San Francisco Federal Credit Union v. Fielding CA1/1

Filed 8/21/23 San Francisco Federal Credit Union v. Fielding CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SAN FRANCISCO FEDERAL
CREDIT UNION,
Plaintiff and Appellant, A163729
v. (Contra Costa County
RODNEY FIELDING, Super. Ct. No. C2100811)
Defendant and Respondent.
Respondent Rodney Fielding posted claims on Facebook that his former
employer, appellant San Francisco Federal Credit Union (the Credit Union),
failed to take adequate measures to protect its employees and members from
the risks of the COVID-19 pandemic. In response, the Credit Union sued
Fielding for defamation and trade libel. The Credit Union now appeals from
an order granting Fielding’s anti-SLAPP motion to strike those claims. (See
Code Civ. Proc., § 425.16.)1
We conclude that the trial court should have denied Fielding’s motion
in part because the Credit Union presented sufficient prima facie evidence to
establish the probability it would prevail on its defamation claim.
“SLAPP” stands for “strategic lawsuit against public participation.”
1
(Code Civ. Proc., § 425.18.) All statutory references are to the Code of Civil
Procedure unless otherwise specified.
1
Consequently, we reverse and direct the trial court to enter an order denying
the motion to strike as to the Credit Union’s defamation claim.2
I. BACKGROUND
The Credit Union is a member-owned credit union that serves members
in San Francisco and in the surrounding communities. Fielding worked for
the Credit Union as an information security engineer from November 2017
until July 2020, a few months after the City and County of San Francisco
declared a lockdown for businesses and residents due to the COVID-19
pandemic. As an essential business, the Credit Union continued to operate
and conduct business during the pandemic.
A. Fielding’s Facebook Post
In March 2021, several months after his termination, Fielding made a
Facebook post in which he said that he had “received this video/post from an
unknown source which took place at a former employer of mine today.” The
post included a picture of a poster that depicted a drawing of a person’s face
and which stated, “If there’s one thing here that is always dependable, it’s
that your lives are always EXPENDABLE” and “Covid Who? Warn the staff?
That 3 employees tested positive. NAH.” The evidence indicates that another
former employee of the Credit Union, Ryan Alcon, used the poster during his
protest at a branch of the Credit Union where he criticized the Credit Union’s
2
The Credit Union purported to assert a cause of action for “declaratory
and preliminary and permanent injunctive relief.” However, declaratory and
injunctive relief are equitable remedies and not causes of action. (See Roberts
v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618.) The anti-
SLAPP statute applies only to “causes of action.” (§ 425.16, subd. (b)(1).)
Fielding agrees that the Credit Union’s declaratory relief claim is “tethered
to” its defamation claim. Because we conclude that the Credit Union met its
burden to show a probability of prevailing on its defamation claim, as we
explain below, we also conclude that there is no basis to strike the
declaratory and injunctive relief allegations from the complaint.
2
handling of a recent outbreak of COVID-19 among its employees. The
drawing on the poster purported to depict the Credit Union’s CEO, Jonathan
Oliver (Oliver).
Fielding’s Facebook post continued, “Recently 3 more employees have
tested positive for COVID-19 and [the former employer] ha[s] done nothing
about it. Sadly [sic] this is not the first time this has happened there either.
The CEO of the organization refuses to take appropriate precautions to
protect the employees and members.” The post discussed past examples of
the Credit Union’s alleged failure to take adequate COVID-19 precautions.
First, Fielding asserted that the CEO had refused to implement a “Pandemic
plan” that Fielding had written prior to the COVID-19 pandemic. Fielding
also claimed that although a “few” employees were allowed to work from
home for about two months, “employees were required to come into the office
even though we have remote capabilities.” He further asserted that “[o]ther
infections at the branches went unreported and un treated [sic],” that
“inquiries from the SF Department of Public Health have gone unanswered
by the CEO,” and that “[the CEO] clearly cares more about his own pockets
and bonuses than he does about his employees that actually do the work.” He
further claimed that the “CEO is also very selective as to what he tells the
Board of Directors” and that he (Oliver) “gives them false information to keep
them at bay.”
Fielding concluded his post by asking, “What is it going to take for [the
CEO] to do the right thing? God forbid an employee (or their family member)
dies from COVID-19 because it was brought home from this place. This is one
of the worst places I have ever worked and one of the worst CEO’s [sic] I have
EVER dealt with.” Following this last assertion, Fielding inserted a series of
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three “angry” or frowning emojis, and then noted in parentheses that the
“[v]ideo [had been] [r]emoved to protect the innocent.”
Fielding did not expressly name the Credit Union or Oliver in his post.
However, he “tagged” the Credit Union at the end of the post, as well as a
local news organization, the San Francisco Department of Public Health, and
the office of San Francisco’s Mayor, and he set his location for the post as the
Credit Union.
B. The Credit Union’s Lawsuit and Fielding’s Anti-SLAPP Motion
A month later, the Credit Union sued Fielding for defamation, trade
libel, and declaratory and injunctive relief.3 The complaint alleged that
Fielding negligently published false, unprivileged, and disparaging
statements about the Credit Union based on Fielding’s Facebook post and the
picture attached to it.
After Fielding filed an answer to the complaint, he promptly brought a
special motion to strike the complaint under California’s anti-SLAPP statute.
