Weischadle v. City of L.A. CA2/7

Filed 6/14/22 Weischadle v. City of L.A. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GLORIA WEISCHADLE, B310430
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV17245)
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEALS from orders, judgment and postjudgment order
of the Superior Court of Los Angeles County, Yolanda Orozco,
Judge. Affirmed.
Gloria Weischadle, in pro. per., for Plaintiff and Appellant.
Vanderford & Ruiz, Rodolfo F. Ruiz and John R. Meehan
for Defendants and Respondents City of Los Angeles.
Kaufman, Dolowich Voluck, Andrew J. Waxler and John T.
Lupton for Defendants and Respondents Robert Charboneau and
Law Offices of Robert Charboneau.
_____________________
After an unsuccessful premises liability action against the
City of Los Angeles, Gloria Weischadle sued the City and its
counsel, Robert Charboneau and the Law Offices of Robert
Charboneau, alleging they had engaged in fraud, evidence
suppression and other discovery-related misconduct that left her
unable to prove her case. The City and the Charboneau
defendants filed special motions to strike, asserting each claim in
Weischadle’s complaint arose out of protected activity within the
1
meaning of Code of Civil Procedure section 425.16 and lacked
even minimal merit. The trial court granted the special motions
to strike and the related motions for attorney fees.
On appeal2 Weischadle contends the trial court erred in
finding her claims were subject to a special motion to strike
because they did not arise from protected activity in connection
with a public issue and she alleged illegal activity not subject to
the protections of section 425.16. She also contends she
1
Statutory references are to this code unless otherwise
stated.
2
Weischadle filed timely notices of appeal from the
November 10, 2020 orders granting the special motions to strike
(case no. B310430). On March 15, 2021 Weischadle also filed a
timely notice of appeal from the March 4, 2021 postjudgment
order granting the Charboneau defendants’ motion for attorney
fees (after entry of judgment dismissing Weischadle’s action
against them) and a premature notice of appeal from the court’s
February 17, 2021 prejudgment order granting the City’s
attorney fee motion (case no. B311808). We deem the premature
notice of appeal to be a timely appeal from the March 24, 2021
judgment entered dismissing Weischadle’s action against the City
and awarding the City its attorney fees (Cal. Rules of Court,
rule 8.104(d)). We ordered the appeals consolidated.
2
demonstrated her claims had minimal merit. Because the orders
granting the special motions to strike were erroneous, she argues,
so too were the court’s attorney fee orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Weischadle’s Premises Liability Action Against the City
Weischadle fell on an escalator at Los Angeles
International Airport in September 2015 and sued the City
(named in the lawsuit as Los Angeles World Airports (LAWA), a
City department) for premises liability. During most of the trial
Weischadle represented herself; the Charboneau defendants
represented the City. After Weischadle failed to present any
admissible evidence to support her claim of dangerous condition
of public property, the trial court granted the City’s motion for
nonsuit. Weischadle moved for a new trial, arguing the court had
erred in sustaining the City’s objections to her proposed evidence
on hearsay grounds and excluding it. She also argued the City
had failed to produce critical evidence she had requested during
discovery, such as surveillance video footage depicting the
accident and the identities of, and contact information for, two
employees of the Transportation Security Administration (TSA)
who had witnessed the accident. The court denied Weischadle’s
new trial motion and entered judgment in favor of the City.
Our colleagues in Division Four of this court affirmed the
judgment on appeal, rejecting Weischadle’s argument the City
had interfered with her ability to present witnesses at trial.
(Weischadle v. Los Angeles World Airports (Oct. 28, 2019,
B294949 [nonpub. opn.].) As to Weischadle’s claims of discovery
misconduct, the court stated, “It is unclear from this record
whether [Weischadle’s] claim of discovery misconduct was fully
litigated below, nor has she demonstrated how any of LAWA’s
3
asserted objections were deficient. Indeed, the partial set of
discovery requests and responses in the [limited] record before us
demonstrates that LAWA did in fact substantively respond to
some of Weischadle’s requests, contrary to her claim. ‘Failure to
provide an adequate record on an issue requires that the issue be
resolved against [appellant].’” (Weischadle v. Los Angeles World
Airports, supra, B294949.)
