Chan v. United Screeners Assn. Local One

Filed 10/30/07 Chan v. United Screeners Assn. Local One CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

This appeal presents a claim that the trial court erred when it denied a motion to strike brought under Code of Civil Procedure section 425.16,^[1]and refused to dismiss a defamation action as a Strategic Lawsuit Against Public Participation (SLAPP suit). We affirm.

BACKGROUND

This case arises from a dispute between two unions over which would be the exclusive bargaining representative of some 1,100 security screeners at San Francisco International Airport (SFO) employed by Covenant Aviation Security (Covenant). Service Employees International Union Local 790 (Local 790) and a rival union, defendant United Screeners Association Local One (Local One) were opponents in a campaign to gain bargaining rights. In August 2003, Local One successfully petitioned for a National Labor Relations Board (NLRB) election and to disqualify Local 790 from that election. Local 790 nonetheless continued to lobby employees to vote no union rather than to ratify Local One and to instead support Local 790 through a card check procedure authorized by a San Francisco Card Check Ordinance that applies to city vendors.^[2]

Plaintiffs Gene Chan, Marcel-Emile Brock, Whitfield McTair, Ann Dinapoli and Jano Oscherwitz were members of Local 790s Screeners Organizing Screeners Squad, or SOS. Chan, Brock, McTair and Dinapoli are or were Covenant employees; Oscherwitz was a Local 790 organizer. As part of Local 790s fall 2004 campaign, plaintiffs distributed flyers and solicited Covenant employees to sign the recognition petition.

Local One responded. On October 18, 2004, it distributed a flyer (Flyer A) in employee break rooms. Flyer A featured a photograph of Chan, Estrella, Brock, McTair and an unidentified individual, whom it identified as Moe, Larry, Curly, CurlyJoe, Shemp, The Five Stooges of 790 Porno Movie Stars. It read: There is a rumor that screeners walking down Market Street in San Francisco saw Jano Oscherwitz (Lead Organizer for SEIU Local 790) and Ann Dinapoli going into a motel. They emerged two hours later. What is going [on] now? Is Jano leaving her new partner for Ann? The flyer also said there was a rumor that Chan, McTair, Brock and Estrella, Members of SOS now the SOB were going to Hollywood to make a Porno movie called The Five Stooges of 790 a Josie Mooney/Rex Spray production. Coming soon to a Porno Theater near you. Rated XXXX. Local One admits it created Flyer A to undermine the credibility of the SOS Squad.

Local One distributed two other flyers in the employee break rooms that personally attacked Local 790 supporters. Flyer B falsely stated, among other things, that there was a rumor that Gene Chan went to Harrahs Las Vegas, Nevada for 4 days after the rally. SEIU Local 790 paid for all food, drinks, hotel and airfare expenses and pocket money. Viva Las Vegas/Viva 790! Flyer C featured an altered photograph of Chan with a lightening bolt aimed at his head. The heading read, Exodus 20:16, Thou shall not bear false witness against thy neighbor. The text referred to Chan as an SEIU Lying Liar/CAS Snake in the grass and accused him of lying to his coworkers that Local 790 had forced Covenant to change its policy on documentation for sick leave.

Plaintiffs sued Local One, Valdes and Burke (collectively referred to as defendants or Local One) for defamation, invasion of privacy and related charges in October 2005. Defendants moved unsuccessfully to strike the complaint under section 425.16. The trial court concluded that defendants failed to show that the suit arose from activity protected by the anti-SLAPP statute, and that plaintiffs could not establish a reasonable probability of prevailing on the merits. Defendants filed a timely appeal.

DISCUSSION

I.The Anti-SLAPP Statute

Section 425.16 provides for the early dismissal of certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity. (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 102.) It provides: (b)(1) A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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. [] . . . []  (e) As used in this section, act in furtherance of a persons 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; (4) or 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. ( 425.16.) Section 425.16, subdivision (e), sets forth four categories of conduct to which the anti-SLAPP statute applies. The only way a defendant can make a sufficient threshold showing is to demonstrate that the conduct by which the plaintiff claims to have been injured falls within one of those four categories. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130.)

