Mastren v. Long Beach Area Local Amer. Postal Union

Filed 8/23/07 Mastren v. Long Beach Area Local Amer. Postal Union CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County.

Teresa Sanchez-Gordon, Judge. Affirmed.

Law Offices of Dennis J. Hayes and Dennis J. Hayes for Defendants and Appellants.

Felahy & Associates, Allen B. Felahy and Oscar Ramirez for Plaintiff and Respondent.

Defendants Long Beach, California Area Local, American Postal Workers Union, AFL-CIO (the local), and its president in 2004, Jesse Scroggins, appeal from an order denying their motion to strike as a SLAPP suit plaintiff Deborah Mastrens action for slander and intentional infliction of emotional distress (IIED). (Code Civ. Proc.,  425.16; undesignated section references are to that code.) We agree with the trial court that plaintiffs case was not grounded on statements respecting a public issue. Moreover, plaintiff in any event showed a likelihood of prevailing on her principal claim of slander. We therefore affirm the order denying the motion to strike.

FACTS

Plaintiffs complaint originally alleged a cause of action for libel in addition to the two claims now remaining. The libel cause, which involved a written and differently timed publication of the same charges subject to the slander claim, was dismissed by the United States District Court for the Central District of California, to which defendants had removed the case following its initiation. The district court then remanded to the superior court the claims for slander and for IIED insofar as it related to the slander. As so delimited, the complaint alleged as follows.

As of early 2004, the local was to participate in a week-long, biennial National Postal Workers Convention, scheduled to begin August 23, 2004. The local was entitled to send approximately 30 delegates. To participate as a delegate, a member had to submit a signed self-nominating statement to the locals election committee, before January 23, 2004. Plaintiff actively recruited such declarations, amassing 31 and submitting them. In two cases, plaintiff signed the members name on the nomination statement, with what she termed direct or indirect permission. Bill Poppe had personally given plaintiff permission to sign his name, while Valerie Romo had previously asked plaintiff not to let her be left out. Both members allegedly later signed statements confirming their permitting plaintiff to sign their names.

However, Melvin Jones, a local trustee, informed Ms. Romo that a random person had forged her signature. This induced Ms. Romo to provide Jones a signed statement that she had been a victim of forgery. Consequently, the election committee ordered that plaintiffs nominating statements be submitted again, by February 17, 2004. Plaintiff canvassed her contacts again, and with two exceptions all of those whose names she had originally submitted provided signed nominating statements, which plaintiff again submitted.

Plaintiff alleged that defendant Scroggins informed several self-nominees that plaintiff had forged their signatures, but they affirmed they had personally signed. However, on May 7, 2004, Scroggins prepared a letter charging that plaintiff had forged at least eight signatures, including those of three members (Valent, Ceballos, and Sanford) who had already told Scroggins that was not so. Signing the letter as local president, Scroggins sent the letter to the locals executive board, and also, on August 12, 2004, to the locals entire membership, along with a letter by the locals officers endorsing the accusation.

In her slander claim, plaintiff alleged that on or about August 16, 2004, Scroggins, as the locals president, orally communicated to third parties the false statements in his letter (which was entirely false as concerns plaintiff), which accused plaintiff of committing crimes including forgery. Both defendants knew of the falsity. The statements were slander per se under Civil Code section 46, because they accused plaintiff of serious crime, and directly tended to injure plaintiff in her office (as a mail processing clerk). Plaintiff proximately suffered loss of reputation and hurt feelings, in an amount to be proven. Defendants acted with the improper motive of damaging plaintiffs reputation and with intent to injure her, all amounting to malice. Plaintiff therefore prayed punitive damages.

In the companion IIED claim, plaintiff alleged that defendants conduct was outrageous, and was committed with malice and reckless disregard that plaintiff would suffer emotional distress from it, which she did, in an amount to be proven. For punitive damages purposes, defendants were guilty of malice for the same reasons as in the slander cause.

After the case was remanded to superior court, defendants filed a motion to dismiss under section 425.16, the anti-SLAPP statute. Factually, defendants supported their motion with a declaration by Scroggins, which set forth the context of the charges in the complaint. According to this declaration and its exhibits, plaintiff and Scroggins had previously been opposing candidates for the locals presidency, Scroggins having defeated the incumbent plaintiff in 2002. When plaintiff delivered her batch of self-nominations for delegates to the 2004 national convention, Scroggins questioned the genuineness of those by Poppe, whom Scroggins knew had been hospitalized, and Romo, because the document and its signature misspelled her first name. Scroggins contacted these two members, who provided written statements. Poppe confirmed that, because of medical commitments, he had given plaintiff permission to prepare and sign his name to his nomination, but Romo stated she had neither signed nor authorized her name to be signed for nomination. It was then determined that all nominees whom plaintiff had presented should have to submit new nominations, personally executed.

