Tripi v. Make-Up Artists & Hairstylists Guild-IASTSE Local 706

Filed 6/14/16 Tripi v. Make-Up Artists & Hairstylists Guild-IASTSE Local 706
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ALICIA M. TRIPI, B259541
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. EC062256)
v.
MAKE-UP ARTISTS & HAIR STYLISTS
GUILD-IATSE LOCAL 706 et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County,
John P. Doyle, Judge. Reversed in part, affirmed in part, and remanded.
Reich, Adell & Cvitan, Laurence S. Zakson and Aaron G. Lawrence for
Defendants and Appellants.
Law Office of Michael J. Ponce and Michael J. Ponce for Plaintiff and
Respondent.
_________________________
Plaintiff and respondent Alicia M. Tripi sued appellant and respondent Make-Up
Artists and Hair Stylists Guild of the International Alliance of Theatrical Stage
Employees (IATSE), Local 706 (hereinafter the Union)1 and seven current or former
Union officers or directors for discrimination and retaliation in violation of the California
Fair Employment and Housing Act (FEHA). The Union and the individual defendants
appeal from the trial court’s denial of their special motion to strike the complaint
pursuant to Code of Civil Procedure section 425.162 (anti-SLAPP motion). We reverse
in part and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. Tripi and the Union3
Tripi, a 61-year-old Hispanic hairstylist, is a member of, and represented for
purposes of collective bargaining by, defendant Union. The Union represents a collective
bargaining unit of approximately 1,800 makeup artists and hairstylists in the
entertainment industry. Tommy Cole was the Union’s Business Representative, and
Susan Cabral-Ebert was the Union’s President and Assistant Business Representative.
a. First EEOC complaint
On July 13, 2010, Tripi filed a charge with the Equal Employment Opportunity
Commission (EEOC) alleging that the Union had discriminated against her based on her
gender, national origin, and age, and had retaliated against her.
1 Respondent Union’s full name is Make-Up Artists and Hair Stylists Guild of the
International Alliance of Theatrical Stage Employees, Moving Picture Technicians,
Artists and Allied Crafts of the United States, Its Territories and Canada, AFL-CIO,
CLC.
2 All further undesignated statutory references are to the Code of Civil Procedure.
3 The facts appear to be largely undisputed and are taken from the parties’ briefs,
the allegations of Tripi’s complaint, and the declarations and materials offered in support
of or opposition to the anti-SLAPP motions.
2
b. Tripi’s charges of breach of fiduciary duty by Local Union leaders and the
November 21, 2010 membership meeting
In September 2010, Tripi filed a “petition” with the Union’s Executive Board
alleging that Cole and Cabral-Ebert had committed multiple breaches of their fiduciary
duties in violation of the Labor-Management Reporting and Disclosure Act of 1959
(LMRDA), 29 U.S.C. § 501(b).4 She demanded an investigation and an accounting and
sought to recover damages. In response, the Executive Board conducted two days of
hearings and an extensive document review investigating Tripi’s complaints. A number
of witnesses were called before the Executive Board, including Tripi. However, Tripi
declined to answer any questions unless posed in writing so she could review them with
an attorney. Michael Blake, on behalf of the Executive Board, ordered Tripi to answer
but she continued to refuse. Blake subsequently prepared a report containing the
Executive Board’s findings that Tripi’s charges against Cole and Cabral-Ebert were
lacking in merit. The Executive Board presented the report to the local Union’s general
membership at a November 21, 2010 meeting attended by approximately 90 to 100
members. Tripi, as well as others, spoke. The general membership voted to approve the
no merit findings by a vote of 73 to 2.
c. Charges against Tripi
Lydia Milars and Michael Germain, two of the Executive Board members who
investigated Tripi’s allegations against Cole and Cabral-Ebert, filed internal union
charges against Tripi based on her refusal to answer questions during the investigation.
That “Affidavit of Charges” averred that Tripi’s conduct was a violation of the local
4 Among other things, Tripi averred that Cabral-Ebert was involved with the
Hollywood Chamber of Commerce, and Cole was involved with the Academy of
Television Arts and Sciences, in a manner that compromised the local Union’s interests,
including “spending 706’s hard earned Union Dues on Pro-Business/Anti-Union
advocacy activities”; Cabral-Ebert inappropriately held multiple positions within the
Union; Cabral-Ebert spent Union money to fund an expensive trip to Washington D.C.
that was not in the Union’s best interests; and both had used frequent flyer miles accrued
on Union business for their personal advantage.
3
Union’s Constitution. On April 3, 2011, the local Union held a hearing on the charges
against Tripi and convicted her of them.
d. Second EEOC complaint
On March 17, 2011, Tripi filed a second charge with the EEOC alleging that the
Union had retaliated against her for filing the first EEOC complaint. The EEOC
dismissed both the first and second EEOC charges and issued Tripi right-to-sue letters.
e. May 22, 2011 general membership meeting
On May 22, 2011, the Union held another meeting. The general membership
voted to uphold the trial board’s conviction of Tripi on the internal union charges brought
for her refusal to answer questions during the investigation.
f. Debate about the proposed collective bargaining agreement
In 2012, IATSE reached a tentative agreement for an industry-wide collective
bargaining agreement (CBA) covering the Los Angeles area and Los Angeles-based
productions. The Union set up a Facebook forum, the “2012 IATSE Contract Forum,” to
allow IATSE members to discuss the proposed CBA. The forum was open to thousands
of IATSE members, and the merits of the proposed CBA were debated on the Facebook
site. Tripi posted a number of comments urging members to reject the proposed CBA. It
was eventually ratified by the Union membership.
2. Tripi’s complaint in Los Angeles Superior Court
In 2014, Tripi filed a seven-count first amended complaint (hereinafter
“complaint”) against the Union and individual defendants Lydia Milars, Michael
Germain, John Rizzo, John E. Jackson, Leonard Engelman, Michael Blake, and Hazel
Catmull, who were all current or former Union officers. 5 The complaint alleged five
causes of action against the Union: retaliation for filing the first EEOC complaint
(Gov. Code, § 12940, subd. (h)); age, national origin, and sex discrimination in violation
5 According to the complaint, Milars, Germain, and Rizzo were members of the
Union’s Executive Board. Jackson was the Union’s Secretary-Treasurer and Blake was
the Vice President. Catmull was the “Co-Chair” of the Union’s Board of Trustees.
Engelman was a former Business Representative for the Union.