Fielding argued that his Facebook post constituted protected activity under
section 425.16, because it was made in a public forum and was directly
related to issues of public interest—the COVID-19 pandemic and the Credit
Union’s “disregard” for the health and safety of its employees and members
and of the community. He further asserted that the Credit Union could not
establish a probability of prevailing on the merits of its claims because the
allegedly defamatory statements constituted nonactionable opinions or,
alternatively, were true.
3 The complaint also names Jeremiah Mosely as a defendant, but this
appeal concerns the trial court’s granting of the anti-SLAPP motion brought
by defendant Fielding.
4
In opposition, the Credit Union argued that the statements in
Fielding’s post contained provably false statements of fact and that the
statements were, in fact, false. The Credit Union supported its opposition
with declarations from a number of individuals, including its human
resources manager discussing the precautionary measures the Credit Union
took in response to the pandemic, including contact tracing and reporting
confirmed COVID-19 cases to all employees who were potentially exposed to
the infected person. Oliver also filed a declaration in which he stated that he
had “never knowingly provided false, inaccurate or misleading information to
the Board or concealed information [from them].”
The court granted Fielding’s special motion to strike. The court first
found that Fielding had met his burden of showing that the complaint arose
from protected activity, as his Facebook post was “aimed at the issue of
containing coronavirus spread[,]” which was a matter that interests not only
“a portion of the public, but everyone who is at risk of infection.” The court
next found that the Credit Union failed to establish a probability of
prevailing on the falsity and fault elements of its defamation claim. As to
falsity, the court found that “[t]o the extent that the message is not opinion,
the facts are largely uncontradicted.” And it found that the Credit Union
presented no evidence that Fielding failed to use reasonable care to
determine the truth or falsity of his statements. The court further concluded
that while the Credit Union had not separately addressed the trade libel
claim, it had failed to satisfy its burden to show a probability of prevailing on
that claim for the same reasons described in the court’s analysis of the
defamation claim. Finally, the court found that the Credit Union could not
prevail on its claim for declaratory and injunctive relief because that claim
was based on its other claims.
5
The Credit Union appeals from the order granting Fielding’s anti-
SLAPP motion.
II. DISCUSSION
A. Standard of Review
The anti-SLAPP statute allows a defendant to move for early dismissal
of claims that are designed to chill the exercise of certain speech and
petitioning activity protected by the state or federal constitution. (Siam v.
Kizilbash (2005) 130 Cal.App.4th 1563, 1568.) A claim based on a
defendant’s constitutionally protected acts is subject to an anti-SLAPP
motion to strike if the conduct is “in connection with a public issue.”
(§ 425.16, subd. (b)(1).) Subdivision (e) of section 425.16 enumerates four
categories of conduct deemed “in connection with a public issue.” (§ 425.16,
subd. (e).) Fielding argues the third of these categories applies, as the
defamation claim targets statements “made in . . . a public forum in
connection with an issue of public interest . . . .” (§ 425.16, subd. (e)(3).) He
also briefly contends that his Facebook post falls within the fourth category—
“conduct in furtherance of the exercise of [a] constitutional right . . . in
connection with a public issue or an issue of public interest” (§ 425.16, subd.
(e)(4))—though his arguments focus on subdivision (e)(3) of section 425.16.
The trial court engages in a two-step process to determine whether to
grant an anti-SLAPP motion. (City of Cotati v. Cashman (2002) 29 Cal.4th
69, 76.) First, the court decides whether a defendant has made a threshold
showing that the challenged cause of action “aris[es] from” activity the
statute protects. (Ibid.) If the defendant makes this threshold showing, the
court must then determine whether the plaintiff has demonstrated a
probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th
6
82, 88.) We review de novo the granting of an anti-SLAPP motion. (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
B. The Credit Union’s Lawsuit Arises out of Protected Activity
The Credit Union does not seriously dispute that its claims arise from
Fielding’s Facebook post; the parties dispute only whether the post
constitutes protected speech under the anti-SLAPP statute. (Park v. Board of
Trustees of California State University, supra, 2 Cal.5th at p. 1062 [“A claim
arises from protected activity when that activity underlies or forms the basis
for the claim”].) Fielding argues his Facebook post constitutes protected
activity under section 425.16 because it was made in a public forum in
connection with matters of public interest—the COVID-19 pandemic and
issues “related to a credit union.” The Credit Union contends, however, that
Fielding’s post does not automatically become one of “public interest” by its
publication in a public forum, and that statements arising from private
workplace disputes are not matters of public interest. Fielding has the better
argument, as subdivision (e)(3) of section 425.16 applies to his post based on
its connection to the public’s interest in preventing the spread of COVID-19
within the community the Credit Union served.
There appears to be no dispute that Fielding’s Facebook post was
“made in a place open to the public or a public forum,” thus satisfying the
initial requirement of section 425.16, subdivision (e)(3). Social media
websites such as Facebook are public forums under the statute. (Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 199.) We thus focus on whether
Fielding’s Facebook post was made “in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e)(4).)
“Section 425.16 does not define ‘public interest,’ but its preamble states
that its provisions ‘shall be construed broadly’ to safeguard ‘the valid exercise
7
of the constitutional rights of freedom of speech and petition for the redress of
grievances.’ ” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
1039.) Despite the absence of a statutory definition, courts have concluded
that speech on an issue of public interest can concern “a person or entity in
the public eye [citations], conduct that could directly affect a large number of
people beyond the direct participants [citations], or a topic of widespread,
public interest [citations].” (Rivero v. American Federation of State, County
and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924;
Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110
Cal.App.4th 26, 33.) “[T]he issue need not be ‘significant’ to be protected by
the anti-SLAPP statute—it is enough that it is one in which the public takes
an interest.” (Nygard, Inc. v. Uusi-Kerttula, at p. 1042.)