2. Weischadle’s Fraud Action Against the City and the
Charboneau Defendants
Weischadle filed the case at bar in May 2020 purporting to
allege 11 causes of action: fraud, evidence tampering, witness
tampering, conspiracy, conspiracy in concert, aiding and abetting,
defamation, false representation, intentional infliction of
emotional, physical and mental distress, gross negligence and
3
breach of fiduciary duty. Each cause of action was based on the
same facts: Weischadle had requested information and evidence
from the City during discovery in the premises liability action;
the City and the Charboneau defendants responded either with
improper objections or false assertions that the City did not
possess the evidence requested; the City and the Charboneau
defendants interfered with, withheld or destroyed the evidence;
3
Weischadle filed an earlier lawsuit against the Charboneau
defendants alleging substantially similar claims, but voluntarily
dismissed that suit after the superior court issued a tentative
ruling granting the Charboneau defendants’ special motion to
strike. The court awarded the Charboneau defendants attorney
fees as the prevailing parties on the motion notwithstanding
Weischadle’s voluntary dismissal of her complaint. We affirmed
that order. (Weischadle v. Charboneau (May 20, 2021, B304032)
[nonpub. opn.].)
4
and as a result of the City’s and the Charboneau defendants’ false
statements and litigation misconduct in the premises liability
action, she had been unable to prove her case at trial and
suffered additional harm to her emotional and physical well-
4
being and her reputation.
3. The City’s and the Charboneau Defendants’ Special
Motions To Strike
a. The moving papers
The City and the Charboneau defendants filed special
motions to strike Weischadle’s complaint pursuant to
section 425.16, arguing each claim was based on oral or written
statements offered during, or in connection with, a judicial
proceeding, protected activity within the meaning of
section 425.16, subdivision (e)(1) or (2), and lacked minimal
merit. In a declaration submitted in support of both motions,
4
In support of her claims Weischadle alleged the City and
the Charboneau defendants engaged in the following actions
during the premises liability lawsuit: Provided false responses
and made improper objections to her written discovery requests;
bullied, mocked and accused her of lying about the accident to
obtain an undeserved monetary recovery; altered or directed the
alteration of the court reporter’s transcript of proceedings to
remove the bullying statements; suppressed or intentionally
destroyed the surveillance footage of the accident; replaced
identifying escalator tags at the airport to confuse Weischadle
and make it appear she was lying about the escalator on which
she fell; and failed to make defense witnesses available on the
first day of trial, leaving Weischadle unable to authenticate
evidence she needed in her case-in-chief. As a result of all this
litigation misconduct, Weischadle alleged, she lost the premises
liability action.
5
Robert Charboneau stated Weischadle had informally asked him
early in the litigation for the identities of two TSA agents who
had witnessed the accident. After consulting with his client,
Charboneau learned the City did not possess on-duty information
about the TSA employees, who are federal agents. He reported
this to Weischadle and suggested she contact TSA directly. In
response to Weischadle’s request for surveillance footage of the
incident, Charboneau told Weischadle surveillance footage, which
otherwise would have been preserved, had been recorded over as
a matter of airport policy when Weischadle, who had not wanted
to miss her flight, did not report the accident to LAWA in a
timely fashion. Weischadle served formal written discovery
seeking the same information and filed two ex parte motions
challenging the City’s responses, which were consistent with
Charboneau’s informal statements to Weischadle. The trial court
denied both ex parte requests for lack of emergency and invited
her to file a noticed motion. She never did.
b. Weischadle’s opposition
In her opposition papers Weischadle argued section 425.16
did not apply because her complaint alleged causes of action that
arose from the City’s and the Charboneau defendants’ illegal
conduct during the premises liability action and involved a
private, not a public, issue.