4
of the FEHA (Gov. Code, § 12940, subd. (b)); and failure to prevent discrimination and
harassment (Gov. Code, § 12940, subd. (k)).6 Tripi alleged one cause of action against
the individual defendants for aiding, abetting, and inciting harassment of her in violation
of the FEHA (Gov. Code, § 12940, subd. (i)). As pertinent here, the complaint alleged
the following.7
a. Age discrimination
The Union maintains an “availability list” whereby Union members are referred
for possible job assignments. Pursuant to Union policy, jobs are referred to trainees first
and the most experienced Union members last. This policy has a disproportionate impact
on older Union members, who are denied job assignments. This consequence was
intentional, and designed to recruit newer Union members who pay new membership
dues.
b. National origin and sex discrimination
Between December 2008 and March 2012, the Union approved “double dipping
work” for a White Union member whose dues were delinquent, and allowed her to serve
as a steward in violation of Union policy. Executive Board Member Randy Sayer waived
the member’s delinquent dues. At the same time, Tripi, a Hispanic whose dues were
current, was “black listed.” Sayer’s “past incidents with Hispanic women” indicated
discriminatory conduct against Hispanic women. In 2006, Sayer was allegedly fired from
his job as a Department Head Hair Stylist on a television show and replaced by a
Hispanic woman. Upon learning he was fired, Sayer flew into rage and was escorted off
the studio lot. Despite the Union’s knowledge of this incident, it hired Sayer as an
Assistant Business Representative. Further, “[a]nother female Hispanic Union member”
6 A seventh cause of action for failure to preserve records was not the subject of the
anti-SLAPP motion and is not relevant here.
7 Although the complaint’s factual allegations are assertedly common to all causes
of action, for clarity’s sake we group them by reference to the causes of action to which
they logically pertain.
5
had alleged the Union had discriminated against her because of her gender and national
origin.
c. Retaliation
(i) The Union’s alleged efforts to “blacklist” Tripi and prevent her from
obtaining work
In November 2011 Tripi was working as a hairstylist on the televisions series “The
Mentalist.” Union member Sharisse Fine was the production’s head hair stylist. Fine
asked Tripi if she was suing the Union and mentioned Cabral-Ebert and Cole. Fine
thereafter failed to hire Tripi. Another hair stylist informed Tripi that Fine had not hired
Tripi because Fine did “not want any problems with the Union or Cabral-Ebert,” and
because Tripi was suing the Union.
On February 29, 2012, Geri Baker hired Tripi to replace another hair stylist for a
single day, March 1, 2012, on a television pilot. Baker left to pay her Union dues at the
Union’s offices. There, Cabral-Ebert told Baker that Tripi was “ ‘crazy’ ” or mentally ill;
had cost the Union and Local 706 members thousands of dollars in legal fees; was suing
the Union; and had filed complaints with the EEOC and the Labor Board. Cabral-Ebert
told her not to hire Tripi if she did not want trouble. Baker warned Tripi to be careful of
Cabral-Ebert and the Union officers because “they could and will hurt you very bad.”
Baker had not hired Tripi since.
When Tripi’s work as a hairstylist on a television production ended, she entered
her name on the Union’s Availability List on February 6, 2013. Since that date, she had
not received any job referrals from the Union Dispatch office. Cabral-Ebert allegedly
controls the Union’s Dispatch Job Referral Office. Tripi believed she had been “black
listed” by the Union due to her national origin and age and in retaliation for filing her
EEOC complaints. She also believed her name had been added to a special list of
persons whom the Union would not send on job assignments. The Union also gave
potential employers an incorrect telephone number for her. The Union dispatcher
purposely failed to refer jobs from the Availability List in alphabetical order to ensure
Tripi was not called for work. Cole and Cabral-Ebert had “made defamatory statements”
6
about her to entertainment agents, with the result that she was unable to get an interview
with an agent.
Tripi was “informed and believe[d]” that Cabral-Ebert made the following
statements about her, at unspecified times, to “other former Executive Board Members”:
“ ‘no one is going to hire [Tripi]’ ”; “ ‘the Union had the word out on her’ ”; Tripi would
“ ‘not get any work’ ”; “ ‘[n]o one wants to get on the wrong side’ ” of Cabral-Ebert and
Cole; and “ ‘[w]e got her on the list.’ ” Cole had made similar remarks about her.
(ii) Statements allegedly made at the November 21, 2010 membership meeting
At the November 21 membership meeting Catmull stated that Tripi was “ ‘an
enemy of Local 706’ ”; had filed complaints against Local 706 with the EEOC and the
National Labor Relations Board (NLRB), costing the Union $100,000 in unnecessary
legal fees; and all members of the Local were therefore “involved” in Tripi’s lawsuit.
Cabral-Ebert publicly agreed with these statements. Blake stated that “ ‘because of
Alicia Tripi, Local 706 had to buy a new paper shredder machine and a new office
copier’ and ‘there are mounds and mounds of unnecessary paper waste in the office.’ ”
Engelman called Tripi “a nobody,” a “ ‘dissident,’ ” and “an enemy of the Union”;
questioned how she could live with herself; urged “ ‘[d]o not go with what this
[d]issident says for she is not what the Union represents’ ”; stated that the Union needed
“ ‘to be protected from’ ” Tripi; and reiterated that the local had spent $100,000 to
“protect itself from Alicia Tripi.” Rizzo stated that Local 706’s Constitution did not
allow members to have an attorney, presumably during the investigation into Tripi’s
charges against Cole and Cabral-Ebert; Tripi knew she was not allowed to have an
attorney; and Tripi had had a chance to speak and defend herself, but did not. These
comments allegedly were intended to, and or did, harm her reputation, harass her, and
prevent her from being hired by fellow Union members who had hiring authority.
(iii) Statements made on the Facebook page
In postings to the Facebook page in May 2012, Blake accused Tripi of posting
“ ‘misleading’ and ‘completely false’ information”; stated she was “ ‘dream[ing] up’
allegations of possible nefarious actions by Union officials”; had posted “ ‘rant[s]’ ”
7
comprised of “ ‘delusions’ she ‘conjure[d] up’ ”; and had filed “ ‘numerous false & mis-
leading claims (some are outright lies) with the NLRB & EEOC against our local without
providing one single shred of evidence to support her delusional exclamations. ALL of
them have been refuted as having no basis, yet it has cost our local $100,000 in legal fees
to respond.’ ” Blake’s comments were allegedly designed to imply Tripi was “crazy and
unbalanced and not to be believed or taken seriously.”
(iv) The Affidavit of Charges against Tripi
The “Affidavit of Charges” filed against Tripi by Milars and Germain, and
allegedly processed by Jackson, was meritless and intended to embarrass and harass
Tripi.
3. The anti-SLAPP motions, opposition, and ruling
The individual defendants filed an anti-SLAPP motion seeking to strike the sixth
cause of action for “aiding, abetting, and inciting harassment.” The Union filed a
separate anti-SLAPP motion seeking to strike the first through fifth causes of action for
retaliation, discrimination on the basis of age, national origin and sex, and failure to
prevent discrimination and harassment; it also joined the individual defendants’ motion.
The individual defendants argued that Tripi’s sixth cause of action was based
solely on their acts in furtherance of their protected right of free speech in connection
with public issues, i.e., the statements in union meetings and on the Facebook forum and
the filing of the Affidavit of Charges. The Union similarly argued that the first through
fifth causes of action arose out of protected activity. Appellants averred that Tripi could
not demonstrate a probability of success on any of her causes of action.