The Credit Union is not in the public eye, and there is no showing that
its COVID-19 measures are, in and of themselves, a topic of widespread
public interest. Nonetheless, information about a business’s practices may
constitute protected speech, at least when it could affect a large number of
persons. (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898–899
[statements on website about business’s unethical practices constituted
consumer protection information, and thus were a matter of public interest];
Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 [development of a mall,
“with potential environmental effects such as increased traffic and impaction
on natural drainage, was clearly a matter of public interest”].) Whether such
speech is protected often turns on whether the focus of the speech concerns
matters that go beyond the speaker’s particular interactions with the
business. (See Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624,
634–636 [collecting consumer protection cases and concluding that the
defendant’s statements were not protected because they “relate only to one
8
transaction” with the plaintiff, and their purpose was “simply to gather ‘
“ammunition for another round” ’ ” of private controversy].)
In Wong v. Jing (2010) 189 Cal.App.4th 1354, for example, the plaintiff,
a pediatric dentist, filed a libel action against the defendants for their Yelp
review, in which they claimed that the plaintiff used “laughing gas” on their
son and filled his cavities with silver amalgam containing mercury. (Id. at
pp. 1359, 1361.) On appeal from the trial court’s denial of the defendants’
anti-SLAPP motion, the appellate court concluded that the review involved a
public issue, holding that “consumer information that goes beyond a
particular interaction between the parties and implicates matters of public
concern that can affect many people is generally deemed to involve an issue
of public interest.” (Id. at pp. 1363, 1366–1367.) Because the posting
“implicitly dealt with the more general issues of the use of nitrous oxide and
silver amalgam, implied that those substances should not be used in treating
children, and informed readers that other dentists do not use them[,]” the
court found that “the posting went beyond the parochial issues concerning a
private dispute about particular dental appointments.” (Id. at p. 1367.)
Similarly, speech in connection with a public issue includes attempts to
inform the public or governing bodies about safety issues that could affect a
large segment of the public. (See Dowling v. Zimmerman (2001) 85
Cal.App.4th 1400, 1420 [letter advising the governing body of a large
condominium complex about one owner’s alleged campaign of harassment
against his tenant, which created nuisance and safety issues that could affect
the other residents of the complex, was protected speech]; Bishop v. The
Bishop’s School (2022) 86 Cal.App.5th 893, 905, 908 [statement made to
newspaper regarding teacher’s termination was protected speech: “The
content of the speech and conduct here—student safety and well-being—
9
implicates a matter that affects a large number of people beyond the direct
participants, including all current and former students at the School, their
family members, and the School’s staff”].)
Here, the statements made by Fielding were not simply a report of a
private workplace dispute, of interest only to him or to a small number of
people. (See Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132–1133 [“a
matter of concern to the speaker and a relatively small, specific audience is
not a matter of public interest”].) Rather, Fielding’s statements were a
warning that the Credit Union’s actions (or lack thereof) posed a threat to the
well-being of its employees and members and their families. Fielding made
those statements during the COVID-19 pandemic, when the state required
employers to take certain precautions to protect employees and the public
from the risks of COVID-19. A business operating unsafely during the
pandemic could sicken, and thus affect, many members of the public.
Fielding’s statements, therefore, concerned an issue of public concern.
The Credit Union argues that even assuming Fielding’s statements
implicate an issue of public interest, he cannot establish the requisite
“functional relationship” between the speech and the issue of public interest
under FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn),
considering the timing and tone of his Facebook post.4 In FilmOn, our high
4 Fielding argues that the FilmOn test does not apply to subdivision
(e)(3) of section 425.16 for statements made in a public forum in connection
with a public issue, because the FilmOn court was construing subdivision
(e)(4) of section 425.16, which protects “conduct in furtherance of the exercise
of [a] constitutional right . . . in connection with a public issue or an issue of
public interest . . . .” (See FilmOn, supra, 7 Cal.5th at p. 140.) At least one
appellate court has concluded differently: “we see no reason why the same
analysis should not apply when determining whether a statement was made
‘in connection with’ a public issue or a matter of public interest for purposes
10
court construed subdivision (e)(4) of section 425.16, the so-called “catchall”
provision of the anti-SLAPP statute, clarifying how the context of a
challenged statement informs our analysis of whether it is “ ‘in connection
with a public issue.’ ” (FilmOn, at p. 140 [quoting § 425.16, subd. (e)(4)].)
The court established a two-part inquiry for determining whether speech was
made “ ‘in furtherance of’ ” free speech “ ‘in connection with a public issue or
an issue of public interest.’ ” (FilmOn, at pp. 148–151.) First, looking at the
content of a challenged statement, courts must determine whether the
statement implicates a public issue or an issue of public interest. (Id. at pp.
150–151.) Second, where an issue is of public interest, courts must consider
the “functional relationship” between the challenged speech and public
conversation about the matter. (Id. at pp. 149–150.) “ ‘[I]t is not enough that
the statement refer to a subject of widespread public interest; the statement
must in some manner itself contribute to the public debate.’ ” (Id. at p. 150.)
At this stage of the analysis, courts must consider context, including the
identity of the speaker, the audience, and the apparent purpose of the speech.
(Id. at pp. 142–144, 152.)