Weischadle also argued her claims had at least minimal
merit. In a declaration submitted with her opposition papers,
Weischadle stated the City and the Charboneau defendants had
lied to her when they claimed they did not know the identities of
the TSA witnesses. Citing exhibit 25 to her declaration, which
appears to be a July 7, 2018 email from the TSA Contact Center
stating, “After careful review, we have determined that your
6
inquiry falls outside TSA’s jurisdiction,” Weischadle argued the
City, not TSA, was responsible for providing the requested
information. (Exhibit 25, which was excluded from evidence at
the hearing on the special motion to strike for lack of
authentication, did not identify the nature of Weischadle’s
inquiry.)
In addition, Weischadle asserted, as she had in the earlier
premises liability action, the City and the Charboneau
defendants had tampered with evidence by intentionally
withholding from trial or destroying surveillance camera footage
to undermine her ability to prove her case; removing or obtaining
the removal from the reporters’ transcript of bullying comments
made to her during her deposition or in court; and failing to
voluntarily make defense witnesses available the first day of trial
after it became clear she could not authenticate the evidence she
wanted to introduce in her case-in-chief.
Weischadle also submitted with her opposition papers
many of the same exhibits she had sought unsuccessfully to
introduce at trial in the premises liability action. Weischadle
argued those exhibits demonstrated the City had known of the
dangerous condition of the airport escalators caused by power
surges and had tampered with evidence by replacing airport
escalator identification tags with different identification tags to
confuse Weischadle and make it appear Weischadle had fallen on
a different escalator.
7
c. The City’s and the Charboneau defendants’
objections; Weischadle’s response
The City and the Charboneau defendants objected to all of
Weischadle’s exhibits for lack of authentication, among other
grounds. Responding to the authentication objections only,
Weischadle stated in a supplemental declaration she would
authenticate the exhibits “during the discovery process of the
litigation.”
d. The trial court’s ruling on objections and order
granting the special motions to strike
The court sustained the Charboneau defendants’ objections
to all of Weischadle’s exhibits for lack of authentication and
excluded them. The court sustained the City’s objection on
authentication grounds to Weischadle’s exhibit 38, her alleged
notice of tort claim, and otherwise declined to rule on the
remainder of the City’s objections, explaining they were not
material to the court’s disposition of the City’s motion.
After ruling on the defendants’ objections, the court
granted both special motions to strike. The court concluded every
cause of action against both the Charboneau defendants and the
City arose from protected activity pursuant to section 425.16,
subdivision (e)(1) and (2), and Weischadle had failed to
demonstrate her claims had minimal merit. In particular, the
court ruled the protected activities Weischadle had asserted
against the Charboneau defendants—statements made by Robert
Charboneau during discovery and at trial in the prior premises
liability action—were absolutely privileged pursuant to Civil
Code section 47, subdivision (b), and Weischadle had presented
no admissible evidence suggesting the Charboneau defendants
8
had destroyed or altered evidence so as to come within an
exception to that privilege.
As to Weischadle’s claims against the City, the court ruled
Weischadle provided no admissible evidence she had filed a
government claim, a necessary prerequisite to her lawsuit
against the City. Alternatively, even if her exhibit 38 “notice of
claim” were admissible and sufficient to constitute a proper
government claim, the court ruled the City was immune from
liability absent an authorizing statute, and Weischadle had cited
none. Weischadle’s citation to Government Code section 835
(liability for dangerous condition of property) did not assist her,
the court ruled, because that claim, already litigated and decided,
was barred by the doctrine of res judicata/claim preclusion.
4. The Motions for Costs and Attorney Fees
The City and the Charboneau defendants moved to recover
their costs and attorney fees pursuant to section 425.16,
subdivision (c). The court granted both motions, awarding the
City $54,958.25 in attorney fees and costs and the Charboneau
defendants $34,935.75 in attorney fees and costs.
DISCUSSION
1. Governing Law and Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “A cause of action against
a person arising from any act of that person in furtherance of a
person’s right to 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 there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16,
9
subd. (b)(1); see Rand Resources, LLC v. City of Carson (2019)
6 Cal.5th 610, 619-620 [“[a] court may strike a cause of action
only if the cause of action (1) arises from an act in furtherance of
the right of petition or free speech ‘in connection with a public
issue,’ and (2) the plaintiff has not established ‘a probability’ of
prevailing on the claim”].)
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public
interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public
interest.”
