BOB SLAP,
Defendant and Appellant.
In March 2020, Plaintiff Eva Osborne sued Defendants Pleasanton
Automotive Company, LOP Automotive Company LP, HAG Automotive
Investments LP (collectively, HAG), and its Executive General Manager and
Market Area Vice President, Bob Slap. The suit asserted eight causes of
action for discrimination, retaliation, harassment, failure to prevent
harassment and retaliation and wage and hour violations arising from
alleged workplace misconduct by Slap during four years when Osborne was
working as Slap’s executive assistant.
Two-plus years into the litigation, Slap filed a cross-complaint against
Osborne, alleging statements in a letter she submitted to HAG’s human
resources director three months before she filed suit constituted libel,
slander, intentional infliction of emotional distress, intentional interference
with contractual relations and negligence. In response, Osborne filed a
special motion to strike (the motion) under the anti-SLAPP law (Code Civ.
Proc., § 425.16),1 contending Slap’s claims against her arose out of protected
activity she undertook in anticipation of litigation. She asserted Slap could
not show he would likely prevail on the merits because, among other reasons,
her statements were absolutely privileged by Civil Code section 47,
subdivision (2).
In a thorough, well-reasoned opinion, Alameda Superior Court Judge
Eumi Lee granted Osborne’s motion, concluding her statements were
protected activity under the anti-SLAPP statute and rejecting Slap’s
arguments that they were extortionate and illegal as a matter of law. The
court held Slap could not establish minimal merit in his claims, as required
to withstand an anti-SLAPP challenge, because Osborne’s statements were
both absolutely and conditionally privileged under Civil Code section 47 and
Slap failed to overcome the conditional privilege with a showing of malice.
Slap appealed.
Applying de novo review, we likewise reject Slap’s attempt to invoke an
exception to the anti-SLAPP statute for activity that is illegal as a matter of
law and conclude the litigation privilege bars Slap’s claims, preventing him
from meeting his burden under the second step of the anti-SLAPP analysis to
show his claims have minimal merit. We therefore affirm the trial court’s
decision granting Osborne’s motion. We need not reach Osborne’s alternative
arguments that the conditional privilege applies, that Slap has failed to show
malice or that Slap has failed to make a prima facie showing on his claims.
1 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2
BACKGROUND
We take the following facts from the pleadings and the parties’
evidence on the special motion to strike.
I.
The Human Resources Letter and the Underlying Litigation
HAG employed Slap in 1993 and promoted him several times over the
years. Slap was serving as HAG’s Market Area Vice President in 2015, when
HAG hired Osborne to serve as his executive assistant. HAG paid Osborne
on an hourly basis.
It is uncontested that, in addition to her professional duties, Slap had
Osborne perform personal errands and tasks for him. Slap alleged these
personal tasks were part of her job duties, which HAG authorized because
they “allowed Slap to focus on his duties as Market Area Vice President.”
Osborne alleged Slap “required her to perform demeaning personal tasks
such as carry his bags, launder his gym clothes, shine his shoes, cut up his
food [and] get up from her desk and come into his office for the purpose of
refilling his water glass” and she was “routinely not paid for all hours worked
and required to work overtime for which she received no overtime
compensation.”
Osborne alleged she had repeatedly complained to HAG’s controller and
Human Resources (HR) director, Nancy Cassity, about these matters, leading
Slap to retaliate against her and that HAG took no action to investigate or
remediate Slap’s conduct. In 2019, Osborne again complained to Cassity that
she was not being properly compensated for personal tasks that Slap asked
her to perform. Cassity instructed her to log all her time—for both business-
related tasks and the personal errands Slap required her to perform—and to
file any workplace-related complaints in writing.
3
According to Slap, around that same time Osborne “essentially
blackmailed” him by threatening to report his misuse of her time and
function unless he made her a salaried employee. Slap, in turn, reported this
alleged incident to Cassity.
On December 20, 2019, Osborne emailed Cassity a four-page, single
spaced letter (the HR letter), which she referred to as a “Formal Complaint,”
documenting Slap’s alleged misconduct. In it, she stated that Cassity had
recently directed her to put her concerns in writing before any action could be
taken or her concerns could be addressed, and, accordingly, she was “sending
you this letter in a final effort to have my concerns acknowledged, addressed
and resolved.” We describe the letter more fully below in the analysis section
of this opinion. In brief, the letter described at length instances of Slap’s
alleged misconduct, accused him of repeatedly making inappropriate and
demeaning requests of her, stated he refused to allow her to log all of her
time and repeatedly failed to ensure she was paid for all the work he asked
her to do, stated she had discussed Slap’s behavior with Cassity “on
numerous occasions” hoping Slap’s behavior would improve, stated he had
retaliated against her when she complained and said she “now” found her
working conditions “unbearable and intolerable.” At around the same time,
she contacted and retained counsel, who the following month sent an email to
HAG’s counsel inquiring about the state of the investigation HAG had told
Osborne it would undertake, demanding documents and giving notice of the
obligation to preserve evidence.
4
In March 2020, three months after sending the HR letter,2 Osborne
sued Defendants. She asserted claims solely against HAG for discrimination;
retaliation; failure to prevent harassment, discrimination, and retaliation;
and failure to pay wages and overtime. She asserted a claim for hostile work
environment harassment based on sex against all Defendants, including
Slap. Among other facts, the complaint alleged, “[i]n 2017 when Plaintiff
complained to Slap that a coworker was sexually harassing her, including
touching her inappropriately, Slap refused to investigate or take remedial
action to address her concerns. Slap then promoted the coworker to Parts
Manager and, in a subsequent lawsuit filed by the coworker, ordered Plaintiff
to lie under oath.” It also alleged that Slap “repeatedly expressed that . . . he
hated all women.”
In August 2022, Slap filed his cross-complaint, contending twenty-five
statements in the HR letter, as well as one oral statement Osborne made to
Cassity, were false. Based on the allegedly false statements, he asserted
claims against Osborne for libel, slander per se, intentional infliction of
emotional distress, intentional interference with contractual relations, and
negligence. Those allegedly false statements include:
(1) that Slap told Osborne he hated all women;3
(2) that Osborne had complained to Slap that a coworker was
sexually harassing her;
2Osborne filed the suit on March 16, 2020, shortly after having filed a
complaint and received a right to sue letter from the Department of Fair
Employment and Housing (DFEH).
3 The HR letter does not contain this statement, but Osborne allegedly
said this to Cassity in a December 2019 meeting.
5
(3) that Slap forced Osborne to carry multi-gallon water containers,
while she was eight-months pregnant, over her objections and against her
doctor’s orders;
(4) that Slap demanded Osborne put his personal purchases on her
credit card;
(5) that Slap pressured Osborne to loan him money;
(6) that Slap demanded that Osborne slice his food;
(7) that Slap slammed his water cup on Osborne’s desk in response
to her request to pick up her sick child from school, and then demanded that
she re-fill his cup before she left;
(8) that Slap forced her to accompany him into a hospital room,
while he was clothed in just a hospital gown, and while he answered
“personal questions” from medical professionals;
(9) that Slap forced Osborne to take delivery of his new dog while he
was out of town;
(10) that Slap asked Osborne to clean up his dog’s excrement;
(11) that Slap attempted to conspire against HAG to provide Osborne
with a de facto, off-the-books pay increase;
(12) that Slap denied her a salary;
(13) that Slap did not allow Osborne to log her hours for the time she
spent performing personal errands for him;
(14) that Slap instructed her not to contact HR when it would have
been appropriate to do so; and
(15) that Slap had Osborne doing only personal work for him over the
four prior years of her employment.
6
II.