The FilmOn court emphasized that what it means to “ ‘contribute to the
public debate’ ” may differ based on the topic of contention. (FilmOn, supra,
7 Cal.5th at pp. 150–151.) “We are not concerned with the social utility of the
speech at issue, or the degree to which it propelled the conversation in any
particular direction; rather, we examine whether a defendant—through
of subdivision (e)(3) of section 425.16.” (See Bernstein v. LaBeouf (2019) 43
Cal.App.5th 15, 23, fn. 5.) We similarly do not see why FilmOn has no
bearing on this case, as the FilmOn court was concerned with the meaning of
the phrase “ ‘in connection with an issue of public interest,’ ” a phrase that
appears in both subdivisions. In any event, the outcome of this appeal would
be the same regardless of whether we apply the FilmOn test to subdivision
(e)(3) of section 425.16.
11
public or private speech or conduct—participated in, or furthered, the
discourse that makes an issue one of public interest.” (Id. at p. 151.) As an
example, the court cited Cross v. Cooper (2011) 197 Cal.App.4th 357.
(FilmOn, at p. 151.) There, a landlord filed an action against his tenants
following a failed sale of his house, based in part on allegations that the
tenants disclosed, or threatened to disclose, information that a registered sex
offender lived nearby. (Cross v. Cooper, at p. 364.) The court found that
preventing child abuse and protecting children from sexual predators were
issues of widespread public interest, and that the tenants’ disclosure was
“directly related” to those issues because it “served th[e] interests” of
preventing child abuse and protecting children by warning prospective
buyers of the potential risk to children posed by a registered sex offender who
lived nearby. (Id. at p. 375.)
Here, considering the audience and forum for the challenged
statements, we have no trouble concluding that Fielding’s post was directly
related to an issue of public interest because it alerted the public of the
potential health risk to many in the San Francisco community posed by the
Credit Union’s inadequate COVID-19 measures. As previously discussed,
Fielding published his post in a public forum. He also “tagged” in the post
local public officials and agencies, including the San Francisco Department of
Public Health, and a news organization. This context suggests his purpose in
publishing the post was to prompt local agencies to investigate the Credit
Union for its COVID-19 response and to alert the public to a health and
safety issue that could affect them. (See Hicks v. Richard (2019) 39
Cal.App.5th 1167, 1177 [finding that where a letter was sent to authorities
outside the school, it “was intended to prompt these outside authorities to
investigate and act on the allegations contained within it”]; Yang v. Tenet
12
Healthcare Inc. (2020) 48 Cal.App.5th 939, 948 [finding that defendants’
allegedly defamatory statements “further[ed] the public discourse” regarding
the qualifications, competence and professional ethics of a licensed physician
where they “were communicated to the public, not just to discrete doctors or
hospital staff members”].)
Contrary to the Credit Union’s contention, the timing of the post also
supports a connection between the statements and the topic of the spread of
COVID-19 within a community. Fielding published his Facebook post shortly
after an outbreak of COVID-19 had allegedly occurred among the Credit
Union’s employees. Although the post discusses the Credit Union’s past
actions in responding to the COVID-19 pandemic, and, as the Credit Union
itself points out, Fielding was terminated several months before he made his
post on Facebook, the post suggests that the recent outbreak was part of a
pattern of the Credit Union ignoring the threat of COVID-19 to the well-
being of its employees and client base. Thus, the timing of the post coupled
with its purpose—to make the public aware of the Credit Union’s inadequate
COVID-19 measures immediately after a recent outbreak among the Credit
Union’s employees—demonstrates that the statements were sufficiently
connected to an issue of public interest: the spread of a life-threatening
contagious disease.
The Credit Union also claims that the tone of the post undermines any
“altruistic” purpose or connection to the public issue of COVID, citing the
post’s concluding remark—“[t]his is one of the worst places I have ever
worked and one of the worst CEO’s [sic] I have EVER dealt with.” The Credit
union relies on Weinberg v. Feisel, supra, 110 Cal.App.4th 1122 for the
proposition that “the assertion of a broad and amorphous public interest is
not sufficient.” It is true that it is not enough to draw a connection between
13
the challenged speech and some “ ‘broad and amorphous public interest.’ ”
(Id. at pp. 1132, 1570; see Dual Diagnostics Treatment Center, Inc. v. Buschel
(2016) 6 Cal.App.5th 1098, 1106, disagreed with on another ground in Yang
v. Tenet Healthcare, Inc. (2020) 48 Cal.App.5th 939, 947 [“Almost any
statement, no matter how specific, can be construed to relate to some broader
topic”].) But the issue of public interest addressed by Fielding’s Facebook
post—a business’s failure to take adequate precautions against the spread of
a life-threatening contagious disease—was hardly abstract or amorphous.
This is also not a case where the challenged speech is not focused on
advancing the public interest but rather is “a mere effort ‘to gather
ammunition for another round of [private] controversy . . . .’ ” (Weinberg v.
Feisel, at pp. 1132–1133.) That Fielding concluded his post with what
appears to be his personal opinion of the Credit Union and Oliver does not
transform his post into one about a private dispute, because the post’s overall
focus is aimed squarely at the Credit Union’s COVID-19 measures and the
risks they posed to employees and members. (See Balla v. Hall (2021) 59
Cal.App.5th 652, 674, disagreed with on another ground in Park v. Nazari
(2023) 93 Cal.App.5th 1099, 1108, fn. 5 [finding that e-mail concerned a
public issue, “despite isolated statements that touched on other subjects”];
Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1249 [“ ‘speech is rarely “about” any
single issue’ ”].)