In support of the motions, defendants produced the declarations of Blake, Jackson,
Sayer, and Cole, which described much of the background information discussed in
section 1 of our discussion of the facts, ante. In addition to those matters, as relevant
here, Jackson declared that as the Local Union’s Secretary-Treasurer, he was responsible
for processing internal union charges and election protests. Tripi unsuccessfully ran for
an internal union office in 2006 and 2009. She filed four protests with the Union
challenging the election; they were considered and dismissed. Tripi ran again for office in
8
2012, and filed unsuccessful election protests in connection with that election. She had
also filed charges with the NLRB in 2006, 2010, and 2011. The proposed CBA was the
subject of considerable news coverage because of its importance to the entertainment
industry. Attached to Jackson’s declaration were copies of articles published in the Los
Angeles Times, Variety, and Deadline Hollywood, concerning the IATSE’s ratification
of the CBA.
Blake described the Facebook forum debate between him, Tripi, and other
persons. Copies of the relevant Facebook posts were attached to Blake’s declaration.
Sayer averred that Rizzo stated at the May 22, 2011 meeting that the Local’s
constitution did not allow members to have an attorney at a trial board hearing; Tripi
knew this rule; and Tripi declined to speak in her own defense at the trial board hearing
in regard to the charges brought against her. A copy of the minutes of the May 22, 2011
meeting was attached to Sayer’s declaration.
After considering the parties’ briefing, the trial court denied appellants’ anti-
SLAPP motions. It concluded that appellants failed to establish the subject claims arose
out of protected activity, i.e., there was an insufficient showing the gravamen of the
claims involved statements made in connection with an issue of public interest. Relying
in part on Rivero v. American Federation of State, County and Municipal Employees,
AFL-CIO (2003) 105 Cal. App. 4th 913 (Rivero), the trial court reasoned: “the gravamen
of the First Amended Complaint here -- whatever the evidence may eventually establish--
is that defendants engaged in conduct directed at one employee, to harass her, retaliate
against her and prevent her from being offered work in the industry. The basis of these
causes of action is not that the Union took particular positions on public issues, but rather
that various statements were made for allegedly ulterior motives, directed at harassing
and retaliating against plaintiff, one member, raising issues unique to her circumstances,
not issues which applied to the Union or to union members generally. This action is
accordingly more in the nature of Rivero, and its overall rationale. [¶] The reply
attempts to broaden the issues to include the ratification of a proposed 2012 industry-
wide collective bargaining agreement. This may have been a point of contention between
9
the parties, but it does not constitute a basis for, let alone the gravamen of, the pleading
before this court.” The trial court did not reach the question of whether Tripi had
established a probability of success on her causes of action. It declined to rule on
appellants’ objections to Tripi’s evidence offered in opposition to the anti-SLAPP
motions, finding the objections irrelevant in light of its ruling.
Defendants timely appeal the trial court’s order. (§§ 904.1, subd. (a)(13), 425.16,
subd. (i).)
DISCUSSION
1. The anti-SLAPP statute
“Code of Civil Procedure section 425.16 provides a procedure for the early
dismissal of what are commonly known as SLAPP suits (strategic lawsuits against public
participation)—litigation of a harassing nature, brought to challenge the exercise of
protected free speech rights.” (Fahlen v. Sutter Central Valley Hospitals (2014)
58 Cal. 4th 655, 665, fn. 3; Club Members for an Honest Election v. Sierra Club (2008)
45 Cal. 4th 309, 312, 315.) Section 425.16 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.” (§ 425.16, subd. (b)(1).)
Section 425.16, subdivision (e) sets forth four types of communications or conduct
that are considered acts in furtherance of a person’s right of speech or petition: “(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
10
of free speech in connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e); see People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal. App. 4th 809,
823-824.)
A determination whether a cause of action must be stricken under section 425.16,
subdivision (b)(1), involves a two-step process. First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is one
“arising from” protected activity. (City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76;
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.) “ ‘A defendant
meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of
the categories spelled out in section 425. 16, subdivision (e).’ ” (Navellier v. Sletten
(2002) 29 Cal. 4th 82, 88; Ruiz v. Harbor View Community Assn. (2005) 134 Cal. App. 4th
1456, 1466.) Second, if the court finds such a showing has been made, it then must
consider whether the plaintiff has demonstrated a probability of prevailing on the claim.
(City of Cotati, supra, at p. 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, supra, at p. 89.)
We review an order on an anti-SLAPP motion de novo. (Oasis West Realty, LLC
v. Goldman (2011) 51 Cal. 4th 811, 820; Rusheen v. Cohen (2006) 37 Cal. 4th 1048,
1055.) 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); Navellier v.
Sletten, supra, 29 Cal.4th at p. 89; People ex rel. Fire Ins. Exchange v. Anapol, supra,
211 Cal.App.4th at p. 822.) But we neither “ ‘weigh credibility [nor] compare the weight
of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.’ ” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal. 4th 260, 269, fn. 3.) Section 425.16 should be broadly construed. (Club
Members for an Honest Election v. Sierra Club, supra, 45 Cal.4th at p. 315; § 425.16,
subd. (a).)
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2. Application of section 425.16 here
Appellants contend the trial court erred by denying their anti-SLAPP motions.
They aver that each of Tripi’s causes of action “arises from” their protected activities,
that is, statements made in furtherance of their free speech and petition rights in three
fora: (1) at the November 21, 2010 membership meeting; (2) on the Union’s Facebook
page; and (3) in the internal union “Affidavit of Charges” filed against Tripi. Further,
appellants urge that Tripi has not met her burden to show a probability of success on her
causes of action.
Tripi, on the other hand, argues that her causes of action arise from appellants’
violation of California’s antidiscrimination laws, not protected activity, and in any event
she has established a probability of prevailing on her complaint. She urges that the “basis
of [her] causes of action is not that the Union or the Individual Appellants took particular
position[s] on public issues, but rather that the various statements were made and directed
at harassing and retaliating against” her alone, and did not concern issues of importance
to Union members generally.
a. Protected activity
Primarily at issue here is the fourth category of protected conduct or
communication listed in section 425.16, subdivision (e): conduct or speech in connection
with a public issue or an issue of public interest. (§ 425.16, subd. (e).) It is well settled
that “[a]lthough matters of public interest include legislative and governmental activities,
they may also include activities that involve private persons and entities, especially when
a large, powerful organization may impact the lives of many individuals.” (Church of
Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 650, disapproved on another
point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5;
Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal. App. 4th
107, 115 (Du Charme); Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th
468, 479.) Section 425.16 does not define “public interest,” but the term “has been
broadly construed to include private conduct that impacts a broad segment of society
and/or that affects a community in a manner similar to that of a governmental entity.”
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(Hailstone v. Martinez (2008) 169 Cal. App. 4th 728, 736, 737 (Hailstone); Ruiz v. Harbor
View Community Assn., supra, 134 Cal.App.4th at p. 1468.) Thus, a public issue exists
where statements pertain to a person or entity in the public eye, to “ ‘conduct that could
directly affect a large number of people beyond the direct participants,’ ” or to a topic of
widespread, public interest. (Hailstone, supra, at p. 737; Rivero, supra, 105 Cal.App.4th
at p. 924.)