The Anti-SLAPP Motion and Briefing
Osborne filed a special motion to strike Slap’s cross-complaint. She
argued the “[p]relitigation statements” she made in the HR letter that gave
rise to Slap’s claims against her were protected activity because they were
made in connection with potential litigation that was contemplated in good
faith and constituted protected activity under section 425.16,
subdivision (e)(1) and (e)(2). Further, she argued that because the
statements were made in connection with potential litigation, they were
protected by the litigation privilege established by Civil Code section 47,
subdivision (b). As evidence that the December 19, 2019 HR letter was sent
in anticipation of litigation, she provided a declaration stating that she had
been contemplating litigation in the days leading up to December 19, 2019,
and that she had retained a law firm on December 27, 2019, and attached a
copy of a December 20, 2019 email sent to her by that law firm conveying a
retainer agreement and requesting a retainer.
Osborne also asserted that Civil Code section 47, subdivision (c)
conditionally privileges the HR letter, subject to a finding of malice, because
it was a workplace harassment complaint and asserted that Slap had
proffered no evidence demonstrating malice in the form of “ill will going
beyond that which the occasion . . . justifies.” In addition, Osborne asserted
Slap could not meet his burden of prevailing on the merits because he could
not overcome either asserted privilege and because he failed to adduce prima
facie evidence supporting one or more elements necessary to each of his
claims.
In his opposition, Slap attacked Osborne’s assertions of privilege. He
argued the absolute litigation privilege did not apply because no party
7
anticipated litigation in December 2019. He then challenged Osborne’s
definition of “malice” for purposes of the conditional privilege, contending he
demonstrated malice through evidence that Osborne knew her statements to
Cassity were false and evidence that she engaged in what he referred to as
“attempted blackmail.” He also claimed to have proffered prima facie
evidence in support of each element of his claims.
In her reply brief, Osborne curiously suggested she “made no such
claim” that the HR letter is absolutely privileged and focused on the
conditional privilege and Slap’s asserted failure to show malice as well as on
the legal insufficiency and inadequacy of the prima facie showing supporting,
Slap’s claims.
The trial court issued a tentative opinion granting the motion, but at
the hearing Slap disputed having conceded the HR letter was protected
activity, and for the first time argued, citing Flatley v. Mauro (2006)
39 Cal.4th 299 (Flatley), that the HR letter’s statements cannot be protected
because they constitute extortion or blackmail. Slap’s counsel also requested
the opportunity to submit supplemental evidence and briefing to address the
absolute litigation privilege, claiming that “the sole basis of [Osborne’s]
motion was based upon not absolute privilege, but conditional privilege.”
Osborne’s counsel argued that her opening brief had argued absolute
privilege based on her having written the letter while in good faith
contemplating litigation, and the reply brief suggestion “we were
withdrawing the absolute privilege argument” reflected a miscommunication
and Osborne was not withdrawing her claim that the HR letter fell within the
absolute litigation privilege.
8
At the conclusion of the hearing, the court granted counsel’s “request
for a short additional brief” on whether the HR letter was absolutely
privileged and allowed the parties to submit additional evidence.
Both parties submitted supplemental briefing and evidence. Slap’s
supplemental briefing argued Osborne had “extorted” Slap and “ ‘[e]xtortion
is not a constitutionally protected form of speech’ under Anti-SLAPP
statutes.” Osborne’s countered that the Flatley exception to assertedly
protected speech only applies where the party admits, or the evidence
“ ‘conclusively establishes’ ” the speech was illegal.
After receiving the supplemental briefing and evidence, the trial court
took the matter under submission and issued a final order granting Osborne’s
motion to strike. The court again found that “Slap appear[ed] to concede that
the HR letter constitutes protected speech.” However, the court also
addressed and rejected Slap’s argument that “the HR letter was not
privileged because it constituted extortion, which is not protected speech.”
The Flatley exemption did not apply “because Osborne has not conceded the
underlying activity is illegal, nor does the evidence (the HR letter itself)
reflect that the HR letter was an attempt at extorting Slap before filing suit.”
The court further concluded that Osborne’s evidence, including her own
declaration stating she had been contemplating litigation, the December 2019
email from a law firm attaching a proposed engagement agreement with
attorney Tyler Paetkau and the fact that Osborne in fact promptly sued HAG
and Slap for harassment and other claims, established that Osborne sent the
HR letter in anticipation of a lawsuit. Based on that, the court held the HR
letter was “protected activity” and met the requirements for the absolute
litigation privilege. The court also held, in the alternative, that the qualified
privilege for communications with interested parties applied and Slap’s
9
proffered evidence was insufficient to “establish[] malice for purposes of
overcoming [the] qualified litigation privilege.” “[B]ecause Slap ha[d] not
overcome the litigation privilege defense,” the court held he had “fail[ed] to
establish a probability of prevailing on the merits of his cross-claims.” The
court did not reach the arguments about the sufficiency of Slap’s cross-claims.
Slap timely appealed.
DISCUSSION
I.
Legal Standards
The purpose of the anti-SLAPP statute is to “ ‘prevent and deter
“lawsuits [referred to as SLAPP’s] brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.” ’ ” (Flatley, supra, 39 Cal.4th at p. 316.) It
accomplishes this by authorizing a special motion to strike claims arising
from any act “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.” (§ 425.16, subd. (b)(1).) We review the trial
court’s decision to grant an anti-SLAPP motion de novo. (Flatley, at pp. 325-
326.)
“ ‘A two-step process is used for determining whether an action is a
SLAPP. First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected
activity, that is, by demonstrating that the facts underlying the plaintiff's
complaint fit one of the categories spelled out in section 425.16,
subdivision (e).[4] If the court finds that such a showing has been made, it
4 Osborne contended her letter to HR, on which Slap’s claims were
based, fell within section 425.16, subdivision (e)(1) [“statement or writing
10
must then determine the second step, whether the plaintiff has demonstrated
a probability of prevailing on the claim.’ ” (Central Valley Hospitalists v.
Dignity Health (2018) 19 Cal.App.5th 203, 216 (CVH).)
“As the Supreme Court earlier instructed, at this first step of the anti-
SLAPP analysis, ‘the moving defendant bears the burden of identifying all
allegations of protected activity, and the claims for relief supported by them.’
(Baral v. Schnitt (2016) 1 Cal.5th 376, 396, italics added.) Or, as we said in
another SLAPP case—there, in affirming an order granting an anti-SLAPP
motion—‘[t]he question is what is pled—not what is proven.’
(Comstock[, supra,] 212 Cal.App.4th [at p.] 942.)” (CVH, supra,
19 Cal.App.5th at p. 217.)
Once the defendant has met its burden of identifying allegations of
protected activity and the claims for relief supported by them, the burden
shifts to the plaintiff to demonstrate its claims have “have at least ‘minimal
merit.’ ” (Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1061.) While that burden “may not be ‘high,’ he must
demonstrate that his claim[s] are legally sufficient” and that they are
“supported by a sufficient prima facie showing . . . made with ‘competent and
admissible evidence.’ ” (Comstock, supra, 212 Cal.App.4th at p. 948.) In
determining whether the plaintiff has met this burden, we “consider the
pleadings, and supporting and opposing affidavits stating the facts upon
made before a legislative, executive, or judicial proceeding”] and
subdivision (e)(2) [“statement or writing made in connection with an issue
under consideration or review by a legislative, executive or judicial body”]
because she was contemplating litigation when she prepared the letter and
sent the letter in part to cut off an “avoidable consequences” defense to a
potential suit against her employer. (Citing Comstock v. Aber (2012)
212 Cal.App.4th 931, 934-935, 944 (Comstock).)
11
which the liability or defense is based” (§ 425.16, subd. (b)(2)), and “ ‘ “accept
as true all evidence favorable to the plaintiff and assess the defendant’s
evidence only to determine if it defeats the plaintiff’s submission as a matter
of law.” ’ ” (Comstock, at p. 947.)
We review a ruling on an anti-SLAPP motion de novo, “ ‘engaging in
the same two-step process to determine, as a matter of law, whether the
defendant met its initial burden of showing the action is a SLAPP, and if so,
whether the plaintiff met its evidentiary burden on the second step.’ ” (People
ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822
(Anapol).)
