MacKinnon v.Teasdale

Filed 10/10/06 MacKinnon v.Teasdale CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff appeals from the order granting defendant’s special motion to strike under Code of Civil Procedure section 425.16 (hereafter section 425.16). Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as “SLAPP” suits (strategic lawsuits against public participation). Plaintiff contends that the trial court erred in finding that three letters sent by defendant to plaintiff’s real estate agent qualify as exercises of the right to petition and the right to freedom of speech under section 425.16. She also contends that the trial court erred in finding that her underlying cause of action against defendant for interference with contractual relations lacks merit. We disagree with plaintiff in both respects and affirm the order.

STATEMENT OF FACTS

Defendant owns two homes in the City of Sausalito located at 112 and 116 West Street. During the time period relevant to this case, plaintiff owned the home in between defendant’s two properties at 114 West Street. Defendant’s property at 116 West Street is downhill from 114 West Street. The dispute between the parties began after plaintiff decided to remodel her home.

On April 24, 2002, defendant sent a letter to the City of Sausalito’s Planning Commission, expressing concerns about the proposed remodel. He expressed concerns relating to off-street parking, conformance with setbacks, and imposition on the neighbors’ privacy and views. The Planning Commission approved the remodel on July 24, 2002.

On June 6, 2004, defendant sent a letter to the real estate agent whose name appeared on the “For Sale” sign on plaintiff’s property. The subject line of the letter is: “Construction Defects at 114 West Street, Sausalito.” The letter mentions that defendant does not know how to reach the owner and requests that the agent “pass this message.” Defendant’s specific concern is stated as the “diversion of surface and groundwater from 114 West Street onto my property at 116 West Street.” The letter goes on to state: “According to my inspection, this appears to be a major problem. Grading, lack of gutters, sloping of the sidewalk and a lack of proper groundwater diversion produced by your building may cause my property severe damage in the near future.” The letter concludes: “Please disclose my concerns to the property’s owner and any future purchasers until this problem has been resolved.” The letter indicates that copies were sent to the Building Inspection Department of the City of Sausalito, as well as to an attorney bearing the same last name as defendant.

On June 12, 2004, defendant sent another letter to plaintiff’s real estate agent. The letter was written shortly after a meeting that defendant had attended earlier that day with plaintiff, plaintiff’s real estate agent, a prospective buyer’s real estate agent, and a soil engineer. The letter discusses the drainage issue again, as well as a potential property line dispute. This letter was also copied to the City of Sausalito’s Building Inspection Department and to defendant’s attorney.

On June 14, defendant visited the Building Inspection Department. Defendant discussed his concerns regarding drainage with a building inspector and requested that further approval of the project be suspended until after the department reviewed the issue. The Building Inspection Department issued a certificate of occupancy on June 15, 2004.

On June 19, 2004, defendant sent another letter to plaintiff’s real estate agent, again with the subject line: “Construction Defects at 114 West Street, Sausalito.” The letter references the meeting on June 12, 2004. According to the letter, during this meeting, the soils engineer had stated that no solution “would guarantee good water diversion from the house at 114 West Street away from my building at 116 West Street.” The letter also complains that plaintiff wrongfully asserted ownership rights to a portion of defendant’s walkway. The letter states: “I am trying to avoid filing legal documents that will postpone or prevent legal transfer of this property.” The letter reveals that during his visit with the Building Inspection Department on June 14, 2004, defendant learned that a soils engineer had previously recommended the installation of gutters and connected drains to divert water from neighboring properties. Again, the letter concludes with a request that the agent disclose these concerns to the owner, as well as to any future purchasers until the problem is resolved. As with the two prior letters, this letter was copied to the Building Inspection Department and to defendant’s attorney.

On June 24, 2004, defendant wrote another letter, this time to the City of Sausalito’s Building Inspector. In his letter, defendant complained that plaintiff’s proposed alternative drainage system was inadequate and requested reconsideration of the Building Inspection Department’s decision to approve the certificate of occupancy. The letter was copied to the same attorney as before. It does not appear that defendant sent a copy of this letter to plaintiff or her real estate agent.