To qualify as a public interest, the matter should be of concern to a substantial
number of people; there should be a “degree of closeness” between the challenged
statements and the asserted public interest; and the focus of the speaker’s conduct should
be the public interest, not a private controversy. (Hailstone, supra, 169 Cal.App.4th at
p. 736.) Where the issue is of interest to a limited but definable portion of the public,
such as a private group or organization, “the constitutionally protected activity must, at a
minimum, occur in the context of an ongoing controversy, dispute or discussion, such
that it warrants protection by a statute that embodies the public policy of encouraging
participation in matters of public significance.” (Du Charme, supra, 110 Cal.App.4th at
p. 119; Ruiz v. Harbor View Community Assn., supra, 134 Cal.App.4th at p. 1468.)
Under section 425.16, subdivision (e), private communications concerning issues of
public interest may be protected whether or not made in a public forum. (Hailstone,
supra, at p. 736.)
(i) The Facebook forum
Applying the foregoing principles, it is clear Blake’s statements made on the
Facebook forum were protected activity under section 425.16, subdivision (e). Blake
explained in his declaration that the Facebook page was created specifically so IATSE
members could debate the merits of the proposed CBA. The CBA was an industry-wide
agreement, of importance, and open to, thousands of IATSE members. Indeed, according
to Tripi’s complaint, the forum was open to “at minimum over 113,000 IATSE
members.” The terms of a proposed collective bargaining agreement – which determines
crucial issues such as wages and working conditions -- were doubtless of great interest to
this large group of union members. Appellants’ evidence demonstrates that the proposed
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CBA was of public interest beyond the Union membership, in that the Los Angeles
Times and Variety, among other publications, published articles regarding it.
The copies of the Facebook posts provided by appellants, portions of which we set
forth in the margin,8 demonstrate that Blake’s comments were made in the course of an
ongoing and vigorous debate about the merits of the proposed CBA and bore the requisite
“degree of closeness” to that topic. (See Hailstone, supra, 169 Cal.App.4th at p. 736.)
Blake’s statements that Tripi had provided false and misleading information, and his
characterization of her argument as a “rant,” directly pertained to the controversy about
the proposed CBA’s terms. In context, it is also clear that Blake’s reference to Tripi’s
prior unsubstantiated complaints was meant to demonstrate that her arguments about the
CBA were inaccurate.
8 Blake’s statements at issue were made in the following context. Tripi posted
several lengthy arguments vehemently opposing the proposed CBA. Among other
things, she averred that union members would be paid minimum wage ($8 per hour);
many Union members had no choice but to accept the $8 per hour rate or be kicked out of
the union; and the CBA inappropriately classified feature films as “New Media.” She
voiced frustration that the union negotiators, who were “guaranteed six figure salaries”
along with all the perks, were encouraging acceptance of the proposed contract. Blake
replied that Tripi had provided false and misleading information, and rebutted her
statements about the characterization of feature films, salaries for union representatives,
and members being “kicked out” of the Union. Tripi posted an anecdote about her
personal experience being offered minimum wage; provided an excerpt from a “Low
Budget Theatrical Agreement”; exhorted members not to be “bullied by those with the
lavish six figure salaries who do not have to live with the consequences” of the CBA; and
posted a cartoon of a man holding a money bag with the heading “Chamber PAC Boss
[Union stamp for sale].” In response, Blake stated that Tripi’s “rant” was “old and
redundant” and she should “[t]ry debating the FACTS and not what your delusions
conjure up.” Tripi replied: “Blake: Gobbledy-Gook.” Another poster stated, “Huh? I
enjoy Alicia Tripi. Keep on tweaking!” Blake replied, “Sadly, Alicia tends to glom onto
one subject with information that is based on nothing but what she believes, facts be
damned. She has filed numerous false & mis-leading claims (some are outright lies) with
the NLRB & EEOC against our local without providing one single shred of evidence to
support her delusional exclamations. ALL of them have been refuted as having no basis,
yet it has cost our local $100,000 in legal fees to respond.”
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Citing Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal. App. 4th
962, Tripi argues that because she was not a public figure, was not a Union officer, and
was not on the committee that negotiated the Union’s CBA, the debate about the CBA
was not a matter of public interest. But Price is distinguishable. There, a small group of
union members posted flyers in a plant manager’s neighborhood. The union was in the
process of negotiating a new CBA that would have covered workers at that plant, but the
manager had no involvement in that process. One of the flyers did not reference the labor
dispute at all; the flyers were distributed to persons who had no connection with, and no
interest in, the union negotiations, in an area away from the plant. The mere fact
statements in the flyer were prepared and distributed by the Union did “not turn the
Union’s personal attack on [the manager] into” a matter of public interest. (Id. at
pp. 973-974.) Thus, Price does not stand for the proposition that the debate about a
collective bargaining agreement is unprotected activity. In sharp contrast to Price, here
Tripi was directly involved in debating the merits of the CBA.
Appellants have met their burden to demonstrate the Facebook forum posts were
protected activity under section 425.16, subdivision (e).
(ii) The November 21, 2010 meeting
Likewise, statements made at the November 21, 2010 general membership
meeting were protected activity under section 425.16, subdivision (e) as conduct in
furtherance of the exercise of free speech in connection with an issue of public interest.
Hailstone v. Martinez, supra, 169 Cal. App. 4th 728 and Macias v. Hartwell (1997)
55 Cal. App. 4th 669, are instructive. In the former, Hailstone was employed as a business
agent by a Teamsters Local Union that represented over 10,000 workers. The Union
suspended him for “ ‘double-dipping’ ” on expense reimbursements, a breach of his
fiduciary duties. The local’s Secretary-Treasurer, Martinez, sent copies of a letter
containing the allegations to other union officials and the Department of Labor, and
spoke with others about the allegations. (Hailstone, supra, at pp. 732-734.) Hailstone’s
employment as the local’s business agent was terminated, but he remained in other union-
related positions. Hailstone sued for defamation, and the Union responded with an anti-
15
SLAPP motion. (Id. at p. 734.) The appellate court concluded the defendants had met
their burden to establish the allegedly defamatory statements were protected activity
under section 425.16, subdivision (e). (Hailstone, supra, at pp. 735-736.) When
Martinez first published the “double dipping” accusations, the investigation was ongoing
and Hailstone still held other union positions related to representation of the local.
“Hailstone’s alleged misappropriation of union funds was of interest, not only to the
union officials to whom the allegedly defamatory statements were made, but also to a
definable portion of the public, i.e., the more than 10,000 members of Local 948. The
statements were made in connection with an ongoing controversy that was significant to
the Local 948 members, i.e., an investigation by Local 948’s elected representatives into
the possibly illegal actions of a union official who was currently serving in a fiduciary
capacity as a trustee of the trust that provides health and welfare benefits to those
members.” (Id. at p. 738; cf. Du Charme, supra, 110 Cal.App.4th at p. 118 [statement
posted on local’s website that business manager had been removed for financial
mismanagement was not a matter of public interest, because the statement was merely
informational; the termination was a fait accompli and was unconnected to any
discussion, debate or controversy].)
In Macias, the court concluded that allegedly defamatory campaign statements
made during a union election affecting 10,000 members involved a public issue. (Macias
v. Hartwell, supra, 55 Cal.App.4th at p. 672.) Macias had been fired from her local
union position for misuse of union funds. She subsequently ran for president of the local.