Besides the anti-SLAPP statute, this case involves the litigation
privilege embodied in Civil Code section 47, subdivision (b). The anti-SLAPP
statute is a procedural device to screen out meritless claims based on certain
speech and petitioning activity. However, the litigation privilege is a
substantive law that provides an absolute defense to tort liability for certain
kinds of speech. Although the litigation privilege sometimes bears on the
analysis of the first (protected activity)5 or second (minimal merit)6 steps of
the anti-SLAPP analysis, the anti-SLAPP statute and the litigation privilege
5 “There is, of course, a relationship between the litigation privilege
and the anti-SLAPP statute. Past decisions of this court and the Court of
Appeal have looked to the litigation privilege as an aid in construing the
scope of [section 425.16,] subdivision (e)(1) and (2) with respect to the first
step of the two-step anti-SLAPP inquiry—that is, by examining the scope of
the litigation privilege to determine whether a given communication falls
within the ambit of subdivision[] (e)(1) and (2).” (Flatley, supra, 39 Cal.4th at
pp. 322-323.)
6 “ ‘In the anti-SLAPP context, the litigation privilege presents “a
substantive defense a plaintiff must overcome to demonstrate a probability of
prevailing.” (Flatley v. Mauro[, supra,] 39 Cal.4th [at p.] 323.)’ ” (Crossroads
Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757,
786 (Crossroads).)
12
are not coextensive. (See Crossroads, supra, 13 Cal.App.5th at pp. 786-787,
788.) Civil Code section 47 codifies common law privileges that operate as
defenses against liability. (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 737.) These privileges generally immunize a defendant from
torts arising from communicative acts to which the privileges apply. (Rodas
v. Spiegel (2001) 87 Cal.App.4th 513, 518-519.)
The litigation privilege “ ‘is not limited to statements made during a
trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1241 (Action Apartment).) A prelitigation communication
may be privileged but “only when it relates to litigation that is contemplated
in good faith and under serious consideration.” (Action Apartment, at
p. 1251; Civ. Code, § 47, subd. (b).) The litigation privilege “is absolute in
nature, applying ‘to all publications, irrespective of their maliciousness.’ ”
(Action Apartment, at p. 1241.) “ ‘Any doubt as to whether the privilege
applies is resolved in favor of applying it.’ ” (Crossroads, supra,13 Cal.App.5th at p. 786.) “If there is no dispute as to the operative facts, the
applicability of the litigation privilege is a question of law.” (Kashian v.
Harriman (2002) 98 Cal.App.4th 892, 913.)
Civil Code section 47, subdivision (c) codifies the privilege for certain
communications made “to a person interested therein.” The interested party
privilege been applied to statements made in workplace complaints and
investigations. (See, e.g., McGrory v. Applied Signal Technology, Inc. (2013)
212 Cal.App.4th 1510, 1538; Comstock, supra, 212 Cal.App.4th at p. 953.)
Unlike the litigation privilege, the interested party privilege is conditional
rather than absolute; only “a finding of malice will prevent the
communication from being found privileged.” (Cruey v. Gannett Co. (1998)
13
64 Cal.App.4th 356, 367; Civ. Code, § 47, subd. (c).) “Malice” in this context
may be “ ‘ “established by a showing that the publication was motivated by
hatred or ill will towards the plaintiff or by a showing that the defendant
lacked reasonable grounds for belief in the truth of the publication and
therefore acted in reckless disregard of the plaintiff’s rights . . . .” ’ ” (Hui v.
Sturbaum (2014) 222 Cal.App.4th 1109, 1121.)
II.
The Statements on Which Slap Bases His Cross-Claims Are Protected
Activity Under Section 425.16, Subdivision (e)(1) and (2), and the
Flatley Exception Does Not Apply.
We begin with the threshold inquiry into whether the acts underlying
Slap’s cross-claims arise from the furtherance of protected activity as defined
by the anti-SLAPP law. Slap’s cross-complaint contains a list of what it
alleges are “false” and “defamatory” statements Osborne made in a
December 2019 letter to HAG’s HR department. Each of the five tort claims
that follow—libel, slander per se, intentional interference with contractual
relationships, intentional infliction of emotional distress and negligence—
incorporates these alleged statements and relies on them as the primary
basis of the claim. Slap alleges Osborne made the statements to HR with
certain intent and knowledge and that her statements were unprivileged and
malicious, but the only acts alleged in support of the cross-claims consist of
Osborne’s statements in the HR letter. Neither privilege nor malice directly
bears on step one of the anti-SLAPP analysis, which asks simply whether the
plaintiff’s cause of action fits one of the categories set forth in subdivision (e)
of section 425.16. (Navallier v. Sletten (2002) 29 Cal.4th 82, 88; see id. at
p. 92 [rejecting argument that illegitimacy of defendant’s acts must be
addressed at first step of anti-SLAPP analysis]; Crossroads, supra,13 Cal.App.5th at p. 787 [conduct protected by Civ. Code, § 47 does not
14
automatically satisfy “in connection with” requirement under
subdivision (e)(2) of anti-SLAPP statute].) Slap does not deny that his cross-
claims are all based on statements made by Osborne in the December 2019
HR letter. Nor does he contest Osborne’s argument that the statements in
the HR letter are prelitigation statements that generally fall within
subdivision (e)(1) and (e)(2) of the anti-SLAPP statute that identify protected
activity.
Slap’s sole argument that the challenged statements are not protected
activity under the anti-SLAPP statute is that they were made in furtherance
of an attempted extortion and thus criminal as a matter of law and
unprotected under the rule of Flatley.
In Flatley, our Supreme Court held that “section 425.16 cannot be
invoked by a defendant whose assertedly protected activity is illegal as a
matter of law and, for that reason, not protected by constitutional guarantees
of free speech and petition.” (Flatley, supra, 39 Cal.4th at p. 317.) There, an
attorney, Mauro, threatened a well-known entertainer, Michael Flatley, to
publicly accuse him of rape and other unspecified criminal violations of
immigration, tax and social securities laws, and report him to federal
authorities if he did not promptly pay an amount of “seven figures” or, “at
minimum, $1 million.” (Id. at pp. 305-311, 329-330.) Flatley did not pay.
(Id. at p. 311.) Mauro then sued Flatley in Illinois on behalf of the woman
who alleged Flatley had raped her, and the two appeared on television
describing the alleged rape in lurid detail. (Id. at pp. 305-306.) Flatley
responded by suing Mauro in California for civil extortion and other torts.
(Id. at pp. 305-306.) Mauro and his client, who eventually dismissed their
Illinois actions against Flatley (id. at p. 306, fn. 2), moved to strike Flatley’s
complaint under the anti-SLAPP statute. (Flatley, at p. 306.)
15
Only after concluding, based on its review of the pleadings, the letter,
and declarations submitted by the parties, that Mauro’s letter and follow up
phone calls reiterating the threats and demanding money constituted
“criminal extortion as a matter of law,” did the court hold that section 425.16
did not apply. (See Flatley, supra, 39 Cal.4th at pp. 332-333.) The opinion
makes plain that the court’s exception to the first step, protected activity
requirement in the anti-SLAPP law is narrow. The court held only that
“where a defendant brings a motion to strike under section 425.16 based on a
claim that the plaintiff’s action arises from activity by the defendant in
furtherance of the defendant’s exercise of protected speech or petition rights,
but either the defendant concedes, or the evidence conclusively establishes,
that the assertedly protected speech or petition activity was illegal as a
matter of law, the defendant is precluded from using the anti-SLAPP statute
to strike the plaintiff’s action.” (Id. at p. 320, italics added.)
The Supreme Court emphasized in Flatley and its progeny that a
defendant need “only make a prima facie showing that the underlying
activity falls within the ambit of the [anti-SLAPP] statute.” (Flatley, supra,39 Cal.4th at p. 317; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th
811, 828 (conc. opn. of Kennard, J.) [defendant “need only show the existence
of a legitimate issue” as to conduct’s validity].) Indeed, “[i]f . . . a factual
dispute exists about the legitimacy of the defendant’s conduct, it cannot be
resolved within the first step [of the anti-SLAPP inquiry] but must be raised
by the plaintiff in connection with the plaintiff’s burden to show a probability
of prevailing on the merits.” (Flatley, at p. 316.) Not surprisingly, then, the
courts have consistently held that the Flatley exception from the anti-SLAPP
statute is narrow. (E.g., Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 835
(Flickinger) [“The Flatley court went to great lengths to limit the scope of the
16
crime-as-a-matter-of-law exception to section 425.16 protection”]; Zucchet v.