PROCEDURAL HISTORY

Plaintiff filed a complaint against defendant on February 23, 2005, alleging that defendant had interfered with the sale of the home at 114 West by causing a prospective buyer to cancel the transaction. Specifically, plaintiff alleged that defendant “communicated to buyer’s agent and buyer erroneous, inaccurate and unsupported allegations of construction defects at 114 West Street, as well as threatened to litigate the purchase and sale agreement between plaintiff and buyer if both parties did not accede to defendant’s unilateral mandate to make construction modifications to 114 West Street that defendant demanded.”[1]

In support of her claim, plaintiff alleged that defendant “actively and publicly opposed redevelopment of plaintiff’s property in the City of Sausalito despite unanimous approval from the Sausalito Planning Commission.” The complaint also alleges that defendant “attempted, first, to interfere with the lawful issuance of a certificate of occupancy (CO) for plaintiff’s property by the City of Sausalito and then, after lawful issuance of the CO by the City, demanded its’ [sic] rescission by wrongfully, erroneously and maliciously alleging that plaintiff’s design of the property had not been approved by the City of Sausalito Planning Commission.” Plaintiff alleged that she had been harmed because she subsequently sold the property to another buyer for less money. Plaintiff sought compensatory damages in the amount of $131,000 and punitive damages.

Defendant filed a motion to strike the complaint pursuant to section 425.16. The trial court granted the motion to strike, finding that the claim fell within the protection of section 425.16, subdivision (e)(2), because the project was still under review by the Sausalito Building Inspection Department when defendant wrote the letters of June 6, 2004 and June 12, 2004. Citing Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103, the court found that the letter of June 19, 2004 was also protected because, even though it was written after the project had been approved, defendant’s protected conduct was not “ ‘merely incidental’ to his arguably unprotected conduct.” Additionally, the court determined that the letters, although private, were protected because they involved a matter of public concern. Finally, the court concluded that plaintiff had failed to demonstrate she could prevail on her claim for interference with contractual relations because she offered no evidence by which a reasonable trier of fact could find that defendant intended to induce a disruption of the contract between her and the prospective buyer. This appeal followed.

DISCUSSION

I. Section 425.16 and the Standard of Review

Section 425.16, known as the anti-SLAPP statute, provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States 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.” (§ 425.16, subd. (b)(1).) “The phrase ‘arising from’ . . . has been interpreted to mean that ‘the act underlying the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must have been an act in furtherance of the right of petition or free speech. [Citations]” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001.) “The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings.” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.)

Courts engage in a two-step process in determining whether a cause of action is subject to a special motion to strike under section 425.16. First, the court determines if the challenged cause of action arises from protected activity. If the defendant makes such a showing, the burden shifts to the plaintiff to establish, with admissible evidence, a reasonable probability of prevailing on the merits. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute--i.e., that arises from protected speech or petitioning and lacks even minimal merit--is a SLAPP, subject to being stricken under the statute.” (Id. at p. 89, italics in original.)

A ruling on a section 425.16 motion is reviewed de novo. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.) We review the record independently to determine whether the asserted cause of action arises from activity protected under the statute and, if so, whether the plaintiff has shown a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th 993, 999; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th 798, 807.)

II. Defendant’s Conduct Qualifies as Protected Activity

Plaintiff contends her lawsuit does not arise from acts undertaken by defendant in furtherance of his right to petition or his right to freedom of speech in connection with a public issue.[2] We disagree.

Section 425.16, subdivision (e), defines an “ ‘act in furtherance of a person’s right of petition or free speech . . . in connection with a public issue’ “ to include: “(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.” Courts are required to interpret section 425.16 broadly in favor of protecting legitimate exercises of free speech and the right to petition. (§ 425.16, subd. (a).)