Her opponent distributed a flyer stating Macias had been terminated for misconduct. (Id.
at p. 671.) Macias reasoned that under the federal LMRDA, every member of a labor
organization has the right to express his or her views concerning candidates in a labor
election. (Id. at p. 673; 29 U.S.C. § 411(a)(2).) “Where, as here, a candidate speaks out
on issues relevant to the office or the qualifications of an opponent, the speech activity is
protected by the First Amendment. [Citation.] ‘The right to speak on political matters is
the quintessential subject of our constitutional protections of the right of free speech.
“Public discussion about the qualifications of those who hold or wish to hold positions of
16
public trust presents the strongest possible case for applications of the safeguards
afforded by the First Amendment.” ’ ” (Macias, supra, at p. 673, italics added; see also
Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at p. 479 [statements
concerning plaintiff’s competency to manage homeowners association pertained to issues
of public interest within the 3,000-resident community, in that they involved “the very
manner in which” the group would be governed, an “inherently political question of vital
importance to . . . the community as a whole”].)
At the November 21, 2010 meeting, the general union membership was asked to
consider the Executive Board’s findings on allegations that two of the local’s high-
ranking leaders had breached their fiduciary duties. These accusations, made by Tripi,
necessarily placed before the general membership the questions of Cole and Cabral-
Ebert’s qualifications to continue to hold office and consideration of whether they had
engaged in serious improprieties. As in Macias and Hailstone, allegations of this ilk
present an issue of public interest to the organization as a whole, that is, to the
approximately 1,800 Union members represented by Local 706. Although the Executive
Board had completed its investigation, at the meeting it presented the substance of the
charges to the Local’s membership for approval. According to Jackson’s supplemental
declaration, at the meeting there was a “long discussion of Tripi’s charges, including
comments by many members, including Tripi herself,” and the general membership voted
on whether to approve the Board’s findings. The discussion related to the political
question of whether the Union’s elected leaders were governing properly, and warranted
“protection by a statute that embodies the public policy of encouraging participation in
matters of public significance.” (See Du Charme, supra, 110 Cal.App.4th at p. 119.)
Tripi argues that statements allegedly made by Engelman, Catmull, Blake, and
Rizzo at the November 21 meeting9 do not qualify as protected activity because they did
9 Tripi argues that the Union’s opening brief mischaracterizes the November 21,
2010 meeting and the Board’s investigation into her allegations against Cole and Cabral-
Ebert as “Internal Union Trials.” She contends there was no formal trial during the
investigation into her complaints, and the November 21 meeting was “a discussion on a
17
not directly pertain to the Board’s findings or her accusations against Cole and Cabral-
Ebert. But this characterization of the alleged statements is too constricted. In essence,
the comments attributed to the individual appellants (1) disclosed that Tripi had filed
complaints with the EEOC and NLRB; (2) disclosed that the Union had expended
considerable sums on legal fees and other expenses addressing her complaints, which
came from Union dues; (3) criticized Tripi for filing unsubstantiated charges that
depleted the Union’s resources and were harmful to the Union; (4) criticized Tripi for
failing to cooperate with the investigation into the charges she had initiated; and (5) urged
the membership to disagree with Tripi (“ ‘[d]o not go with what this [d]issident says for
she is not what the Union represents’ ”). Comments 4 and 5 pertained directly to the
investigation, criticizing Tripi for failing to cooperate and urging the membership to
reject her allegations. The remaining comments, read in context, were comments on
Tripi’s credibility, which was relevant to the accuracy of her accusations. Tripi, after all,
was responsible for the accusations against Cole and Cabral-Ebert, and discussion of her
credibility and veracity was therefore potentially related to the merits of the charges. To
the extent comments 1 – 3 were simply criticisms of Tripi’s conduct, statements that a
Union member has repeatedly filed meritless complaints that deplete union resources is
certainly a matter of public interest to the Union’s membership.
Tripi urges that this matter parallels Rivero, supra, 105 Cal. App. 4th 913, a case
the trial court cited in support of its ruling. Rivero, a janitorial supervisor, was suspended
after several of his subordinates accused him of theft, extortion and favoritism. Although
the allegations could not be substantiated, he was terminated. The Union to which the
subordinates belonged thereafter distributed documents containing allegedly false
information about Rivero and touting the success of the Union members in orchestrating
Rivero’s departure. Rivero sued the Union for libel and slander and the Union responded
motion brought to ‘accept the findings of the Executive Board,’ ” rather than a trial. Our
analysis does not hinge on these distinctions. We assume the November 21 meeting was
a meeting rather than a formal trial proceeding, and the investigation into Tripi’s
accusations was just that – an investigation during which Tripi was questioned.
18
with an anti-SLAPP motion. (Id. at pp. 916-917.) Rivero affirmed the trial court’s denial
of the motion on the ground the Union had failed to show Rivero’s allegations arose from
speech in connection with a public issue. (Id. at pp. 918, 924.) The court reasoned: “the
Union’s statements concerned the supervision of a staff of eight custodians by Rivero, an
individual who had previously received no public attention or media coverage. . . . [T]he
only individuals directly involved in and affected by the situation were Rivero and the
eight custodians. Rivero’s supervision of those eight individuals is hardly a matter of
public interest.” (Id. at p. 924.) The dispute between Rivero and his subordinates was an
isolated incident and not part of a larger union dispute, and did not qualify as protected
activity. (Id. at p. 927.)
Tripi argues that as in Rivero, in the instant matter there is no major labor dispute;
only the individuals directly involved in the internal union dispute are affected, and none
are persons in the public eye; and the statements at issue involved only the ongoing
functions of a labor union rather than an issue of public interest. We disagree. As we
have explained, the issues here – resolution of accusations that Union leaders had
breached their fiduciary duties to the Union, an issue that encompassed their
qualifications and suitability to hold office – impacted the entire local membership, not
just a few members.
(iii) The Affidavit of Charges
The Affidavit of Charges filed by Milars and Germaine and processed by Jackson,
and Rizzo’s comments related to Tripi’s alleged refusal to answer questions,10 likewise
constituted protected speech and conduct under section 425.16, subdivision (e). Under
some circumstances, a charge that a Union member failed to abide by the local’s
10 According to the complaint, Rizzo’s comments were made at the November 21,
2010 meeting. The Union has presented evidence that Rizzo made the comments not at
the November meeting, but at the May 22, 2011 meeting in which the membership voted
on the charges against Tripi. Our analysis of Rizzo’s alleged comments is the same
regardless of whether the statements were made at either the November or the May
meeting.