Galardi (2014) 229 Cal.App.4th 1466, 1478 [“Our Supreme Court has
emphasized that the exception for illegal activity is very narrow and applies
only in undisputed cases of illegality. ‘If . . . a factual dispute exists about the
legitimacy of the defendant’s conduct, it cannot be resolved within the first
step but must be raised by the plaintiff in connection with the plaintiff’s
burden to show a probability of prevailing on the merits’ ”]; Mendoza v. ADP
Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654
[Supreme Court’s use of the phrase “illegal” was intended to mean criminal,
and not merely violative of statute]; City of Montebello v. Vasquez (2016)
1 Cal.5th 409, 424 [legal or factual dispute regarding claim of illegality
precludes defeating anti-SLAPP motion at the first step].)
There was no such concession with respect to Osborne’s 2019 letter to
HAG’s HR department. Slap points to his own “uncontroverted [deposition]
testimony that he was blackmailed[7] by Ms. Osborne on December 10, 2019,
when she threatened that if he did not make her an exempt, salaried
employee that she would report to higher ups at HAG that Ms. Osborne had
been doing Mr. Slap’s personal errands on company time.” He argues his
testimony was “corroborated” by Cassity’s testimony “that he reported this
blackmail attempt contemporaneously to her.” Finally, he contends that
Osborne did not “dispute that she blackmailed [him].” Thus, by his
reckoning, “ ‘the evidence conclusively establishes that the assertedly
protected speech or petition activity was illegal as a matter of law.’ ”
Slap’s argument is fundamentally flawed. The premise of his argument
is that the conversation he describes in which Osborne threatened to report
him to HAG “higher ups” if he “did not make her an exempt, salaried
7 Slap equates the term “blackmail” with the “crime of extortion.”
17
employee,” ipso facto amounts to the crime of extortion or attempted
extortion as a matter of law. His opening brief assumes that is the case
without analysis.
Not surprisingly, Osborne disagrees, contending, “Slap’s argument that
his evidence conclusively established the HR Letter was extortionary is
wrong” and the HR letter was a “plainly a legitimate exercise of Osborne’s
right to complain about illegal conduct: e.g., harassment, retaliation, and her
employer’s failure to pay her properly.” Osborne cites CALCRIM No. 1830,
which sets forth the elements of the criminal offense of extortion.
Slap, by contrast, fails to set forth or discuss all the elements of the
offense, fails to cite the criminal extortion statutes and explain how they
apply to this case, and fails to discuss any of the post-Flatley cases addressing
the exception it established. (See, e.g., Flickinger, supra, 85 Cal.App.5th at
p. 836 [Flatley exception did not apply to defendant’s demand letter which
“bears no resemblance to the ‘extreme’ conduct in Flatley which warranted a
‘narrow’ exception” to anti-SLAPP protections]; Geragos v. Abelyan (2023)
88 Cal.App.5th 1005, 1028 [if threat to report misappropriation of funds to
State Bar was made, it had a reasonable connection to the underlying dispute
and therefore was not comparable to the “extreme” conduct found
unprotected by Flatley]; Malin v. Singer (2013) 217 Cal.App.4th 1283, 1288,
1298-1299 [Flatley exception did not apply where demand letter, though
accusing plaintiff of crimes, made no overt threat to report plaintiff to
prosecuting agencies or to the public at large].) He also fails to discuss and
thus makes no attempt to draw analogies to the handful of cases applying
that narrow exception, such as Flatley itself, 39 Cal.4th at pp. 317-318;
Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1423 [defendant’s email
threatening to expose alleged criminal violations by plaintiff, unrelated to
18
any injury allegedly suffered by defendant, to federal authorities]; Lefebvre v.
Lefebvre (2011) 199 Cal.App.4th 696, 703 [false police report with subsequent
factual finding of plaintiff’s innocence]; and Novartis Vaccines & Diagnostics,
Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th
1284, 1296 [defendant conceded its acts of vandalism in support of animal
rights issues were unlawful].)
Without any such analysis or discussion, Slap’s briefs leave nothing but
unanswered questions concerning the crime he asserts Osborne committed.8
8 For example, it is not clear whether, and if so how, Slap could claim a
completed act of extortion given his concession that Osborne “did not achieve
the result she desired.” Further, he does not explain how his apparent theory
of attempted extortion can be squared with his testimony stating that
Osborne’s allegedly extortionate threat was made to him in a conversation
they had in person. Attempted extortion requires a threat conveyed in
writing. (See Pen. Code, § 523.)
Nor does Slap explain how the other elements of extortion apply. Fear,
for purposes of extortion, requires a threat of at least one of five specified
types of threat. (Pen. Code, § 519; People v. Umana (2006) 138 Cal.App.4th
625, 639; see Malin, supra, 217 Cal.App.4th at p. 1299 [demand letter not
extortion where it did not fall within a § 519 category].) Slap mentions one
category in passing, a threat “[t]o expose a secret affecting” the target of the
threat or his relative.
However, as Osborne points out, “[l]ogically, one can’t blackmail
another person by threatening to reveal what is already known,” and Slap
has asserted that HAG was fully aware that Osborne was performing
personal tasks for him and in fact authorized her to do so.
Moreover, to amount to extortion, the threatened exposure must be of a
secret that, among other things, “ ‘ “affect[s] the threatened person in some
way so far unfavorable to the reputation or to some other interest of the
threatened person, that threatened exposure thereof would be likely to induce
him through fear to pay out money or property for the purpose of avoiding the
exposure.” ’ ” (Cross v. Cooper (2011) 197 Cal.App.4th 357, 387.) “ ‘Whether a
threatened exposure would have this effect on the victim is a factual
question . . . .’ ” (Ibid.)
19
It was Slap’s burden, not the court’s, to demonstrate error by
presenting authority and argument on this point. (See Hewlett-Packard Co.
v. Oracle Corp. (2021) 65 Cal.App.5th 506, 565; Eisenberg, Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2023) (Eisenberg)
¶8:17.1.) Among the most basic principles of appellate review are that a trial
court’s decision is presumed correct, and the appellant bears the burden of
presenting argument and legal authority to demonstrate error thereby
overcoming the presumption. (Eisenberg, supra, ¶¶8:15, 8:17.1.) Where, as
here, the appellant has not done so, “ ‘the court may treat [the issue] as
waived, and pass it without consideration.’ ” (People v. Stanley (1995)
10 Cal.4th 764, 793; accord, Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 [“ ‘We are not bound to develop appellants’
argument for them. [Citation.] The absence of cogent legal argument or
citation to authority allows this court to treat the contention as waived’ ”].)
These rules apply even where our review is de novo. (Eisenberg, supra,
¶8:17.2; Davies v. Sallie Mae, Inc. 168 Cal.App.4th 1086, 1096; see Clary v.
City of Crescent City (2017) 11 Cal.App.5th 274, 294.)
Even if Slap had not waived his argument that the Flatley exception
applies, we would reject it. Slap’s conclusory assertion that Osborne’s
statements to him amounted to “blackmail” and “extortion” are nothing but
characterizations unsupported by evidence or legal authority. As such, he
has fallen far short of making a conclusive showing that Osborne’s
statements amounted to extortion. (Cf. Flickinger, supra, 85 Cal.App.5th at
p. 837 [“Although plaintiff says he understood it as a threat to go accuse him
of a crime, his subjective and self-serving interpretation cannot establish
extortion as a matter of law”].)