We conclude, therefore, that the Credit Union’s claims arose from
statements made in connection with an issue in the public interest, and that
Fielding, therefore, met the burden imposed on him by section 425.16.5
5 In coming to this conclusion, we have not relied on the factual
assertions in Fielding’s brief regarding the COVID-19 pandemic that are
unsupported by anything in the record.
14
C. Probability of Prevailing
As Fielding met his initial burden, the burden shifted to the Credit
Union to establish a probability that it would prevail on its claims. The
Credit Union does not separately address its trade libel claim, and thus we
deem that claim abandoned, and focus solely on the Credit Union’s
defamation claim. (See McGettigan v. Bay Area Rapid Transit Dist. (1997) 57
Cal.App.4th 1011, 1016 & fn. 4.)
The second step of the anti-SLAPP analysis follows a “summary-
judgment-like procedure.” (Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal.4th 180, 192.) 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).) Looking at those affidavits, “[w]e do not weigh
credibility, nor do we evaluate the weight of the evidence. Instead, we accept
as true all evidence favorable to the plaintiff and assess the defendant’s
evidence only to determine if it defeats the plaintiff’s submission as a matter
of law.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699–700.)
“ ‘Defamation is the intentional publication of a statement of fact that
is false, unprivileged, and has a natural tendency to injure or that causes
special damage.’ ” (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1155.)
The plaintiff in a defamation action “bears the burden of proving that the
challenged statement was false.” (Vogel v. Felice (2005) 127 Cal.App.4th
1006, 1021.) A private party plaintiff must also establish, at minimum, that
the defendant failed to use reasonable care to determine the falsity of the
statement. (Carney v. Santa Cruz Women Against Rape (1990) 221
Cal.App.3d 1009, 1015.)
15
The parties disagree on whether the Credit Union has established a
probability of prevailing on three elements of its defamation claim—provably
false assertions of fact, falsity, and fault.6 We consider each element in turn,
concluding that the Credit Union has met its minimal burden of a “prima
facie showing sufficient to sustain a favorable judgment.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 384–385.)
1. Provably False Assertions of Fact
Fielding argues that the Credit Union has not met its burden on the
second step of the anti-SLAPP analysis because the statements in his post
mainly consist of nonactionable opinions. We disagree.
Unlike mere opinions, a statement that suggests or implies a false
assertion of fact is actionable. (Balla v. Hall, supra, 59 Cal.App.5th at p. 677;
Issa v. Applegate (2019) 31 Cal.App.5th 689, 702.) The “dispositive question”
in such a case is “whether a reasonable fact finder could conclude the
published statement declares or implies a provably false assertion of fact.”
(Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) This is
ordinarily a question of law for the court, “unless the statement is susceptible
of both an innocent and a libelous meaning, in which case the jury must
decide how the statement was understood.” (Ibid.)
In determining whether the disputed statement communicates or
implies a provably false assertion of fact, we look at the totality of the
circumstances, looking first to the language of the statement and whether it
6 The Credit Union also contends that Fielding’s statements have the
natural tendency to injure. Fielding does not appear to dispute this. “A
corporation can be libeled by statements which injure its business
reputation” (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377,
381), and “[a] corporation’s reputation as an employer is . . . an important
aspect of its business reputation” (Di Giorgio Fruit Corp. v. AFL-CIO (1963)
215 Cal.App.2d 560, 571).
16
was understood in a defamatory sense, and then considering the context in
which the statement was made. (Franklin v. Dynamic Details, Inc., supra,
116 Cal.App.4th at p. 385.) We also consider “whether the reasonable or
‘average’ reader would so interpret the material. [Citations.] The ‘average
reader’ is a reasonable member of the audience to which the material was
originally addressed.” (Couch v. San Juan Unified School Dist. (1995) 33
Cal.App.4th 1491, 1500.)
Looking at the totality of the circumstances in this case, we conclude
that Fielding’s post was “reasonably susceptible of an interpretation which
implies a provably false assertion of actual fact.” (Kahn v. Bower (1991) 232
Cal.App.3d 1599, 1608.)
First, we look at Fielding’s language. Although his post arguably
employs some hyperbolic language indicative of an opinion by, for example,
describing Oliver as the “worst” CEO and claiming he “cares more about his
own pockets . . . than he does about his employees,” Fielding also supported
that language with facts. (See Balla v. Hall, supra, 59 Cal.App.5th at pp.
681–682 [“But the insults used by Hall (e.g., a ‘fraud’) were in reference to the
specific deal he alleged existed among plaintiffs; they were not the gist of his
statements”].) He asserted that Oliver refused to implement a pandemic plan
that Fielding wrote, that the Credit Union did “nothing about” employees
testing positive for COVID-19, and that “inquiries” from the San Francisco
Public Health Department “have gone unanswered” by Oliver. He further
claimed that Oliver made misrepresentations to or concealed information
from the Credit Union’s Board. By providing these facts to support his claims
about the Credit Union and Oliver, Fielding made comments that could
reasonably be considered as asserting or implying provably false assertions of
fact, even if some details are missing. (Bently Reserve LP v. Papaliolios
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(2013) 218 Cal.App.4th 418, 428 (Bently); see also Milkovich v. Lorain
Journal Co. (1990) 497 U.S. 1, 18–19 [“Even if the speaker states the facts
upon which he bases his opinion, if those facts are either incorrect or
incomplete, or if his assessment of them is erroneous, the statement may still
imply a false assertion of facts”].)