In ruling on a motion under section 425.16, the trial court
engages in a two-step process. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral);
accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
10
1009 (Bonni); Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).)
As to the first step of the analysis, “[a] claim arises from
protected activity when that activity underlies or forms the basis
for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063; accord,
Bonni, supra, 11 Cal.5th at p. 1009.) Thus, “[t]he defendant’s
first-step burden is to identify the activity each challenged claim
rests on and demonstrate that that activity is protected by the
anti-SLAPP statute. A ‘claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for
which liability is asserted.’” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson); see Bonni, at p. 1009 [“[t]he
defendant’s burden is to identify what acts each challenged claim
rests on and to show how those acts are protected under a
statutorily defined category of protected activity”]; Park, at
p. 1060 [same].)
A motion pursuant to section 425.16 need not challenge an
entire cause of action as pleaded in the complaint. (Bonni, supra,
11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather,
“courts should analyze each claim for relief—each act or set of
acts supplying a basis for relief, of which there may be several in
a single pleaded cause of action—to determine whether the acts
are protected and, if so, whether the claim they give rise to has
the requisite degree of merit to survive the motion.” (Bonni, at
p. 1010; accord, Baral, at p. 395; Musero v. Creative Artists
Agency, LLC (2021) 72 Cal.App.5th 802, 815; see Park, supra,
2 Cal.5th at p. 1063 [in determining whether a claim arises from
protected activity, “courts should consider the elements of the
11
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability”].)
“As to the second step inquiry, a plaintiff seeking to
demonstrate the merit of the claim ‘may not rely solely on its
complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.’” (Sweetwater Union High School
5
Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940; accord,
Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “‘We
have described this second step as a “summary-judgment-like
procedure.” [Citation.] The court does not weigh evidence or
resolve conflicting factual claims. Its inquiry is limited to
whether the plaintiff has stated a legally sufficient claim and
made a prima facie factual showing sufficient to sustain a
favorable judgment. It accepts the plaintiff’s evidence as true,
and evaluates the defendant’s showing only to determine if it
defeats the plaintiff's claim as a matter of law.’” (Monster
5
Although the Supreme Court in Sweetwater Union High
School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931referred generally to “competent admissible evidence,” the Court
held evidence that is potentially admissible at trial, but not
presented in admissible form, could be considered in determining
whether the plaintiff had demonstrated a probability of success
on the merits: “[A]t the second stage of an anti-SLAPP hearing,
the court may consider affidavits, declarations, and their
equivalents if it is reasonably possible the proffered evidence set
out in those statements will be admissible at trial. Conversely, if
the evidence relied upon cannot be admitted at trial, because it is
categorically barred or undisputed factual circumstances show
inadmissibility, the court may not consider it in the face of an
objection. If an evidentiary objection is made, the plaintiff may
attempt to cure the asserted defect or demonstrate the defect is
curable.” (Id. at p. 949.)
12
Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714
[the court should grant the section 425.16 motion “‘if, as a matter
of law, the defendant’s evidence supporting the motion defeats
the plaintiff’s attempt to establish evidentiary support for the
claim’”].)
We review de novo an order granting or denying a special
motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th
at p. 884; Park, supra, 2 Cal.5th at p. 1067.)
2. Weischadle’s Claims Against the Charboneau
Defendants and the City Arose from Protected Activity
The trial court ruled each of Weischadle’s claims against
the Charboneau defendants and the City arose from oral and
written statements made during the premises liability action,
protected activity within the meaning of section 425.16,
subdivision (e)(1) and (2). (See Bonni, supra, 11 Cal.5th at
p. 1024 [“claims that arise out of the filing of a suit arise from
protected activity for purposes of the anti-SLAPP statute”];
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [anti-SLAPP
statutes protects not only litigants, but also their attorneys’
litigation-related statements]; Contreras v. Dowling (2016)
5 Cal.App.5th 394, 408-409 [“‘[u]nder the plain language of
section 425.16, subdivision (e)(1) and (2), as well as the case law
interpreting those provisions, all communicative acts performed
by attorneys as part of their representation of a client in a
judicial proceeding or other petitioning context are per se
protected as petitioning activity by the anti-SLAPP statute’”];
Finton Construction, Inc. v. Bidna & Keys, APLC (2015)
238 Cal.App.4th 200, 210 (Finton Construction) [same].)
That Weischadle alleged the communications were
fraudulent did not remove them from the protection of the anti-
13
SLAPP statute. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 90
[claim alleging fraud during lawsuit settlement negotiations was
based on protected activity; because alleged fraudulent statement
was made in connection with issue under consideration or review
by a judicial body, it was protected activity within the meaning of
section 425.16, subdivision (e)(1)]; Crossroads Investors, L.P. v.
Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 779
[party’s written discovery responses during bankruptcy litigation,
including any omissions in its written responses, were protected
activity within meaning of section 425.16]; Suarez v. Trigg
Laboratories, Inc. (2016) 3 Cal.App.5th 118, 123 [claim of
fraudulent concealment during settlement discussions was based
on protected activity within meaning of section 425.16,
subdivision (e)(1)].)
Weischadle contends the court erred in granting the special
motions to strike because her claims involve a private issue and
alleged illegal activity, the same two arguments she made, and
we rejected, in Weischadle v. Charboneau (May 20, 2021,
B304032) [nonpub. opn.]. They fare no better here.
Contrary to Weischadle’s contention, when, as here, the
“defendant’s alleged acts fall under the first two prongs of
section 425.16, subdivision (e) (speech or petitioning before a
legislative, executive, judicial, or other official proceeding, or
statements made in connection with an issue under review or
consideration by an official body), the defendant is not required to
independently demonstrate that the matter is a ‘public issue’
within the statute’s meaning.” (Consumer Justice Center v.
Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 600;
accord, Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1123.)
14
Weischadle’s reliance on Flatley v. Mauro (2006) 39 Cal.4th
299 to argue the anti-SLAPP statute does not apply because her
complaint alleged illegal conduct—witness and evidence
tampering by the City and the Charboneau defendants in the
premises liability action— is also without merit. The Flatley
Court held, if “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; accord, Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 965; see Gerbosi v. Gaims, Weil, West &
Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [“[w]e understand
Flatley to stand for this proposition: when a defendant’s
assertedly protected activity may or may not be criminal activity,
the defendant may invoke the anti-SLAPP statute unless the
activity is criminal as a matter of law”].) Here, the Charboneau
defendants vigorously disputed the allegations of any illegal
conduct and supplied evidence contradicting Weischadle’s
declaration. When, as here, the conduct is neither conceded to be
illegal nor is illegal as a matter of law, the allegations of illegality
relate to the second prong of the anti-SLAPP analysis, not the
first. (Flatley, at p. 316 [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”]; Seltzer, at p. 965 [same].)
Finally, Weischadle adds that “none of the documents” in
this case was introduced in the prior premises liability action.
We are uncertain as to which documents she refers or the
significance of the fact they were excluded from evidence at the
15
premises liability trial. Weischadle does not suggest the
statements that form the bases of her claims were not made in
connection with that action. In fact, her allegations are directly
to the contrary.
3. Weischadle Did Not Carry Her Burden To Demonstrate
Her Claims against the Charboneau Defendants Had
Minimal Merit
Civil Code section 47, subdivision (b), bars all tort claims
other than for malicious prosecution based on statements or other
communications made in a judicial proceeding.6 (Flatley v.
Mauro, supra, 39 Cal.4th at p. 322; Hagberg v. California Federal
Bank (2004) 32 Cal.4th 350, 360.) “The principal purpose of
[Civil Code] section 47[, subdivision (b),] is to afford litigants . . .
[citation] the utmost freedom of access to the courts without fear
of being harassed subsequently by derivative tort actions.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) The privilege
also “promotes the effectiveness of judicial proceedings by
encouraging attorneys to zealously protect their clients’
interests.” (Id. at p. 214.) “Finally, in immunizing participants
from liability for torts arising from communications made during
judicial proceedings, the law places upon litigants the burden of
exposing during trial the bias of witnesses and the falsity of
evidence, thereby enhancing the finality of judgments and
6
Civil Code section 47 provides in part: “A privileged
publication or broadcast is one made: [¶] . . . [¶] (b) In any
(1) legislative proceeding, (2) judicial proceeding, (3) in any other
official proceeding authorized by law, or (4) in the initiation or
course of any other proceeding authorized by law and reviewable
pursuant to Chapter 2 (commencing with Section 1084) of Title 1
of Part 3 of the Code of Civil Procedure, except as follows . . . .”