20
Nor, contrary to Slap’s contention, do Osborne’s failures to deny she
made the statement he characterizes as a “threat” or to deny his accusation
that the statements in the HR letter are “false” amount to a concession that
she committed extortion or any other crime. In fact, after Slap accused
Osborne of blackmail in his opposition briefing to the motion, she did contest
the charge that she acted illegally and that her assertions about doing
personal work for him were false, and she has maintained these positions on
appeal. (See Zucchet v. Galardi, supra, 229 Cal.App.4th at pp. 1479-1480 [no
concession where defendant denied illegality in reply briefing and on appeal];
see also Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 828
(conc. opn. of Kennard, J.) [defendant “need only show the existence of a
legitimate issue” as to conduct’s validity”].) The trial court therefore did not
“ignore[e]” any “unconverted testimony that [Slap] was blackmailed.” (Italics
added.)
There is no “uncontested” evidence that supports Slap’s claim of
extortion, and Slap has failed to show this is “one of those rare cases in which
there is uncontroverted and uncontested evidence that establishes the crime
[of extortion] as a matter of law.” (Cross v. Cooper, supra, 197 Cal.App.4th at
p. 386.) Because Slap’s cross-claims are based on protected speech in
furtherance of her right to petition and the illegality of that speech is neither
uncontested nor conclusively established, Osborne has satisfied her burden
on the first prong of the anti-SLAPP analysis.
III.
As a Matter of Law Slap’s Cross-Claims Are Barred by the Litigation
Privilege and Thus He Cannot Meet the Second Step Requirement
That His Claims Have a Probability of Success.
As we have noted, once the defendant has established that her claims
fall within one or more of the “protected activities” categories under
21
section 475.16, subdivision (e), the burden shifts to the defendant to show a
likelihood of prevailing on the merits of his claims. “To establish a
probability of prevailing, the plaintiff ‘must demonstrate that the complaint
is both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’ ” (Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 291.) “The plaintiff must do so with admissible evidence.
[Citation.] ‘We decide this step of the analysis “on consideration of ‘the
pleadings and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.’ (§ 425.16, subd. (b).) Looking at those
affidavits, ‘[w]e do not weigh credibility, nor do we evaluate the weight of the
evidence. Instead, we accept as true all evidence favorable to the
plaintiff.’ ” ’ ” (Optional Capital, Inc. v. Akin Gump Straus, Hauer & Feld
LLP (2017) 18 Cal.App.5th 95, 112-113 (Optional Capital).) “This second step
has been described as a ‘ “summary-judgment-like procedure.” ’ [Citation.] A
court’s second step ‘inquiry is limited to whether the [opposing party] has
stated a legally sufficient claim and made a prima facie factual showing
sufficient to sustain a favorable judgment. [The court] . . . evaluates the
defendant’s showing only to determine if it defeats the plaintiff's claim as a
matter of law.’ ” (Id. at p. 113.)
Osborne asserted the litigation privilege was an absolute bar to Slap’s
complaint, and the trial court agreed. “ ‘A plaintiff cannot establish a
probability of prevailing if the litigation privilege precludes a defendant’s
liability on the claims.’ ” (Optional Capital, supra, 18 Cal.App.5th at p. 115.)
Slap challenges this ruling on appeal.
Preliminarily, Slap argues the trial court erred in finding the letter
absolutely privileged because, he contends, in the trial court Osborne argued
22
only that it was conditionally privileged. Slap fails to develop the argument
or cite any authority and thus has waived it. (Hewlett-Packard Co. v. Oracle
Corp., supra, 65 Cal.App.5th at p. 565.) Even if he had not waived it we
would reject it because, in fact, Osborne invoked the litigation privilege in her
trial court opening brief, citing Civil Code section 47, subdivision (b) and
arguing the HR letter “related to litigation that was being contemplated in
good faith.” She supported the claim with evidence. Slap responded in his
opposition brief, and when he suggested Osborne had conceded in her reply
that only the conditional privilege applied, Osborne’s counsel explained that
was not intended and, if anything, was an error. The trial court allowed both
parties to provide supplemental briefing and evidence on the subject and
ruled on the matter only after receiving that material. The matter was
therefore fully aired in the trial court, and Slap has made no effort to show
the trial court abused its discretion in addressing it. (See, e.g., People v.
ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 153-154 [trial court
has “ ‘great discretion’ ” in deciding whether to grant continuance]; Jack v.
Ring (2023) 91 Cal.App.5th 1186, 1196 [we review for abuse of discretion trial
court’s decision whether to allow parties to supplement the record and file
additional briefing].) Having made no effort to show the trial court abused its
discretion by reaching the absolute privilege issue after supplemental
briefing was permitted, Slap’s argument that the trial court erred in
addressing the absolute privilege fails.
Before turning to the parties’ arguments on the merits of the litigation
privilege, we set forth general principles governing the privilege. Although
Civil Code section 47, subdivision (b), which codifies the common law
litigation privilege, refers to a “publication or broadcast” made “[i]n any . . .
judicial proceeding,” our courts have held that communications with “ ‘some
23
relation’ to an anticipated lawsuit” are protected by the litigation privilege.
(Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) Citing cases that date back
decades, our high court explained, “numerous decisions have applied the
privilege to prelitigation communications.” (Ibid.; accord, Action Apartment,
supra, 41 Cal.4th at p. 1241 [“The privilege ‘is not limited to statements made
during a trial or other proceedings, but may extend to steps taken prior
thereto, or afterwards’ ”].) “ ‘The principal purpose of [the litigation privilege]
is to afford litigants and witnesses [citation] the utmost freedom of access to
the courts without fear of being harassed subsequently by derivative tort
actions.’ ” (Action Apartment, supra, 41 Cal.4th at p. 1241.) Indeed, the
privilege “ ‘has been referred to as “the backbone to an effective and smoothly
operating judicial system.” ’ ” (Id. at p. 1248.) To achieve its broad purposes,
our courts “have given the litigation privilege a broad interpretation.” (Id. at
p. 1241.)
“To be protected by the litigation privilege, a communication must be
‘in furtherance of the objects of the litigation.’ [Citation.] This is ‘part of the
requirement that the communication be connected with, or have some logical
relation to, the action, i.e., that it not be extraneous to the action.’ ” (Action
Apartment, supra, 41 Cal.4th at p. 1251.) Slap is correct in stating that “[a]
prelitigation communication is privileged only when it relates to litigation
that is contemplated in good faith and under serious consideration.” (Ibid.)
“ ‘[W]hen the person publishing an injurious falsehood is not seriously
considering litigation,” “ ‘the publication has no “connection or logical
relation” to an action and is not made “to achieve the objects” of any litigation
[citation]. No public policy supports extending a privilege to persons who
attempt to profit from hollow threats of litigation.’ ” (Ibid.)
24
Before addressing the application of the litigation privilege to this case,
we address two preliminary matters. First, he discounts Osborne’s
declaration that she was contemplating litigation in the days before she sent
the HR letter as “self-serving” and, in essence, irrelevant because, he
contends, the “good faith and under serious consideration” test is “an
objective” one. The argument has no merit.
“In ordinary usage, the phrase ‘good faith’ is commonly understood as
referring to a subjective state of mind.” (Ceja v. Rudolph & Sletten, Inc.
(2013) 56 Cal.4th 1113, 1120; see also Bel Air Internet, LLC v. Morales (2018)
20 Cal.App.5th 924, 944 [whether person intends to exercise constitutional
right to petition government by persuading another to file lawsuit depends on
the state of mind of the person offering the persuasion].)
This is just as true in the case of the good faith standard for the
litigation privilege as it is in other contexts. Action Apartment, which Slap
cites, reflects that the standard for whether litigation is “contemplated in
good faith and under serious consideration” is a subjective, not an objective,
reasonable person test. The court held an ordinance that imposed penalties
on landlords who serve eviction notices based on facts they have no
reasonable cause to be true or on untenable legal theories was preempted by
the litigation privilege to the extent it applied to situations where litigation is
contemplated in good faith, which the court observed requires “a factual
inquiry.” (Action Apartment, supra, 41 Cal.4th at p. 1252.) The court’s
analysis indicates the litigation privilege applies when there is actual and
serious subjective contemplation of litigation even if that contemplation is
objectively unreasonable.