We next turn to the broader context of Fielding’s statements—posting
on social media. He points out that “online discussions may look more like a
vehicle for emotional catharsis than a forum for the rapid exchange of
information and ideas.” (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154,
1163.) However, the mere fact that speech is published on an online forum
does not necessarily make it nonactionable opinion.
In Bently, supra, 218 Cal.App.4th 418, the defendant posted a negative
review of an apartment building to Yelp, a website that collects consumer
reviews of businesses. (Id. at p. 423.) On appeal from an order denying the
defendant’s anti-SLAPP motion, the defendant argued that his Yelp review
was nonactionable opinion, pointing to the fact that he posted it on the
internet under a pseudonym. (Id. at pp. 425, 426, 429.) This court disagreed,
finding that although his review contained some epithets, it was “factually
specific and earnest” and contained “statements that could reasonably be
understood as conveying facts—each provable and each meant to be used by
prospective tenants to evaluate the Jones Building as a future residential
choice.” (Id. at p. 433.)
The Bently court contrasted the Yelp review with other anonymous
Internet posts found to constitute nonactionable opinions. (Bently, supra, 218
Cal.App.4th at pp. 429–431.) In those cases, the reviewing court found that
certain contextual factors—the posts’ lack of formality, poor grammar,
spelling, and “diatribe” nature, the generality or vagueness of the comments,
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and the name of the forum the defendant used—supported a conclusion that
the Internet postings were not actionable. (Ibid., citing Krinsky v. Doe 6,
supra, 159 Cal.App.4th 1154, Summit Bank v. Rogers (2012) 206 Cal.App.4th
669 (Summit Bank), and Chaker v. Mateo (2012) 209 Cal.App.4th 1138,
1148.)
For example, in Summit Bank, relied on by Fielding, our colleagues in
Division 4 of this court found that a former bank employee’s posts about the
bank in a section of the Craigslist website entitled “ ‘Rants and Raves’ ”
contained nonactionable statements of opinion. (Summit Bank, supra, 206
Cal.App.4th at pp. 677, 696, 700.) The posts contained spelling errors, poor
grammar, and crude name-calling, asserting, among other things, that “[t]he
bitch CEO . . . thinks that the Bank is her personel [sic] Bank to do with it as
she pleases,” that the bank was a “problem Bank,” and that “[a]ll the
customer [sic] were left high and dry.” (Id. at pp. 679, 698.) In concluding
the statements were nonactionable opinions, the court explained that the
name of the electronic bulletin board should have “predisposed [readers] . . .
to view [the former employee’s statements] with a certain amount of
skepticism,” and to understand they likely would “present one-sided
viewpoints rather than assertions of provable facts.” (Id. at p. 696.) The
court additionally observed that the poor grammar and spelling used in the
posts, coupled with the defendant’s “colloquial epithets” strongly suggested
he was communicating “his own sophisticated, florid opinions,” which were
not “to be understood as assertions of fact.” (Id. at p. 699.)
This case is closer to Bently than to Summit Bank, as the context and
language employed in Fielding’s post are of a different character than that in
the posts at issue in Summit Bank. To begin with, Fielding published the
post on a social networking website “that enables . . . users worldwide to
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connect and share information that is important to them”(Cross v. Facebook,
Inc., supra, 14 Cal.App.5th at p. 195), rather than on the type of online
message board in which “readers expect to see strongly worded opinions
rather than objective facts” (Summit Bank, supra, 206 Cal.App.4th at p. 697).
And, like the post in Bently, Fielding’s post makes specific factual claims, as
opposed to the vague implications of fact being discussed in Summit Bank.
Although his post contains some hyperbole, as mentioned, it also contains
many statements that could reasonably be understood as conveying facts
meant to alert the public to the risk posed by the Credit Union’s allegedly
inadequate COVID-19 measures. That Fielding used his real name in his
post and “tagged” news organizations and public officials further supports a
conclusion that his post was meant to be taken as a serious assertion of fact.
Therefore, the statements in Fielding’s post, at a minimum, could be
reasonably construed as assertions of fact. We therefore turn to the falsity
element of the Credit Union’s defamation claim.
2. Falsity
The trial court found that the Credit Union failed to establish the
falsity element of its defamation claim because the overall “ ‘gist or sting’
here is that plaintiff was not doing enough to protect its employees from the
pandemic risks,” and the facts stated in the Facebook post “[were] largely
uncontradicted.” It is true that “substantial truth” is a defense. (Dickinson v.
Cosby, supra, 17 Cal.App.5th at p. 691.) “[T]he law does not require [the
defendant] to justify the literal truth of every word of the allegedly
defamatory content, nor must we parse each word ... to determine its
truthfulness. ‘It is sufficient if the defendant proves true the substance of the
charge, irrespective of slight inaccuracy in the details, “so long as the
imputation is substantially true so as to justify the ‘gist or sting’ of the
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remark.” [Citations.]’ [Citation.]” (Summit Bank, supra, 206 Cal.App.4th at
p. 697, italics omitted.)
“ ‘By the same token, not every word of an allegedly defamatory
publication has to be false and defamatory to sustain a libel action.’ ” (Bently,
supra, 218 Cal.App.4th at p. 434; see Masson v. New Yorker Magazine, Inc.