Defendant contends that his conduct falls within clauses (2), (3), and (4) of section 425.16, subdivision (e), because his letters were written in connection with an official proceeding and concern “an issue of public interest.” We find that defendant’s conduct is covered by clause (2) because his letters were “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]

Defendant concedes that writing letters to plaintiff’s real estate agent “is not directly petitioning an official body.” He contends, however, that “all of his conduct was in furtherance of his right to free speech and to petition his government.” Plaintiff asserts that the trial court erred in concluding that letters that are merely “cc’d” to an administrative agency qualify as petitions. She characterizes defendant’s three letters simply as the “sources of interference” upon which she bases her cause of action for intentional interference with contractual relations. Plaintiff predicts that “[i]f the court’s conclusion stands, anyone may now engage in any activity intended to interfere with the transfer of title to real property, or any other tort, with complete impunity . . . simply by including a ‘cc’ to an employee or agency of government at the conclusion of otherwise purely private communications.”

We believe, however, that plaintiff’s view of defendant’s letters is unduly narrow. We find that the communications at issue here are covered by section 425.16, subdivision (e)(2), because they were made in connection with matters under review by the City of Sausalito’s Building Inspection Department and because they were made in anticipation of litigation.

The record before us reveals that plaintiff’s certificate of occupancy was pending until June 15, 2004. We agree with the trial court that because defendant’s letters of June 6 and 12 predate the issuance of this certificate these two letters may be deemed as writings undertaken in furtherance of defendant’s ongoing efforts to petition city authorities to address his concerns. We note that section 425.16 does not require that a communication be made directly to an administrative agency in order to be protected. Rather, the communication must have been 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.” (425.16, subd. (e)(2), emphasis added.) In any event, while defendant did not directly address his letters to city authorities, he clearly intended for them to receive these letters.

Plaintiff contends that “[n]one of [the three letters] had anything to do with an issue under consideration or reviewed by an official proceeding at any point in time . . . .” The record does not support plaintiff’s assertion. We believe that “construction defects” are of some concern to city building inspection departments. Additionally, defendant in his declaration states that he visited the Building Inspection Department and engaged in a discussion with an inspector regarding the drainage on plaintiff’s property. This visit occurred before the certificate of occupancy issued. The fact that defendant’s efforts were ultimately unsuccessful does not diminish the protections afforded by section 425.16. Keeping in mind the Legislature’s directive to construe the anti-SLAPP statute broadly, we find that the letters of June 6 and 12, 2004, are protected because they were made in connection with an official proceeding authorized by law, namely, the issuance of a certificate of occupancy.

In addition, we find that all three of defendant’s letters are protected by section 425.16, subdivision (e)(2), because they reasonably relate to anticipated litigation. Courts have observed that “Clauses (1) and (2) of section 425.16, subdivision (e), but not clauses (3) and (4) are coextensive with the litigation privilege of Civil Code section 47, subdivision (b).” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1467, fn. 3.)[4] “Courts have adopted a ‘fairly expansive view’ of litigation-related conduct to which section 425.16 applies.” (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125.) “ ‘Just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such statements are equally entitled to the benefits of section 425.16.’ [Citations.]” (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th 1106, 1115.) The privilege includes statements concerning litigation threatened in the event a demand is not met. (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 260-261.) The privilege also encompasses statements made to third parties who have a substantial interest in the outcome of the litigation. (Costa v. Superior Court (1984) 157 Cal.App.3d 673, 678.) Thus, “statements made in connection with or in preparation of litigation are subject to section 425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.)

We believe that the three letters in this case can fairly be characterized as demand letters made in preparation for litigation. All three letters were made within two weeks of each other and were copied to defendant’s attorney. In his letter dated June 19, 2004, defendant stated: “I am trying to avoid filing legal documents that will postpone or prevent legal transfer of this property. If you do not respond promptly, I will have no alternative.” Clearly, at least by June 19, 2004, defendant was actively contemplating the prospect of litigating this property dispute, and even plaintiff’s complaint alleged defendant was “threatening to take legal action.” Accordingly, we find that the three letters fall within the litigation privilege and are therefore protected by section 425.16, subdivision (e)(2).