A declaration proffered by a defendant attesting that she was
contemplating litigation at the time of the writing is particularly probative of
25
her actual state of mind regarding contemplation of litigation. Of course, a
court is not bound by such a declaration and must consider other relevant
evidence, including circumstantial evidence, bearing on the defendant’s state
of mind, and such evidence might corroborate or might undermine the
defendant’s sworn statement. But to bar consideration of the testimony of
the only person with direct knowledge of the subject would require courts to
ignore what in many instances will be the only direct evidence of the
defendant’s good faith.9
Second, Osborne argues the HR letter is protected “because it was
necessary to address a commonly used affirmative defense by employers in
sexual harassment cases,” citing Comstock, supra, 212 Cal.App.4th 931. In
Comstock, we held an employee’s complaints to her employer’s HR manager
that her supervisor and another employee sexually assaulted her were
protected as “statements prior to litigation or other official proceedings”
under section 425.16, subdivision (e)(1) and (2) of the anti-SLAPP statute.
9 Slap cites Anapol, supra, 211 Cal.App.4th 809 for the proposition that
“[i]t has long been established that the court should not look at a person’s
intent or subjective belief, even in a declaration.” The opinion does not
support that proposition. There, an insurance company sued two attorneys
alleging they participated in a “massive insurance fraud ring” by submitting
fraudulent claims for damage from wildfires. (Id. at p. 814.) The attorneys
contended the claims they had submitted were protected by the litigation
privilege. One of the attorneys submitted two declarations about his
anticipation of litigation at the time he submitted the claims, one declaration
contradicting the other. The court held the second declaration could not
constitute prima facie evidence supporting application of the privilege. (Id. at
p. 828.) The other attorney declared that when he submitted the claims, he
believed litigation would be necessary. (Id. at p. 829.) But there was no
evidence the attorney had expressed this belief to his clients, the insureds,
and no evidence the clients anticipated litigation at the time. For those
reasons, there was no prima facie showing the claims were privileged. (Id. at
p. 830.) The court did not refuse to consider the declarations of either
attorney. It simply held they did not, under the circumstances, suffice.
26
(Comstock, at pp. 944-945.) We so held based on the defendant’s theory that
her “statements were necessary to address a commonly used affirmative
defense by an employer in a sexual harassment case—a defense, not
incidentally, that [the employer had] in fact asserted” against her in response
to her suit against him and the company. (Id. at p. 944.) The defense was
“that the employee unreasonably failed to take advantage of preventative or
corrective opportunities provided by the employer.” (Ibid.; id. at pp. 934-935.)
Osborne contends that here, as in Comstock, the HR letter was
“necessary to address a commonly used affirmative defense by employers in
sexual harassment cases.” With her anti-SLAPP motion in the trial court,
she proffered excerpts of HAG’s and Slap’s answers to the complaint. Both
included as an affirmative defense, the allegation that Osborne’s claims are
barred because she “unreasonably failed to take advantage of any
preventative or corrective opportunities provided by Defendants to avoid any
harm.”
In Comstock, as we have indicated, we applied provisions of the anti-
SLAPP statute. We went on to discuss, under step two of the anti-SLAPP
analysis, whether Comstock had demonstrated a likelihood of prevailing on
the merits of his claims and concluded he had not. (See Comstock, supra,212 Cal.App.4th at pp. 947-955.) However, we so held in part because of
Comstock’s failure to submit any admissible evidence supporting one of his
claims. (Id. at p. 952.) In addressing his other claims, we held they were
privileged, but under the Civil Code section 47, subdivision (b)(2) privilege for
statements in official proceedings and under the section 47, subdivision (c)
privilege for communications with interested parties. (See Comstock, at
pp. 952-953.) In Comstock, we did not have occasion to discuss the litigation
privilege. The Comstock holding that the alleged communication to the HR
27
department was privileged because it was necessary to respond to an
anticipated affirmative defense supports Osborne’s assertion of the litigation
privilege. However, Comstock does not definitively hold that fact alone would
suffice to establish the litigation privilege (as opposed to protected activity
within the meaning of the anti-SLAPP statute), and the parties have neither
discussed nor provided authority on the subject.10 What we can say with
confidence is that the fact that the HR letter was necessary to respond to the
potential affirmative defense that defendants eventually raised in the case
Osborne filed satisfies the litigation privilege requirement that the
communication be in furtherance of the litigation, that is, that it “function as
a necessary or useful step in the litigation process and must serve its
purposes.” (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146; see
Silberg v. Anderson (1990) 50 Cal.3d 205, 219-220.)
We therefore turn to the application of the standards governing the
litigation privilege to the evidence in this case and, as we shall explain,
conclude the undisputed evidence establishes that the HR letter was sent in
anticipation of litigation and is protected by the litigation privilege as a
10 In the anti-SLAPP context, we note that some courts have held a
communication that is a “necessary prerequisite to litigation” is not a
protected activity under the anti-SLAPP statute if litigation is not actually
anticipated and is only a possibility. (E.g., Mission Beverage Co. v. Pabst
Brewing Co., LLC (2017) 15 Cal.App.5th 686, 703; Bel Air Internet, LLC v.
Morales, supra, 20 Cal.App.5th at p. 941.) Our decision in Comstock, in
which litigation was initiated within two months of the alleged sexual assault
and the statements the plaintiff allegedly made about it, is not in tension
with Mission Beverage and Bel Air, but again, neither those cases nor our
decision in Comstock specifically address the litigation privilege. (See
Comstock, supra, 212 Cal.App.4th at pp. 934-937.)
28
matter of law.11 The evidence establishes the following facts, none of which
Slap disputes.
While working at HAG as Slap’s personal secretary, Osborne performed
both personal and business-related tasks for Slap.12 Osborne complained to
HAG that she was not being compensated for all the time she spent
performing personal tasks for Slap and that HAG had declined her request to
become a salaried rather than hourly employee. (Slap denies the truth of this
and other accusations asserted in Osborne’s HR letter but does not deny she
made the claims.) For purposes of the litigation privilege, whether Osborne’s
claims in the HR letter are true or false or were made with malice is
irrelevant. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955-956 [the
privilege applies even if the statement was false and made with malice].)
On December 20, 2019, about four years after she was hired as Slap’s
executive assistant, Osborne sent the HR letter to Cassity with a cover email,
the subject line of which was “Formal Complaint,” and the body of which
stated, “Hi Nancy. Per your direction last week I have put my complaint in
writing. Please see attached.” The letter referred to a discussion between
Osborne and Cassity on December 10, 2019, about “some of my concerns
11 There is a split of authority as to who bears the burden of proving
the affirmative defense of privilege where it is raised as a defense to the
plaintiff’s ability to show a likelihood of prevailing on the merits at the
second step of the anti-SLAPP analysis. (Bentley Reserve L.P. v. Papaliolios
(2013) 218 Cal.App.4th 418, 434, fn. 7 [noting split].) We need not weigh in
on the issue because, even assuming the burden is on the defendant, the
undisputed facts plainly establish the HR letter is protected by the litigation
privilege.
12 Slap admits he asked Osborne to perform some personal tasks, and
contends that such tasks were “included in her job duties,” “part of her job
description” and “authorized” by HAG. He also says she “volunteered” or
“offered” to do some of the tasks.
29
about my working relationship with Mr. Slap,” in which Cassity told her “I
would need to put these in writing before any action could be taken or my
concerns could be addressed.” The letter stated, “Accordingly, I am sending
you this letter in a final effort to have my concerns acknowledged, addressed
and resolved.”
The letter stated that “[a]lthough we have discussed some of these
concerns on numerous occasions, and hoped that Mr. Slap’s behavior would
improve, I now find the work conditions unbearable and intolerable.” It
asserted that she “remain[ed] very concerned about retaliation by Mr. Slap
and the Company.” It requested “a prompt, fair and thorough investigation
of my complaint, and protection from retaliation.”