16
avoiding an unending roundelay of litigation, an evil far worse
than an occasional unfair result.” (Ibid.; accord, Flatley, at
p. 322.) “To further these purposes, the privilege has been
broadly applied.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th
948, 955; see Rubin v. Green (1993) 4 Cal.4th 1187, 1193
[“communications with ‘some relation’ to judicial proceedings” are
“absolutely immune from tort liability”].)
“The usual formulation [of the litigation] privilege [is that]
the privilege applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that have some connection or logical relation to the action.”
(Silberg v. Anderson, supra, 50 Cal.3d at p. 212; see Adams v.
Superior Court (1992) 2 Cal.App.4th 521, 529 [litigation privilege
bars cause of action “provided that there is some reasonable
connection between the act claimed to be privileged and the
legitimate objects of the lawsuit in which that act took place”].)
“The litigation privilege is absolute; it applies, if at all, regardless
whether the communication was made with malice or the intent
to harm.” “If there is no dispute as to the operative facts, the
applicability of the litigation privilege is a question of law.
[Citation.] Any doubt about whether the privilege applies is
resolved in favor of applying it.” (Kashian v. Harriman (2002)
98 Cal.App.4th 892, 913; accord, Finton Construction, supra,
238 Cal.App.4th at p. 212.)
Weischadle contends the court erred in concluding all her
claims were barred by the litigation privilege. Relying on Civil
Code section 47, subdivision (b)(2), which excludes from the
protection of the privilege “any communication made in
furtherance of an act of intentional destruction undertaken for
17
the purpose of depriving a party to litigation of the use of that
evidence,” Weischadle asserts the Charboneau defendants
intentionally destroyed the surveillance footage. However, she
provided no evidence to support that claim. At most, Weischadle
posited the airport officials must have known about the accident
because she reported it on the day it occurred to TSA personnel
who took her name and telephone number. Accordingly, a trier of
fact could infer the City’s explanation for failing to preserve the
surveillance footage—that it did not know about the accident
because she did not report it in a timely manner—was false.
Even if that analysis permitted an inference of intentional
spoliation of evidence by the City prior to trial, Weischadle
submitted nothing to indicate the Charboneau defendants
represented the City at the time the surveillance footage was lost,
let alone knew about, advised or otherwise participated in the
purported spoliation. Neither Weischadle’s allegations in her
complaint nor the statements in her declaration, unsupported by
personal knowledge, are sufficient to support an inference the
Charboneau defendants engaged in any conduct that would come
within the exception to the litigation privilege. (See Monster
Energy Co. v. Schechter, supra, 7 Cal.5th at p. 795 [while we
must resolve all conflicts and inferences with respect to the
evidence in the anti-SLAPP context in favor of plaintiff,
“speculative inferences not supported by the evidence proffered
may not be considered”].)
4. Weischadle Failed To Demonstrate Her Claims Against
the City Had Minimal Merit
Weischadle contends she demonstrated minimal merit as to
her claims against the City, once again arguing that Civil Code
section 47, subdivision (b)(2), prevents the City from claiming its
18
intentional and bad faith spoliation of evidence, among other
evidence tampering, was protected by the litigation privilege.
However, the court did not rely on the litigation privilege to
conclude Weischadle had not carried her burden. Rather, it
found Weischadle had provided no admissible evidence she
submitted a government claim, a necessary prerequisite for a tort
claim against the City. (See Gov. Code, § 945.4; Rubenstein v.
Doe No. 1 (2017) 3 Cal.5th 903, 906 [“[c]ompliance with the claim
requirement is a condition precedent to suing the public entity”].)