(1991) 501 U.S. 496, 510 [interpreting California law, the Court explained,
“ ‘[T]he test of libel is not quantitative; a single sentence may be the basis for
an action in libel even though buried in a much longer text’ ”].) “ ‘Put another
way, the statement is not considered false unless it “would have a different
effect on the mind of the reader from that which the pleaded truth would
have produced.” [Citations.]’ [Citation.].” (Hughes v. Hughes (2004) 122
Cal.App.4th 931, 936.) “If any material part be not proved true, the plaintiff
is entitled to damages in respect to that part.” (Shumate v. Johnson
Publishing Co. (1956) 139 Cal.App.2d 121, 132, italics added.)
Here, Fielding’s post asserted that the Credit Union ignored reports of
employees testing positive for COVID-19. He specifically claimed that three
employees had recently tested positive, and the Credit Union did “nothing
about it.” He further claimed that “[o]ther infections at the branches went
unreported and un treated [sic]” and that the Credit Union “refuse[d] to take
appropriate precautions.” However, the declaration of Maaike Jacobson, who
had been the Credit Union’s Human Resources Manager since before the
pandemic, asserted that all employees were instructed to contact Human
Resources upon learning about any potential exposure to COVID-19 or
positive case. According to Jacobson, the Credit Union received notice of its
first employee to test positive for COVID-19 in February 2021, several
months after Fielding was terminated. She stated that for each positive
COVID-19 case or potential exposure reported to Human Resources, the
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Credit Union conducted contact tracing within 24 hours, and “the employees
who were potentially exposed to COVID in their workplace were timely
notified by phone and email and provided instructions based upon the local
and state agencies’ health recommendations at the time” and were provided
“all pertinent details of the potential exposure . . . .” Additionally, after a
third employee tested positive for COVID-19, the Credit Union posted a
notice in “areas where employees who were not in close contact (and not
within the scope of those employees requiring notice) were nonetheless
notified.”
Given the details provided by Jacobson about the Credit Union’s
extensive efforts to respond to positive COVID-19 reports, we do not agree
that Fielding’s assertion that the Credit Union did “nothing” constitutes a
mere “slight inaccuracy.” (See Summit Bank v. Rogers, supra, 206
Cal.App.4th at p. 697.) On this basis alone the Credit Union succeeded in
carrying their minimal burden under the anti-SLAPP statute to establish the
probable merit of the falsity element of its defamation claim and to negate
Fielding’s defense of substantial truth. (See Wilbanks v. Wolk, supra, 121
Cal.App.4th at p. 905 [“the plaintiff need not produce evidence that he or she
can recover on every possible point urged”]; see also Bently, supra, 218
Cal.App.4th at p. 434 [plaintiff’s burden met by prima facie showing of facts
which, if accepted by trier of fact, would negate defendant’s defenses].)
The Credit Union also adduced evidence raising a triable issue that its
CEO, Oliver, was not “selective” in providing information to the Board of
Directors and did not give them “false information to keep them at bay,” as
Fielding asserted in his post. The only evidence Fielding presented regarding
this assertion is that he delivered reports to Oliver concerning “various
breaches of security,” and that the Chief Information Officer later informed
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Fielding that the reports presented to the Board were missing “pertinent
portions or not presented at all.” On the other hand, the Credit Union
presented evidence that Fielding gave his reports to the Chief Information
Officer, not to Oliver, and that the Chief Information Officer was not “privy to
private communications of the Board or fully apprised as to all information
presented to and considered by the Board or by the Executive Committee.”
Oliver also asserted in his declaration, “I have never concealed information
from the Board,” and “I have never knowingly provided false, inaccurate or
misleading information to the Board or concealed information to ‘keep them
at bay.’ ”
Accepting the Credit Union’s evidence as true, a trier of fact could
conclude that it would negate Fielding’s defense that its statements
regarding Oliver’s communications with the Board were substantially true.
(See Bently, supra, 218 Cal.App.4th at p. 434.) And considering the
seriousness of those accusations, we cannot conclude that the statements
would not “ ‘ “have a different effect on the mind of the reader from that
which the pleaded truth would have produced.” ’ ” (Issa v. Applegate, supra,
31 Cal.App.5th at p. 708.)
Similarly, Fielding’s post accused the Credit Union of ignoring
inquiries from the San Francisco Public Health Department. But Oliver’s
declaration shows the contrary, stating that on the same day the Credit
Union learned of a complaint submitted to the department, Oliver spoke with
a representative from the department, and the department “was satisfied”
with the Credit Union’s COVID-19 policies and procedures and “[n]o further
action was taken . . . .”
Given these triable issues in connection with the merits of the Credit
Union’s defamation claim, and the material nature of Fielding’s statements, a
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trier of fact might conclude his Facebook post was not substantially true.
(Hughes v. Hughes, supra, 122 Cal.App.4th at p. 937 [“whether a statement is
true or substantially true is normally considered to be a factual one”].) Thus,
we consider whether the Credit Union met its burden to establish a
probability of prevailing on the fault element of its defamation claim.