19
constitution or by-laws might present an issue of interest only to the few individuals
involved. (See Rivero, supra, 105 Cal.App.4th at p. 924.) Here, however, the charges
against Tripi arose directly from the Union’s investigation of Tripi’s accusations against
the Union leadership and was inextricably intertwined with it. As we have explained,
those accusations – involving alleged breach of fiduciary duty by Cole and Cabral-Ebert,
and therefore their qualifications to continue to hold office – were an issue of public
interest to the local’s large group of members. Her conduct in regard to the investigation
of her accusations against the Union leadership was of interest to the Union membership,
which had a stake in the Union’s governance, as well as in the question of whether
Tripi’s accusations were brought in good faith and properly investigated. The question of
Tripi’s conduct was discussed and put to a vote of the general membership at the May 22,
2011 meeting. Under these circumstances, the act of filing the Affidavit of Charges and
statements made therein or related thereto were also matters of public interest and
protected activity. (See Ruiz v. Harbor View Community Assn., supra, 134 Cal.App.4th
at pp. 1468, 1470 [private letters between attorney for homeowner’s association and
homeowner regarding dispute about architectural approval were protected
communications; they were related to the homeowner’s conduct at the association’s
board meeting, the dispute and the application of the architectural guidelines were of
interest to the homeowner community, and the homeowner’s “conduct at [association]
board meetings and interaction with board members affected [the association’s]
governance and therefore would also be of interest to community members”].)11
b. The “arising from” requirement
The trial court, while recognizing that “the claims to some extent arise out of
comments made in a public forum,” denied the anti-SLAPP motion on the ground
11 Appellants argue that the November 21, 2010 meeting and the “Affidavit of
Charges” fall within section 425.16, subdivision (e) as statements or writings made in
connection with an “official proceeding authorized by law,” or are protected as pre-
litigation activity. In light of our conclusion that the statements fall within
subdivision (e), we need not reach these questions.
20
appellants failed “to establish that the subject claims arise out of protected activity, that
is, it has not been established that the gravamen of the claims involves statements made
in connection with an issue of public interest.”
“The anti-SLAPP statute applies only to a ‘cause of action . . . arising from’ acts in
furtherance of the defendant’s constitutional right of petition or free speech in connection
with a public issue.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal. App. 4th 181,
186.) The “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. [Citations.]” (City of Cotati v.
Cashman, supra, 29 Cal.4th at p. 78.) “In assessing whether a cause of action arises from
protected activity, ‘ “we disregard the labeling of the claim [citation] and instead
‘examine the principal thrust or gravamen of a plaintiff's cause of action.’ ” ’ ” (Hunter
v. CBS Broadcasting Inc. (2013) 221 Cal. App. 4th 1510, 1520.) “We assess the principal
thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct . . . that
provides the foundation for the claim.’ [Citation.] If the core injury-producing conduct
upon which the plaintiff’s claim is premised does not rest on protected speech or
petitioning activity, collateral or incidental allusions to protected activity will not trigger
application of the anti-SLAPP statute.” (Ibid.) “[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.” (City of Cotati v. Cashman, supra, at p. 78; Equilon
Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 66.) The anti-SLAPP
statute’s definitional focus is not the form, label, or “essence” of the plaintiff’s cause of
action but “rather, the defendant’s activity that gives rise to his or her asserted liability—
and whether that activity constitutes protected speech or petitioning.” (Navellier v.
Sletten, supra, 29 Cal.4th at p. 92; People ex rel. Fire Ins. Exchange v. Anapol, supra,
211 Cal.App.4th at p. 823; Tuszynska v. Cunningham (2011) 199 Cal. App. 4th 257, 267.)
On the other hand, “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
21
allegations referring to arguably protected activity are only incidental to a cause of action
based essentially on nonprotected activity, collateral allusions to protected activity should
not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife
Internat., Inc., supra, 113 Cal.App.4th at p. 188; see People ex rel. Fire Ins. Exchange v.
Anapol, supra, 211 Cal.App.4th at p. 823.) “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.)
(i) The retaliation and aiding and abetting causes of action arise from protected
activity
Tripi’s sixth cause of action for “aiding, abetting and inciting harassment,” alleged
against the individual defendants, arises solely from protected activity. Tripi’s complaint
alleges that Milars, Germain, Rizzo, Jackson, Blake, Catmull, and Engleman “intended to
and did aid, abet or incite the Union in its harassment of” her in violation of Government
Code section 12940, subdivisions (b) (discrimination), (h) (retaliation), and (k) (failure to
take reasonable steps to prevent discrimination and harassment), and that their actions
were designed to “taint her and prevent her from being hired by other Union members.”
The only acts alleged in support of this cause of action are the protected activities
discussed ante, that is, defendants’ statements at the November 21, 2010 or May 11, 2011
meetings; the comments on the Facebook forum; and the filing of the Affidavit of
Charges. Indeed, Tripi acknowledges that her “claim against the Individual Appellants is
based entirely upon speech by the Individual Appellants.” The gravamen of the sixth
cause of action is that the individual defendants aided and abetted the Union in harassing
Tripi and discriminating against her by making statements that caused other Union
members not to hire her. (See Renewable Resources Coalition, Inc. v. Pebble Mines
Corp. (2013) 218 Cal. App. 4th 384, 396 [gravamen is defined by the acts on which
liability is based].) Defendants’ alleged statements were not merely incidental, or
evidence of harassment; they were the harassment. They were not merely evidence of
retaliation; they were the acts alleged to be retaliatory. In short, the only acts underlying
22
the sixth cause of action were themselves acts in furtherance of the rights of free speech
and petition. (See City of Cotati, supra, 29 Cal.4th at p. 78.)
The acts alleged as the basis for the first cause of action for retaliation in violation
of the FEHA, alleged against the Union, are that the Union discriminated against Tripi for
filing an EEOC complaint by “blacklisting” her and damaging her reputation. She avers
that the Union’s retaliatory policies and practices included “making and allowing
defamatory statements by officers and members as alleged herein; by insuring Tripi did
not get referrals from the Availability List; maintaining Tripi on a list of Union members
who were not to be given job assignments; and by bringing false and unmerited charges
against her.” The Union’s actions were “designed to negatively taint her and prevent her
from being hired by other Union members.”
Thus, Tripi’s first cause of action is based upon some acts that constitute protected
activity (statements by the individual defendants that were allegedly defamatory and/or
damaged Tripi’s reputation, and the filing of the Affidavit of Charges), and some that are
not (the use of the availability list, the maintenance of her name on the nonreferral list,
and other forms of “blacklisting”). Where a cause of action is based on both protected
activity and unprotected activity (a “mixed” cause of action), it is subject to section
425.16 unless the protected conduct is merely incidental to the unprotected conduct.
(Wallace v. McCubbin (2011) 196 Cal. App. 4th 1169, 1187; Salma v. Capon (2008)
161 Cal. App. 4th 1275, 1287-1288; Haight Ashbury Free Clinics, Inc. v. Happening
House Ventures (2010) 184 Cal. App. 4th 1539, 1551.) An alleged act is incidental to a
claim “only if the act is not alleged to be the basis for liability.” (Wallace v. McCubbin,
supra, at p. 1183.) That the protected activity comprises a relatively small proportion of
the wrongdoing alleged is not dispositive. (Haight Ashbury Free Clinics, Inc., at
pp. 1552-1553.)