The letter described Slap’s conduct as “inappropriate, harassing and
retaliatory,” “hostile,” “humiliating” and “abus[ive].” In more than four pages
of single-spaced text, it went on to provide many examples of allegedly
inappropriate, harassing, retaliatory and abusive conduct. For example, it
accused Slap of asking Osborne to work while she was on maternity leave
and offering to pay her on the side after he had been advised by HAG’s
controller not to have her work during her leave. When she was eight
months pregnant, he asked her to continue to purchase and carry multi-
gallon water jugs against her doctor’s advice. It described increasing
demands Slap made “that were personal in nature” that made her feel
“degraded, humiliated publicly, and often abused,” such as being asked to cut
his food, to come to his office to pour him water from a pitcher, to remove his
“drenched gym clothes” from his bag and take them home to wash, to burn a
wart off his foot and to drive him to the emergency room and remain with
him while he was in a hospital gown answering personal questions while
“rolling around moaning in pain.”
30
The letter reported that Osborne had complained to Slap about another
employee who “had been sexually harassing [her] since [her] return from
maternity leave.” The letter claimed Slap “did nothing” in response to her
complaints that the employee was following her and physically touching her,
and that instead of reporting the employee Slap had promoted him. Later,
after the employee sued the company, Slap told her if she were deposed, she
should be sure to mention the sexual harassment but not to say she had told
Slap about it.
The letter also accused Slap of asking Osborne to perform personal
tasks for him but not allowing her to “log hours” for that work, said he had
“become aggressive” and “hostil[e] towards her when she asked to be paid and
accused him of repeatedly failing to pay her for hours she worked. It asserted
that Slap had promised her a raise but told her it would be “between us” and
would not be in writing, and he failed to honor the promise until directed by
HR to do so. The letter stated Osborne had complained to Cassity “months
ago” about not being paid “and again last week when this became an issue
again.” She said that Slap had “specifically instructed [her] to not contact
you or HR” and instructed her “to not ask for HR help.”
The letter closed by requesting that the company “immediately” stop
Slap’s “harassment and abuse of [her],” “formalize” her salary and monthly
increase “so that I do not have to beg and argue for it every month” and pay
her “for all of [her] work.” Slap denied many of Osborne’s assertions in the
letter but admitted she sent it.
By the time Osborne sent the HR letter, she had already had “multiple
communications” with Cassity about the subject matter of her “December 20
complaint” (the HR letter), including not getting paid for work she was doing
for Slap. One conversation in December 2019 took place when Osborne
31
reached out to Cassity right after she and Slap had “an altercation” in which
he had “thrown my pay increases at me in a folder.” This caused her to feel
“insulted” and “offended” and she was “very upset.” Osborne asked Cassity to
meet with her and Slap together, which was “the only way” there “could be
any resolution.” In that or another conversation, Cassity told Osborne she
would not “keep partipating in this with the two of you” and was “not doing
anything about anything,” unless Osborne or Slap “put[] it in writing.” She
said, “[i]f you want help, put it in writing.” Osborne “wanted Nancy Cassity
to do the job” she had been hired to do “instead of falling in line behind [Slap]
and contributing to the corruption that was occurring from the ground up.”
Osborne submitted a declaration attesting she had “been contemplating
litigation in the days leading up to December 20, 2019, because of the
mistreatment I was experiencing working for Defendants.” Other evidence
corroborates that assertion. For example, a copy of an email sent to Osborne
on the day she sent the HR letter. The email was from an assistant for
attorney Tyler Paetkau of the Procopio law firm, addressed to Osborne, with
an engagement letter and a request for a retainer of $1,000. Osborne
attested that she “formally retained” Paetkau on December 27, 2019.
Further, Osborne submitted a declaration executed by Paetkau, an attorney
licensed in California, stating he was “[Osborne’s] attorney of record”
“commencing in mid-December 2019 through approximately early
February 2020.”
Paetkau also attached emails he exchanged with HAG’s counsel, Jason
Geller, in January 2020. In the first email, Paetkau inquired about the
status of the company’s investigation of “Eva’s complaint,” the “results of the
Company’s investigation and the Company’s remedial actions taken, if any”
and said Osborne was “ready to return to work.” The bulk of the email (three
32
and one-half of four pages) consisted of a “Demand for Employment-Related
Documents Under the California Labor Code” and a “Notice of Preservation
of Evidence,” commonly known as a “litigation hold.” When Geller responded
with a short email stating Osborne had “submitted a detailed written
complaint about Mr. Slap’s alleged conduct to which my client has already
responded,” Paektau sent another email expressing surprise at Geller’s
statement that HAG had “completed its investigation,” and asked, “What
remedial action did your client take?” and, “Did your client implement
procedures and policies to ensure that Eva can return to work free from
further harassment . . . ?” and “What has the company done to stop [Slap’s]
harassment and abuse of Eva?”
Besides the fact that she hired an attorney in December 2019, who then
sent a litigation hold letter to defendants’ counsel in January 2020, on
March 2, 2020, and March 10, 2020, Osborne filed charges of harassment and
retaliation against HAG and Slap with the DFEH, and on March 16, 2020,
she filed this lawsuit for civil damages against them based on allegations
largely mirror those contained in her December 20, 2019 “complaint” to HAG.
The fact that she filed the DFEH complaint and this lawsuit less than three
months after sending the HR letter further supports her assertion that she
was contemplating litigation when she sent the letter.
Slap contends this considerable and undisputed evidence falls short.
He relies on our decision in Edwards v. Centex Real Estate Corp. (1997)
53 Cal.App.4th 15 (Centex) which sets forth four “considerations for
distinguishing the point at which the litigation privilege may attach to
statements in advance of litigation.” (Id. at pp. 34-35.) In particular, he
claims Osborne’s December 2019 letter did not expressly “suggest or propose
a ‘lawsuit’ ” (italics omitted) and that her deposition testimony and the letter
33
show it “was a response to a request from HAG’s HR department as opposed
to litigation.” Osborne argues that the Centex factors were met in this case.
Osborne has the better argument.
Slap’s second argument is easily disposed of. There is evidence that
Cassity told Osborne the company would not address her concerns if she did
not put them in writing, which apparently prompted her to do so. But that in
no way indicates that when she wrote the letter she did not have the
intention of pursuing litigation if, as had been the case already for some time,
HAG still did not remedy the situation.
Slap’s first argument, that the letter’s failure specifically to threaten or
refer to litigation by name means it does not meet the first Centex criterion,
merits discussion. The letter does not use the word “lawsuit” or expressly
threaten litigation. But as we stated in Centex, the purpose of these
considerations is to “detect at what point on the continuum between the onset
of a dispute and the filing of a lawsuit [where] the threat of litigation has
advanced from mere possibility or subjective anticipation to contemplated
reality.” (Centex, supra, 53 Cal.App.4th at pp. 34-35.) For this purpose, “[i]t
is not necessary that a party make an actual ‘threat’ of litigation”; it suffices
if there is “some actual verbalization of the danger that a given controversy
may turn into a lawsuit.” (Id. at pp. 35, 34.)
As Osborne points out, the HR letter, which again Osborne refers to as
a “formal complaint,” satisfies Centex. It alleges many examples of Slap’s
actionable misconduct, which it characterizes as “harassment,” “retaliation”
and “abuse.” She describes Slap asking her to do personal tasks that made
her feel “degraded, humiliated publicly, and often abused” and becoming
“hostile” and “aggressive” with her when she asked to be paid for her work.
It accuses him of ignoring a complaint she made that another employee was
34
sexually harassing her and of dissuading her from reporting that and or
raising other issues with HR. It claims Slap repeatedly failed to pay her for
time she worked and prevented her from logging time she spent working at
his request. It refers to “numerous” prior conversations she had with Cassity
in which she complained and to the company’s failure to improve Slap’s
behavior or her working conditions. It conveys a sense of desperation and
imminence, referring to conditions at work having become “intolerable” and
“unbearable” and states she is sending the letter “in a final effort” to have
Osborne’s concerns “acknowledged, addressed and resolved.” (Italics added.)
It demands that Slap’s “harassment and abuse of me . . . stop immediately.”