Consideration of an anti-SLAPP motion is 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. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. ( 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

We review the trial courts ruling on an anti-SLAPP motion independently, applying the de novo standard of review. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.) If the ruling is legally correct, we affirm regardless of the grounds upon which it was based. (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267.)

II.Defendants Failed To Show the Action Arises From Protected Activity

Local One contends the complaint falls within the categories defined by section 425.16, subdivisions (e)(3) and (e)(4). We disagree.

Preliminarily, we reject Local 790s assertion that Local One waived its ability to argue its conduct was petitioning under section 425.16, subdivision (e)(3) by failing to argue it in the trial court. Local Ones generally framed contention that their conduct was in furtherance of free speech rights concerning a public issue under section 425.16, subdivision (b)(1) and their citation to numerous authorities addressing both subdivisions (e)(3) and (e)(4) was adequate notice that Local One considered its petitioning or speech constitutionally protected.

A. Section 425.16, Subdivision (e)(3)

Section 425.16, subdivision (e)(3), provides that the protections afforded by the anti-SLAPP statute apply to 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 . . . . (Italics added.) Local One contends the flyers were distributed in a public forum. We disagree. A public forum is  traditionally defined as a place that is open to the public where information is freely exchanged. [Citation.] A public forum is a place open to the use of the general public  for purposes of assembly, communicating thoughts between citizens, and discussing public questions.    (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.) It is undisputed that the flyers were distributed in employee break rooms. Defendants, who bore the burden of making a prima facie showing that the lawsuit arises from protected activity (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67), point to no evidence that these employee break rooms were accessible to the general public; nor is there evidence showing even how many Covenant employees had access to them, used them or how broadly the flyers were disseminated.

Macias v. Hartwell (1997) 55 Cal.App.4th 669, on which Local One relies, does not advance its position. While Macias holds that a union campaign flyer was distributed in a public forum for purposes of the anti-SLAPP statute, the flyer there was mailed to 10,000 union members. As noted by the appellate court, [s]peech by mail, i.e., the mailing of a campaign flyer, is a recognized public forum under the SLAPP statute. (Id. at p. 674.) Local Ones flyer was not distributed by mail and there is no evidence that it was seen by a significant number of recipients.

Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 is also distinguishable. Damon involved allegedly defamatory statements made in two quite different contextsat meetings of a homeowners association board and in an association newsletter circulated to 3,000 residents and local businesses. (Id. at pp. 471-472.) As to the board meetings, the court had no difficulty finding the statements were made in a public forum: As our Supreme Court has recognized, owners of planned development units  comprise a little democratic subsociety . . . .  [Citations.] . . .  A homeowners association board is in effect a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. [Citation.] [] Because of a homeowners association boards broad powers and the number of individuals potentially affected by a boards actions, the Legislature has mandated that boards hold open meetings and allow the members to speak publicly at the meetings. [Citation.] These provisions parallel Californias open meeting laws regulating government officials, agencies and boards. [Citation.] Both statutory schemes mandate open governance meetings, with notice, agenda and minutes requirements, and strictly limit closed executive sessions. (Id.at p. 475.) Those factors were key in Damonsdetermination that the board meetings, which were televised, open to all Association members, and served as a place for open discussion among directors and members, were public forums for purposes of section 425.16. (Ibid.) No such factors are present here.

Damons additional finding that the Associations newsletter was also a public forum hits closer to the mark, but is ultimately unpersuasive. The Damon defendants established that the statements were distributed to some 3,000 residents and neighboring businesses in an established publication used to communicate information of concern to the residents. Here, defendants made no showing as to either the extent of distribution, or that, like the association newsletter, distribution in break rooms is a customary method of disseminating information relevant to employee concerns.