Plaintiff cites Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 34 (Edwards), for the proposition that defendant is not entitled to claim the litigation privilege because he offered no evidence that he was preparing for litigation. We find plaintiff’s reliance on Edwards to be unavailing but find the case of Aronson, supra, to be instructive.

In Edwards, a defendant attempted to apply the litigation privilege to statements made by a developer and an insurance company many years before the litigation was commenced. These statements were made during settlement negotiations with homeowners who had discovered construction defects in their homes and who, in reliance on these statements, executed releases. Later, after the homeowners discovered further defects and learned that the developer and insurance company had failed to tell them of a more thorough investigation of, and repairs made to, another home in the subdivision involving similar problems, the homeowners sued the developer, engineering firm, and insurance company for fraud, misrepresentation, and negligence, based on fraud in obtaining the releases. The developer and engineering firm, citing the litigation privilege, sought to exclude all the statements they had made to the homeowners before the original repairs. The court found the statements were not privileged. (Edwards, supra, 53 Cal.App.4th 15, 40.)

As noted in Aronson, “in Edwards, the court was faced with an extreme situation, where the statements were very remote in time from the actual litigation. . . . The court held the litigation privilege did not apply because the statements were simply too remote from the litigation. . . . Edwards does not support [plaintiff]’s suggestion that a complaint must be drafted or in the process of being drafted when the statements were made. . . . The very function of a demand letter is to notify the other party that litigation is imminent unless certain steps are taken.” (Aronson v. Kinsella, supra, 58 Cal.App.4th 254, 267-268.)

Because we conclude that all three of defendant’s letters are protected under section 425.16, subdivision (e)(2), we need not decide whether they are likewise protected under subdivision (e)(3) or (e)(4) of section 425.16 on the theory that they were written in connection with “an issue of public interest.” Nor do we need to address the issue of whether the letters of June 6 and 12, 2004 are “merely incidental” to his arguably unprotected letter of June 19, 2004.

III. The Merits of Plaintiff’s Cause of Action

Once a finding is made that a plaintiff’s lawsuit arises out of the defendant’s rights to freedom of speech or to petition, the burden shifts to the plaintiff to prove that the lawsuit has merit. “The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.” (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) The plaintiff need only establish the challenged cause of action has “minimal merit.” (Navellier v. Sletten, supra, 29 Cal.4th 82, 93-94.) If it is clear that the plaintiff cannot prove an element of the cause of action or that the claim would be barred by an affirmative defense, then the lawsuit will be found to be lacking in merit: “Generally, a defendant may defeat a cause of action by showing the plaintiff cannot establish an element of its cause of action or by showing there is a complete defense to the cause of action . . . .” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676, italics in original.)

In showing that a claim has merit, a plaintiff “ ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the 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.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

“The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) “The required intent is shown if the defendant ‘knows that the interference is certain or substantially certain to occur as a result of his action. The rule applies, in other words, to an interference that is incidental to the actor’s independent purpose and desire but known to him to be a necessary consequence of his action.’ [Citation.] Whether the interference was justified as merely incidental to the defendant’s legitimate pursuit of his own interests is a question of fact.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239.)

Defendant claims, and the trial court agreed, that plaintiff cannot prove the third element, namely, that defendant intended to induce a breach of the contractual relationship between plaintiff and the prospective buyer. We need not decide the propriety of the trial court’s ruling, however, because we have already determined that defendant’s conduct is protected by the litigation privilege under Civil Code section 47, subdivision (b). Because the litigation privilege serves as a complete defense to plaintiff’s cause of action, we find that her lawsuit lacks merit.

While the litigation privilege can be invoked to prove that a defendant’s conduct is protected by section 425.16, subdivision (b)(2), the privilege “is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense the plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) The litigation privilege is applicable to a cause of action for intentional interference with contractual relations. (See Silberg v. Anderson (1990) 50 Cal.3d 205, 215; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784-785.)