Weischadle challenges this aspect of the court’s ruling,
pointing to her exhibit 38 “notice of claim,” dated March 19, 2020,
a little less than two weeks before she filed the case at bar. The
court excluded that exhibit for lack of authentication. Although
Weischadle asserted in the trial court she would authenticate her
exhibits during discovery, she provided no information as to how
she intended to cure the defect or, at least as to exhibit 38, why
additional discovery was necessary for her to authenticate her
7
own notice of claim. Weischadle’s reliance in her appellate brief
on California Rules of Court, rule 8.124(g), to cure the
8
evidentiary defect is misplaced.
7
While the party opposing a special motion to strike may
rely on potentially admissible evidence even though not
presented in admissible form (see Sweetwater Union High School
Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 949), if the
moving party objects, it is the responsibility of the opposing party
to cure the evidentiary defect or to demonstrate it is curable.
(Ibid.) Weischadle failed to do either.
8
California Rules of Court, rule 8.124(g), provides, “Filing an
appendix constitutes a representation that the appendix consists
of accurate copies of documents in the superior court file.”
19
Moreover, even if exhibit 38 constituted a proper
government claim under Government Code section 910 for
purposes of the City’s motion, Weischadle failed to demonstrate
any exceptions to the City’s statutory immunities. (See State
ex rel Dept. of California Highway Patrol v. Superior Court (2015)
60 Cal.4th 1002, 1009 [“a public entity is not liable [for an injury]
‘[e]xcept as otherwise provided by statute,’” citing Gov. Code,
§ 815, subd. (a)].) The City is absolutely immune from liability
for misrepresentations, whether negligent or intentional (Gov.
Code, § 818.8), necessarily defeating Weischadle’s claims the City
committed fraud when it represented in discovery responses the
surveillance footage had been destroyed as a matter of airport
policy or told her it did not know the identities of the TSA
personnel. (See Finch Aerospace Corp. v. City of San Diego (2017)
8 Cal.App.5th 1248, 1252-1253 [public entity immunized under
Government Code section 818.8 for causes of action for fraud and
deceit, including fraudulent concealment; while public employee
may be liable for fraud under certain circumstances under
Government Code section 822.2, public entity is absolutely
9
immune].) As for Weischadle’s claims unrelated to fraud or
Although this rule makes clear records submitted to the trial
court need not be independently authenticated in the appellate
court, Weischadle’s authentication failure occurred in the trial
court.
9
Weischadle’s spoliation claim also fails because there is no
tort liability for spoliation of evidence when, as here, the victim
learns about the spoliation prior to trial. (See Cedars-Sinai
Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17-18 [“[w]e
hold that there is no tort remedy for the intentional spoliation of
evidence by a party to the cause of action to which the spoliated
20
deceit (negligence, defamation and intentional infliction of
emotional distress), although Government Code section 815.4
allows liability to be imposed on a public entity for the tortious
acts of independent contractors, as discussed Weischadle
provided no evidence the Charboneau defendants committed any
tortious acts.
5. The Court Did Not Err in Granting the City’s and the
Charboneau Defendants’ Motions for Attorney Fees
Subject to certain exceptions not pertinent here, a
prevailing defendant on a special motion to strike is entitled to
recover his or her attorney’s fees and costs. (§ 425.16,
10
subd. (c)(1).) Weischadle’s challenge to the court’s attorney fee
orders is based entirely on her contention the court erred in
granting the special motions to strike. In light of our holding the
court did not err in granting those motions, we similarly reject
Weischadle’s challenge to the attorney fee orders.
evidence is relevant, in cases in which, as here, the spoliation
victim knows or should have known of the alleged spoliation
before the trial or other decision on the merits of the underlying
action”].)
10
When, as here, the challenge to the court’s ruling is
directed to the statutory entitlement to attorney fees, and not the
amount, our review of that legal issue is de novo. (Monster
Energy Co. v. Schechter, supra, 7 Cal.5th at p. 788; Ellis Law
Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014)
230 Cal.App.4th 244, 252-253.)
21
DISPOSITION
The trial court’s orders granting the City’s and the
Charboneau defendants’ special motions to strike and the orders
awarding attorney fees are affirmed. The City and the
Charboneau defendants are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.

WISE, J.

Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
22