The protected activities alleged as the basis for the first cause of action are not
merely incidental; the acts are alleged to be part of the basis for the Union’s liability. The
communications at issue are allegedly retaliatory and the Union’s liability is premised
upon them. These alleged acts of retaliation cannot be merely incidental to a cause of
23
action for retaliation. (See Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1187.) As
with the sixth cause of action, the retaliation claim is based upon, and arises from, the
protected activities of the individual defendants. (See City of Cotati v. Cashman, supra,
29 Cal.4th at p. 78.) The first cause of action thus arises from protected activity.
Tripi argues to the contrary that her retaliation claim does not arise from the
Executive Board’s report or its findings on her accusations, or from a position the Union
took on a public issue. Instead, she contends, the gravamen of her complaint is that the
Union violated California’s antidiscrimination laws, defendants singled her out for
harassment and retaliation, the individual defendants aided and abetted the Union in
violating the FEHA, and the statements at issue are merely evidence of appellants’
“retaliatory animus” and harassment.
We disagree. Wallace v. McCubbin provides helpful analysis of Tripi’s
contention. As Wallace explained, “the first prong of analysis under the anti-SLAPP
statute focuses on the acts on which liability is based, not the gestalt of the cause of
action.” (Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1175.) In Wallace, the
plaintiffs argued that their causes of action arose from unlawful discriminatory efforts to
oust them from their apartment, rather than from the protected activities of, inter alia, an
unlawful detainer action and service of a three-day notice. Wallace rejected this view,
reasoning: “One need look no further than the language of the anti-SLAPP statute to
conclude that [plaintiffs’] gestalt theory is incorrect. According to subdivision (b)(1) of
section 425.16: ‘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’ is subject to a motion to
strike. . . . From this language, it is clear that we must look at the nature of the specific
‘act’ that allegedly gives rise to the cause of action, not the gestalt or gist of the
allegations generally. [Citation.] [¶] Indeed, our Supreme Court has made clear that the
statutory language focuses on acts: ‘In short, the 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.]’ [Citation.] We are admonished to examine the act underlying the
24
cause of action, not the gist of the cause of action. [¶] Furthermore, while it is often said
that the first prong of the anti-SLAPP analysis calls us to ascertain the ‘gravamen’ of the
cause of action, for anti-SLAPP purposes this gravamen is defined by the acts on which
liability is based, not some philosophical thrust or legal essence of the cause of action.”
(Id. at pp. 1189-1190; see also Tuszynska v. Cunningham, supra, 199 Cal.App.4th at
pp. 268-269 [trial court erred by conflating defendants’ motive in a discrimination case
with the conduct itself].)
Nor do we agree that the protected activity at issue here is merely “evidence.”
“[A] court ruling on an anti-SLAPP motion must distinguish between allegedly wrongful
acts and evidence of those acts. ‘Where the defendant’s protected activity will only be
used as evidence in the plaintiff’s case, and none of the claims are based on it, the
protected activity is only incidental to the claims,’ and will therefore not support an anti-
SLAPP motion.” (People ex rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th at
p. 823.) Obviously, acts giving rise to a cause of action will have evidentiary value, but
that does not mean the cause of action is not also based upon those acts. Here, as we
have explained, the protected acts themselves are alleged to constitute retaliation, and are
not merely evidence of retaliation. (See Wallace v. McCubbin, supra, 196 Cal.App.4th at
p. 1183 [“It makes no sense for [plaintiffs] to argue that their cause of action for
defendants’ attempt to evict them wrongfully is not based on defendants’ alleged attempt
to evict them”]; Tuszynska v. Cunningham, supra, 199 Cal.App.4th at p. 270 [in the
absence of the protected conduct, plaintiff’s gender discrimination claims would have no
basis].)
Tripi cites Department of Fair Employment & Housing v. 1105 Alta Loma Road
Apartments, LLC (2007) 154 Cal. App. 4th 1273 (Alta Loma), Jespersen v. Zubiate-
Beauchamp (2003) 114 Cal. App. 4th 624, and our opinions in Santa Monica Rent Control
Bd. v. Pearl Street, LLC (2003) 109 Cal. App. 4th 1308 (Pearl Street), and Gallimore v.
State Farm Fire & Casualty Ins. Co. (2002) 102 Cal. App. 4th 1388, in support of her
contention that the gravamen of her causes of action is discrimination and retaliation,
which does not arise from the protected conduct.
25
In Alta Loma, a landlord decided to remove its apartment building from the rental
market. One of its tenants asserted she was disabled and sought extension of the period
during which she might find alternate housing. After the tenant failed to provide
confirmation of her disability, the landlord had the tenant removed through an unlawful
detainer action. The Department of Fair Employment and Housing (DFEH) sued the
landlord for disability discrimination, and the landlord brought an anti-SLAPP motion.
(Alta Loma, supra, 154 Cal.App.4th at pp. 1275-1276.) The trial court denied the motion
because the gravamen of the complaint was for disability discrimination, and therefore
the suit did not arise from the landlord’s petitioning or free speech rights. Its ruling was
upheld on appeal. (Id. at p. 1276.) The appellate court assumed the landlord’s act of
prosecuting its unlawful detainer action against the tenant constituted protected activity.
(Id. at p. 1283.) But the gravamen of the DFEH’s action was “not an attack on any act
Alta Loma committed during the rental property removal process or during the eviction
process itself.” (Id. at p. 1284.) Instead, the allegations of wrongdoing arose from Alta
Loma’s alleged acts of failing to accommodate the tenant’s disability. “The
[communications] and filing of unlawful detainer actions constituted DFEH’s evidence of
Alta Loma’s alleged disability discrimination. In other words, DFEH might well have
filed the same lawsuit had Alta Loma simply ignored [the tenant’s] claim of disability
and requests for extension of her tenancy without any communication . . . and simply
filed a complaint for unlawful detainer.” (Id. at pp. 1284-1285.)
In Pearl Street, a rent control board sought a judicial determination of the
maximum rent defendant landlords could charge for two apartments, and the landlords
brought an anti-SLAPP motion. (Pearl Street, supra, 109 Cal.App.4th at pp. 1311,
1315.) We assumed that the landlords’ activities of filing paperwork to restore two units
to the rental market were undertaken in furtherance of their rights of petition or free
speech. (Id. at p. 1318.) However, “defendants were not sued for their conduct in
exercising such constitutional rights. They were sued by the Board to compel their
compliance with the provisions of the rent control law. [¶] Thus, while this suit may
have been ‘triggered by’ defendants’ submission of such documents to the Board, it is not
26
true that this suit is based on the filing of such papers. Rather, the suit is based on
activity that preceded the filing of the papers. This suit is based on the Board’s claim
that defendants are charging an illegal rent for units A and C.” (Ibid.)
In Gallimore, the plaintiff alleged State Farm had engaged in claims handling
misconduct in connection with the Northridge earthquake, in violation of the Business
and Professions Code. The complaint alleged that the Department of Insurance (DOI)
had investigated and found violations in State Farm’s claims files. State Farm contended
the plaintiff’s allegations were based upon and arose from confidential written reports
that it had filed with the DOI, which amounted to protected activity. (Gallimore v. State
Farm Fire & Casualty Ins. Co., supra, 102 Cal.App.4th at pp. 1391-1393.) We
concluded that the trial court had “confused allegations of wrongdoing with the evidence
required to prove them,” and reversed the order granting the motion. (Id. at pp. 1391,
1399.) Although the DOI report may have triggered the action, the action did not arise
from the report or from any communication by State Farm to the DOI. (Id. at p. 1399.)