As noted above, “ ‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the litigation privilege [citation]. It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “In recent years our Supreme Court has several times had occasion to consider the scope of the ‘litigation privilege’ established by Civil Code section 47, subdivision (b). The court has consistently and forcefully reiterated that the privilege is virtually absolute and that the only tort cause of action which can be based upon the initiation of a lawsuit (or communicative acts related to the lawsuit) is that of malicious prosecution.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 24.)

“In California, the courts have held a prelitigation statement is protected by the litigation privilege of section 47, subdivision (b) when the statement is made in connection with a proposed litigation that is ‘contemplated in good faith and under serious consideration. [Citation.]’ [Citations.]” (Aronson v. Kinsella, supra, 58 Cal.App.4th 254, 262.) In other words, the prelitigation statements must “ ‘have some connection or logical relation to the action.’ “ (Id. at p. 266.)

As noted above, all three of defendant’s letters that plaintiff relies on to prove her claim are protected by the litigation privilege. The letters demonstrate that defendant had a reasonable belief that he had a legally viable claim and that he seriously contemplated the possibility of litigation. In addition to causing the letters to be protected communications under section 425.16, subdivision (e)(2), the litigation privilege here serves as a complete defense to plaintiff’s underlying cause of action.

IV. Defendant’s Allegedly False Statements

Plaintiff alleges that many of the statements contained in defendant’s declarations and letters are false. Many of plaintiff’s allegations are based on material that was improperly before the trial court, which the trial court did not consider.[5] We also decline to consider this material. Other allegations by the parties do not suggest that the facts are in dispute, but rather that the parties dispute the inferences flowing from those facts. For example, plaintiff argues that defendant’s concerns regarding proper drainage were suspect because his letters were written months before the rainy season began. We believe the letters at issue stand on their own and are dispositive of the issues in this case.

V. Leave to Amend and Discovery Request[6]

Plaintiff appears to request for the first time on appeal that she be allowed to amend her complaint or alternatively requests “30 days to conduct limited discovery to substantiate her claims.” We deny both requests.

It is a fundamental rule of appellate practice that ordinarily matters not raised in the trial court cannot be raised for the first time on appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) 1:44, p. 1-10.) However since the parties have briefed these issues we will briefly address them.

“Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.)

Regarding the request for further discovery, section 425.16, subdivision (g) provides that all discovery shall be stayed upon filing of a motion to strike, but allows the court to grant discovery upon “noticed motion and for good cause shown.” No such motion was filed. And we agree with the following observation: “Obviously, the purpose of the statute would be frustrated if the plaintiff could drag on proceedings for many months by claiming a need to conduct additional investigation. The legislative intent is best served by an interpretation which would require a plaintiff to marshal facts sufficient to show the viability of the action before filing a SLAPP suit.” (Ludwig v. Superior Court, supra, 37 Cal.App.4th 8, 16.)

The order is affirmed.

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[1] While the complaint alleges that defendant’s conduct occurred on five separate dates in June 2005 (the year stated on the complaint appears to be erroneous as the conduct actually occurred in 2004), in her appeal plaintiff states that her lawsuit “is based on the three letters which [defendant] sent to [plaintiff’s] real estate agent.” These are the letters dated June 6, 12, and 19, 2004.

[2] Plaintiff also strenuously argues that this is not a true SLAPP case because her lawsuit “is not the typical ‘weapon of choice’ “ for a SLAPP case, nor are the parties “typical SLAPP litigants.” Regardless, our task is simply to determine whether section 425.16 applies on the facts presented to us.

[3] A defendant who invokes the second clause of subdivision (e) of section 425.16, need not “separately demonstrate that the statement concerned an issue of public significance.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. omitted.)

[4] Civil Code section 47, subdivision (b), states, in relevant 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 . . . .”

[5] A letter dated March 30, 2005 was attached as an exhibit to plaintiff’s purported reply to defendant’s reply to plaintiff’s opposition to defendant’s motion to strike. The trial court did not authorize the submission of this surreply. We decline to consider this letter or any other documents that were submitted in connection with this questionable pleading.

[6] We have been unable to find in the record on appeal any specific requests to amend or to conduct additional discovery or any order denying such requests.