B. Section 425.16, Subdivision (e)(4)

Defendants also contend their actions fall within section 425.16, subdivision (e)(4) because they were exercising their first amendment rights on a matter of public interest. Following directly after subdivision (e)(3)s public forum provision, subdivision (e)(4) specifies that an  act in furtherance of a persons right of petition or free speech . . . in connection with a public issue  includes 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. (Italics added.) Does this broadly-worded clause qualify the flyers for anti-SLAPP suit protection that would not otherwise be afforded under subdivision (e)(3)? The answer must be no.

Looking first to the statutory language (see Green v. Workers Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1435), the phrase any other conduct strongly suggests the Legislature meant conduct other than written or oral statements that are specifically identified in the preceding subsections. Moreover, to interpret subdivision (e)(4) as encompassing any oral or written statements made in connection with a public issue would nullify subdivision (e)(3)s public forum requirement, in violation of the basic principle of statutory construction that [e]very word and clause is given effect so that no part or provision is useless, deprived of meaning, or contradictory. (Green, supra, 127 Cal.App.4th at p. 1435.)

The legislative history supports our construction. Section 425.16, subdivision (e)(4) was added in 1997 to clarify that the free speech rights section 425.16 was enacted to protect include constitutionally protected expressive conduct. (Stats. 1997, ch. 271,  1; Sen. Jud. Com., Analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended May 12, 1997.) Staff analyses prepared for committee hearings on the bill expound on the generally accepted purpose of this amendment. According to a Senate Judiciary Committee analysis, Proponents assert that the constitutional right of free speech and petition also includes constitutionally protected expressive conduct. This facet of First Amendment jurisprudence was recognized in Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, which held that the protections of Section 425.16 applies [sic] to both communicative conduct and noncommunicative conduct. (Id. at pp. 18-20.) [] This bill would reflect that law and specifically apply the provisions of Section 425.16 to any other conduct in furtherance of the constitutional right of petition or of free speech in connection with a public issue or an issue of public interest. [] The proposed phraseology (any other conduct) would appear to limit the provision to conduct when that phrase is compared to categories (1), (2), and (3) which refers [sic] exclusively to written or oral statements or writings.  (Sen. Jud. Com., Analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended May 12, 1997.) Similarly, an Assembly Committee on judiciary analysis of the bill states: Regarding the statutes reach into constitutionally-protected conduct as well as statements, the bill comports with the reasoning of the court in the recent case of Ludwig v. Superior Court . . . which held that Section 425.16s protections apply to both of these basic forms of protected communication. (Assem. Com. on Jud., Analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended June 23, 1997, p. 4; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended June 23, 1997, p. 2.)

The statutory language and expressed legislative intent lead us to conclude that section 425.16, subdivision (e)(4) applies to conduct other than written or oral statements. Accordingly, it does not apply here.

C. Section 425.16, Subdivision (e)(2)

We granted defendants leave to file a supplemental brief addressing a new theory not raised in the trial court: whether the flyers qualify as written or oral statement[s] or writing[s] 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 within the meaning of section 425.16, subdivision (e)(2). In general, [t]he theory upon which a case was tried in the court below must be followed on appeal. An exception to this rule is where a question of law only is presented on the facts appearing in the record. [Citation.]  But if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal.   (Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 920; McDonalds Corp. v. Board of Supervisors (1998) 63 Cal.App.4th 612, 618.) This is such a case. Whether the statements in the flyers were made in connection with an issue that was then under consideration by the NLRB, as defendants now claim, presents a factual question that was not considered below. In this situation, to permit them to argue this point for the first time on appeal would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. (Strasberg, supra, at p. 920.)

We conclude the trial court properly denied the anti-SLAPP motion. Because defendants have not shown the flyers constituted or were disseminated in a public forum, we do not address whether the statements in them were made in connection with an issue of public interest within the meaning of section 425.16, subdivision (e)(3) or whether plaintiffs demonstrated a probability of success on the merits.

DISPOSITION

The ruling is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

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^[1] All further statutory references are to the Code of Civil Procedure.

^[2] Card check refers to a process whereby a majority of a companys employees may designate a collective bargaining representative by signed petition or authorization cards. (See generally Linden Lumber v. NLRB (1974) 419 U.S. 301.)