The complaint sought to call State Farm to task for claims handing misconduct and
violation of statutory and regulatory rules; it did not allege that any communication
between State Farm and the DOI was “wrongful or the cause of any injury.” (Ibid.)
Finally, in Jespersen v. Zubiate-Beauchamp, a legal malpractice case, an anti-
SLAPP motion was properly denied because the suit was based on the attorneys’ failure
to comply with a discovery statute and court orders. Thus, the “alleged attorney
malpractice did not consist of any act in furtherance of anyone’s right of petition or free
speech, but appellants’ negligent failure to do so on behalf of their clients.” (Jespersen v.
Zubiate-Beauchamp, supra, 114 Cal.App.4th at p. 631.)
Here, in contrast to these cases, the protected speech is alleged as among the very
acts constituting retaliation, the cause of action at issue. Tripi, unlike the plaintiffs in the
cited cases, does contend the protected activities were themselves wrongful and seeks to
recover damages for them. In the absence of the protected activity, Tripi’s claims against
the individual defendants would not exist. As we have explained, the cause of action for
retaliation against the Union arises from acts of retaliation, i.e., the allegedly retaliatory
27
statements and the internal union charges filed against Tripi, among other things. (See
Wallace v. McCubbin, supra, 196 Cal.App.4th at pp. 1191-1192 & fn. 10 [distinguishing
Alta Loma and Pearl Street].)
(ii) Second through fourth causes of action for age, national origin, and sex
discrimination
We come to a different conclusion in regard to Tripi’s second through fourth
causes of action for age, national origin, and sex discrimination. Tripi’s second cause of
action for age discrimination alleges that she was a qualified member of the union; age
was a motivating factor in the Union’s decision to discriminate against her; and the
Availability List guidelines adversely and disproportionally impacted Union members
over 40. The complaint expressly lists the “facts that support [an] inference of age
discrimination”; the protected activities are not among them. Instead, the allegations
concern the Availability List and the distribution of job assignments.12
Similarly, the complaint does not allege that the protected activities are the basis
for the third cause of action for national origin discrimination or the fourth cause of
action for sex discrimination. The factual allegations of the complaint contain, under a
separate heading entitled “disparate treatment by Union against Tripi based on national
origin,” the allegations regarding the White Union member who allegedly obtained extra
work despite her dues delinquency, and the allegations regarding Sayer’s reaction to
being replaced with a Hispanic woman. Contrary to appellants’ contentions, reading the
complaint in a fair and commonsense fashion, it is apparent the second through fourth
causes of action do not arise from the protected activity.13
12 The Union argues that the trial court struck the complaint’s allegations regarding
the Availability List, with leave to amend, because Tripi did not include such allegations
in her EEOC complaint. Be that as it may, the point is that the allegations underlying the
second cause of action do not arise from the protected speech. The question of whether
the age discrimination cause of action is viable is not before us.
13 Of course, this analysis necessitates the conclusion that, should any of Tripi’s
causes of action proceed, she cannot premise them on the protected activities.
28
Appellants argue that the protected activity made up a material part of the factual
predicate of each of the claims against the Union because each cause of action
incorporates by reference all factual allegations in the complaint, as well as all preceding
paragraphs addressing the specific causes of action. However, a fair and commonsense
reading of the complaint suggests otherwise. We decline to base our analysis of whether
each cause of action “arises” from the protected conduct on this constricted and technical
reading of the complaint.
Appellants also argue that Tripi failed to expressly argue below that her
discrimination claims are not based on protected activity, and therefore her contentions in
this regard assert a new theory and must be deemed to have been waived. (See Brown v.
Boren (1999) 74 Cal. App. 4th 1303, 1316.) We disagree. Tripi’s argument below was
that none of the causes of action arose from protected activity. That she has provided a
more focused argument in this regard on appeal does not, on the circumstances presented
here, indicate she has materially changed her theory as appellants suggest.
(iii) The fifth cause of action
Tripi’s fifth cause of action against the Union is for failure to prevent
discrimination and harassment. Insofar as this cause of action is based on allegations that
the Union failed to prevent the retaliation alleged in cause of action 1, or the “aiding,
abetting, and inciting harassment” alleged in cause of action 6, it is derivative of those
causes of action and the anti-SLAPP motion should have been granted. To the extent the
fifth cause of action pertains to Tripi’s causes of action for age, national origin, and sex
discrimination, and is based on conduct other than the protected activities we have
discussed ante, the trial court’s ruling was correct.
3. Remand for consideration of the second prong of the section 425.16 analysis
Based on its ruling that Tripi’s causes of action did not arise out of protected
activity, the trial court did not undertake an analysis of the second prong of the section
425.16 analysis, that is, whether Tripi met her burden to demonstrate a probability of
prevailing on her claims. The trial court also found it unnecessary to rule on appellants’
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numerous objections to Tripi’s evidence offered in opposition to the anti-SLAPP motion,
concluding that the objections were irrelevant in light of its ruling.
Appellants observe that this court has the discretion to decide the question and
request that we do so. (See Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1195 [an
appellate court may remand the matter to the trial court to conduct the second-prong
analysis, but has discretion to conduct the analysis itself].) In our view, remand is the
more appropriate procedure here. As explained in Collier v. Harris (2015) 240
Cal. App. 4th 41, a “few appellate courts have decided the matter when a quick decision
was necessary,” for example when a contract was set to expire or when the parties
disagreed on how the second prong should be applied. (Id. at p. 58 and authorities cited
therein.) “The majority of appellate courts, however, have declined to do so either
because contested evidentiary issues existed or simply because it was appropriate for the
trial court to decide the issue first.” (Ibid.) Moreover, rulings on the evidentiary
objections are necessary to determine whether Tripi has presented admissible evidence
demonstrating a probability of success on the first and sixth causes of action. “Rulings
on evidentiary objections involve an exercise of discretion, and it is the trial court’s
responsibility to rule on the objections in the first instance.” (Hall v. Time Warner, Inc.
(2007) 153 Cal. App. 4th 1337, 1348.) Appellants have failed to offer any persuasive
reason why we should not allow the trial court to rule on the second prong in the first
instance, especially in light of the unresolved challenges to Tripi’s evidence. “[W]when
we decide a matter in the first instance, we deprive the parties of a layer of independent
review available to them when the matter is decided initially by the trial court. We think
it best that the able and experienced trial judge decide the issue.” (Collier v. Harris,
supra, at p. 58.)
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DISPOSITION
The trial court’s order is reversed insofar as it pertains to the first and sixth causes
of action. As to the fifth cause of action, the trial court’s order is reversed insofar as the
fifth cause of action derives from the first and sixth causes of action, and is affirmed
insofar as the fifth cause of action derives from the second, third, and fourth causes of
action. The order is affirmed insofar as it pertains to the second, third, and fourth causes
of action. The matter is remanded for further proceedings in accordance with the
opinions expressed herein. Appellants Milars, Germain, Rizzo, Jackson, Blake, Catmull,
and Engelman are awarded costs. The Union and Tripi shall bear their own costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
HOGUE, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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