The “formal complaint” to HR implies a threat of litigation.
This case is unlike Centex, which addressed whether the litigation
privilege applied to a builder’s and insurer’s communications in response to
homeowners’ initial reports of damage to their foundations. (Centex, supra,53 Cal.App.4th at p. 22.) Those initial insurance claims led to investigation
and repairs by defendants, and many years passed before the repairs
eventually failed, the homeowners discovered the design defects that led to
the cracking and filed litigation against the builder and insurer for fraud.
(Id. at pp. 22-25 [cracking reported to defendants in 1986-1987, inspections
carried out in 1987-1988, repairs completed in 1988-1989, plaintiffs
discovered new cracking and underlying design problems and filed suit in
1993 and 1994].) The court reversed a trial court’s decision to apply the
litigation privilege to the initial claims of damage and the defendants’
responses because the plaintiffs could not show they intended to sue
defendants when those communications occurred. (Id. at pp. 38-40, 42.)
This case is a far cry from Centex. Here, by the time she sent the HR
letter, Osborne was plainly upset and frustrated by HAG’s failure to address
35
her ongoing complaints of misconduct and nonpayment regarding Slap. She
did not attempt to “negotiate” a resolution; rather, she submitted a “formal
complaint,” referenced the “numerous” prior communications she had with
Cassity about these matters and the failure to effect any change and said the
letter was her “final effort” to resolve those matters. She demanded
“immediate” action. She didn’t say “or else I sue,” but it was strongly
implied. Moreover, Osborne quickly retained counsel, who sent a litigation
hold, and she filed litigation three months, not six or seven years, after
sending the letter. By the time she sent the letter, “litigation [was] no longer
a mere possibility, but ha[d] instead ripened into a proposed proceeding that
[was] actually contemplated in good faith and under serious consideration as
a means of obtaining access to the courts for the purpose of resolving the
dispute.” (Centex, supra, at 53 Cal.App.4th p. 39.)
Slap’s reliance on Ruiz v. Harbor View Community Assn. (2005)
134 Cal.App.4th 1456 is likewise misplaced. There, a homeowner, who was
also an attorney, sued his homeowners’ association after it denied approval of
his architectural plans. (Id. at p. 1465; see also id. at p. 1461.) He asserted a
claim for libel based on a letter the association’s attorney sent him accusing
him of ethical misconduct. The appellate court held the allegedly libelous
letter was not protected by litigation privilege. It reasoned that when the
letter was written (a year before the suit was filed (see id. at pp. 1463-1465)),
“litigation had not been seriously considered, the dispute had not ripened into
a proposed proceeding, and the parties were not negotiating under the actual
threat of litigation.” (Id. at p. 1473.) Although in earlier correspondence the
homeowner had “obliquely” referred to litigation, the allegedly libelous letter
from the association’s attorney did not, and after he sent it the two had
36
“continued to trade sharply worded correspondence for the next several
months” before the plaintiff filed suit. (Id. at pp. 1473, 1464.)
The facts in Ruiz, involving two attorneys exchanging sharply-worded
correspondence over a year before any litigation was filed, bear no
resemblance to those here. Osborne, who was not an attorney, had sought
legal counsel before she sent the letter to HR. The letter was the culmination
of a series of prior oral complaints she had made about illegal harassment,
retaliation and other serious workplace misconduct. It stated her work
environment had become “intolerable” and that the letter was her “final
effort” to resolve her complaints. Within three months of sending the letter,
she filed her civil suit, and prior to that, a complaint with the DFEH.13
Finally, Slap argues there is no evidence that Osborne contemplated
that litigation was “imminent,” a term used in Centex to distinguish between
“a ‘bare possibility’ ” of litigation from litigation that meets the “Restatement
requirement that litigation be ‘seriously considered.’ ” (Centex, supra,
53 Cal.App.4th at p. 35.) As we have discussed, Slap contends that Osborne’s
declaration cannot be considered, a contention we have rejected. He also
asserts her retention of counsel a week after she sent the HR letter does not
show an intention to litigate “imminently” because she does not specifically
state the purpose for which she retained him, and that the litigation hold
letter her attorney sent to HAG’s counsel was sent to try to resolve the
13 In the third case Slap relies on, Cruey v. Gannett Co., supra,
64 Cal.App.4th 356, the court discussed the privileges for statements in “an
official proceeding authorized by law” under Civil Code section 47,
subdivision (b)(3) (Cruey, at p. 368) and the conditional privilege for
communications among interested parties under section 47, subdivision (c).
(Cruey, at p. 369.) The employee did not raise the litigation privilege (see id.
at p. 367), and the court did not discuss it except in passing. (Id. at pp. 368-
369.)
37
matter informally rather than as a threat of litigation, as evidenced by its
mention of her readiness to return to work and the fact that it was not sent
until a month after she sent the HR letter. Last, he contends “[t]he fact that
Ms. Osborne later sued is not evidence she was contemplating litigation at
the time she sent the December 20, 2019 letter.”
None of these arguments undermines Osborne’s showing that when she
sent the letter, she was contemplating litigation. She had no need to state
why she hired counsel because counsel’s correspondence makes it plain. His
first letter to HAG’s general counsel was in large part a litigation hold,
reflecting, rather than detracting from, her showing that she anticipated
filing litigation imminently. Nor does the reference to her readiness to return
to work make the letter an attempt to resolve the matter informally and not
to communicate that litigation was imminent, as Slap suggests. On the
contrary, the statement was immediately followed with an inquiry as to the
status of HAG’s investigation (as to which Paetkau expressed skepticism
because Osborne had not heard from any investigator), a reiteration of
Osborne’s request for “a prompt, fair and thorough investigation of [her]
complaint,” a reference to “Slap’s inappropriate, harassing and retaliatory
conduct” and the statement that Osborne “would like to know, as soon as
possible, the results of the Company’s investigation and the Company’s
remedial actions taken, if any.” Following that first paragraph, what follows
is three and one-half pages demanding documents and preservation of
evidence, in other words, a litigation hold. Far from an opening effort to
negotiate, counsel’s communication was consistent with Osborne’s HR letter
reflecting that efforts to get HAG to address the problems had been ongoing
for a substantial period of time with no resolution, the situation had become
“intolerable,” and the letter had been her “final” effort to resolve them. That
38
a demand letter or other communication, after lengthy efforts to resolve a
dispute have failed, mentions the possibility of informal resolution does not
negate evidence that imminent litigation is genuinely anticipated.
Nor do we agree with Slap that Osborne’s filing suit within three
months of having sent the letter is not evidence that she anticipated
“imminent” litigation at the time she sent the HR letter. Certainly, filing
litigation within three months is some evidence of that, albeit by no means
the only such evidence in this case. (Cf. Neville v. Chudacoff (2008)
160 Cal.App.4th 1255, 1269 [anticipated litigation was sufficiently imminent
when it was filed within four months after communication]; Aronson v.
Kinsella (1997) 58 Cal.App.4th 254, 268 [Centex “does not hold or suggest
that a complaint must be drafted before the privilege will apply. In short, the
question in [Centex] was not ‘imminentness,’ but remoteness”].)
Because the undisputed evidence demonstrates that the HR letter was
protected by the litigation privilege as a matter of law, Slap cannot prevail on
the merits of his tort claims against Osborne based on statements made in
that letter. Because this prevents Slap from meeting the second step of the
anti-SLAPP analysis, we need not address the parties’ additional arguments
about the conditional privilege, malice and whether Slap’s allegations are
sufficient to establish the elements of his claims.
DISPOSITION
The order is affirmed. Osborne is entitled to costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)
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STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
Osborne v. Slap (A167118)
40
Trial Court:Alameda County Superior Court
Trial Judge: Hon. Eumi Lee
Counsel:
de la Peña & Holiday, Gregory R. de la Peña, Thomas J. O’Brien and Kevin
N. LaBarbera, for Defendant and Appellant.
Kochan & Stephenson, Deborah Kochan and Mathew Stephenson, for
Plaintiff and Respondent.
41