3. Fault
Liability for defamation cannot be imposed on a defendant without
fault. (Carney v. Santa Cruz Women Against Rape, supra, 221 Cal.App.3d at
p. 1015.) Our Supreme Court stated that negligence is the standard in
California for private party plaintiffs: “We decline to diverge from the near
unanimous authority that a private person need prove only negligence
(rather than malice) to recover for defamation.” (Brown v. Kelly Broadcasting
Co. (1989) 48 Cal.3d 711, 742; accord, Comedy III Productions, Inc. v. Gary
Saderup, Inc. (2001) 25 Cal.4th 387, 398 [“private figures need prove only
negligence”].) Thus, to recover for defamation, a private party plaintiff has
the burden of proving that the defendant “failed to use reasonable care to
determine the truth or falsity” of the defamatory statements.7 (Hecimovich v.
Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450,
470; see Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 448.)
7 In comparison, a public official or public figure, to recover for
defamation, must establish the defendant made the allegedly defamatory
statement with “malice in its constitutional sense ‘that is, with knowledge
that it was false or with reckless disregard of whether it was false or not.’ ”
(McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 114.) In this
case, there is no indication that the Credit Union is a public figure. (See id.
at p. 113 [a public figure is one who has either “ ‘achiev[ed] such pervasive
fame or notoriety that he becomes a public figure for all purposes and in all
contexts’ ” or has “ ‘voluntarily inject[ed] himself or is drawn into a particular
public controversy’ ”].)
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Mindful that the Credit Union’s burden is not high (Overstock.com, Inc.
v. Gradient Analytics, supra, 151 Cal.App.4th at p. 699), we conclude it made
a prima facie factual showing on the fault element of its defamation claim.
The Credit Union presented Jacobson’s declaration, which showed that
she “worked closely” with Oliver and other Human Resources personnel
regarding the Credit Union’s COVID-19 policies and procedures. As
previously discussed, Jacobson’s declaration showed that the COVID-19
procedures implemented by Human Resources were fairly extensive, and
included contact tracing and notifying all employees who were potentially
exposed to COVID-19-positive employees and visitors. Human Resources
communicated the Credit Union’s COVID-19 policies to employees through
email, through its internal webpage, and through notices posted in the
workplace, and employees were told to contact Human Resources upon
learning about any potential exposure to COVID-19 or positive case.
Additionally, Jacobson’s declaration detailed the Credit Union’s response to
specific reports of employees testing positive.
And Oliver’s declaration showed that Fielding did not attend Board or
Executive Committee meetings, that those meetings were closed and
confidential, that the Chief Information Officer, to whom Fielding reported,
was not privy to all information presented to the Board and the Executive
Committee, and that he (Oliver) never concealed information from the Board
or knowingly misrepresented information. Finally, as we have already
mentioned, his declaration is evidence that he, on behalf of the Credit Union,
promptly responded to a complaint submitted to the San Francisco Public
Health Department.
Jacobson’s and Oliver’s declarations, which we must accept as true,
were prima facie evidence that Fielding was negligent in publishing his
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Facebook post. This evidence tended to show Fielding knew about the Credit
Union’s COVID-19 policies and knew that its Human Resources department
would be the most reliable source regarding information about reported
positive cases of COVID-19 and the actions the Credit Union took in response
to those reports. It also tended to show that only certain people within the
company would likely be privy to all information conveyed to the Board and
to the public health department. The Credit Union’s evidence therefore
supports an inference that Fielding did not investigate many of his claims, or
at least that he did not conduct a reasonable investigation, because if he had
contacted the sources he should have known would likely have accurate and
complete information, he would have discovered information indicating that
he had no reasonable basis for making the claims contained in his post. In
other words, a reasonable jury could conclude that Fielding should have
expanded his investigation further, especially considering the seriousness of
his accusations. (See Widener v. Pacific Gas & Electric Co. (1977) 75
Cal.App.3d 415, 435, overruled on other grounds in McCoy v. Hearst Corp.
(1986) 42 Cal.3d 835, 846, fn. 9 [“the seriousness of the charge it was making
called for a thorough investigation, but the record reveals that little or no
investigation was conducted”]; Carney, supra, 221 Cal.App.3d at p. 1016, fn. 2
[one factor to consider is “the extent of damage to the plaintiff’s reputation if
the communication was false”].)
Moreover, the post itself suggests that Fielding did not have any
reasonable basis for the statement that the Credit Union did “nothing about”
three employees testing positive for COVID-19. It states that Fielding
received a video from an “unknown” source “which took place at a former
employer of mine today.” The picture attached to his post depicts a poster
stating, “Warn the staff? That 3 employees tested positive? NAH.” The
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record indicates that the video and the poster are both from another former
employee’s protest that took place at the Credit Union’s San Francisco
branch. Given that Fielding published his post the same day he received the
video from an “unknown source,” and the fact that his post makes a similar
claim as that in the poster, there is a reasonable inference that Fielding did
nothing further to investigate the claim before publishing it. A reasonable
jury could conclude that it was negligent for Fielding to rely on an
anonymous source (or another former employee) for the claim in his post
absent any meaningful investigation to corroborate the claim.
In sum, the record presents triable issues of fact with respect to the
elements of the Credit Union’s defamation cause of action. In light of its
minimal burden at this stage of the inquiry, we conclude that the Credit
Union demonstrated a probability of prevailing on its defamation claim.
III. CONCLUSION
The order granting Fielding’s special motion to strike is reversed in
part. On remand, the trial court is directed to enter an order denying the
motion to strike as to the Credit Union’s defamation claim. The order
denying Fielding’s motion to strike is affirmed as to the Credit Union’s trade
libel claim. Each side shall bear its own costs.
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BOWEN, J.
WE CONCUR:
MARGULIES, ACTING P.J.
BANKE, J.
A163729N

Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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