On May 7, 2004, Scroggins by letter filed against plaintiff eight charges of what his declaration termed forged signatures. The charges included Popp and Romos cases; plaintiff later withdrew one of the other six, concerning Larry Valent.^[1] The charges ostensibly constituted violations of certain provisions of the locals Constitution and Bylaws. Under the national unions constitution, such violations could lead to suspension or expulsion.

Plaintiff was notified of the charges, and of a due process hearing that would be conducted on them. She did not attend this hearing. At its conclusion, the trial board found plaintiff not guilty on five of the charges, but guilty with respect to Poppe and Romo. The board recommended that plaintiff be suspended for 50 days. On July 22, 2004, at a general meeting, the locals membership convened to consider the findings and recommendation. Plaintiff had prepared a written statement for the membership, which was read and distributed to them. Those present voted to adopt the adjudication against plaintiff, and she was suspended.

Scroggins declared that during the hearing and ratification process, there were discussions of the charges and verdict. He did not make statements about plaintiff that he knew were false, nor did I recklessly disregard the truth. All statements that I made about [plaintiff] I believed to be true. And he had no hatred or ill will against plaintiff at the time of the events in the complaint.

In their points and authorities, defendants argued that the charges against plaintiff came within the types of statements subject to section 425.16, and that plaintiff could not prevail on her slander claim because all statements were privileged under the qualified common interest provisions of Civil Code section 47, subdivision (c). That privilege applies to communications made without malice; plaintiff could not establish malice because she could not show, by clear and convincing evidence, that Scroggins spoke with reckless disregard for the truth. Defendants argued that the similarly based IIED claim should fail for the same reasons.

In opposition to defendants contentions, plaintiff adduced a declaration by a postal worker and local member (Gonzales) that, sometime between September 11 and October 14, 2004, Scroggins had come into the lunch room and communicated the charges against plaintiff, in the presence of both union and non-union employees. Plaintiff offered further declarations on the issue of knowing falsity. Poppe declared he had given plaintiff permission to prepare his nomination and sign his name to it, and that he had so informed Scroggins in January 2004. In addition, three of the members with regard to whom charges had been filed but ultimately rejected or withdrawn declared that they had signed their own nominations, and that, when asked by Scroggins in March 2004, had so stated.

In its tentative ruling on the motion to dismiss, the trial court faulted defendants initial statutory showing, because Scrogginss declaration did not describe the contents or circumstances of his post-July 2004 statements. Defendants have not carried their burden of establishing that the oral statements were made in a place open to the public and a public forum in connection with an issue of public interest. ( 425.16, subd. (e)(3).) The court also noted that defendants had not established that Scrogginss publication of the defamatory statements had been made solely to union members, in contrast with Gonzaless declaration that those addressed had not been so limited, a matter bearing on privilege. The court concluded that As defendants have not carried their burden of establishing that this action is subject to . . . section 425.16, the motion is denied.

DISCUSSION

Section 425.16, subdivision (b)(1), provides for the striking of a cause of action based on an act in furtherance of a persons constitutional right of petition or free speech in connection with a public issue, unless the plaintiff establishes there is a probability that it will prevail on the claim. As did the trial court, we thus face two questions: whether plaintiffs claims for slander and IIED were based on acts in furtherance of those constitutional rights in connection with a public issue, and if so whether plaintiff established a probability of prevailing on them.

By its terms, section 425.16 does not extend to all lawsuits based on rights of petition or speech. Rather, the basis for a case qualifying as a SLAPP (strategic lawsuit against public participation) includes that the act in furtherance of speech or petition must have been in connection with a public issue . . . . (Id.., subds. (b)(1), (e).) This element is carried forward in the statutes enumeration of covered statements and other acts, besides those in connection with official proceedings. (See subds. (e)(3), (e)(4).) The trial court held that defendants had failed to establish that Scroggins oral statements charged in the slander cause were of this nature.

Substantial authority supports the trial courts ruling. In Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (DuCharme), the plaintiff had been terminated as assistant business manager of a union local, on grounds of having received unauthorized vacation and overtime. Contemporaneously, the business manager was terminated for embezlement. The plaintiff sued for defamation after a union official subsequently posted on the locals web site a notice that both men had been discharged for financial mismanagement of the Local. (Id. at p. 113.) The trial court denied defendants motion under section 425.16, on grounds the statement had not involved an issue of public interest, under subdivisions (e)(3) and (4).

The Court of Appeal affirmed. It distinguished Macias v. Hartwell (1997) 55 Cal.App.4th 669 (Macias), which involved a libel claim by a candidate for union local president against her opponent, noting that the public issue had involved an election by and affecting 10,000 members, to whom the alleged libel had been circulated. On the other hand, the court in DuCharme noted its recent decision in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero), which, after reviewing the previous case law concerning public issues under section 425.16, had found no such issue in a unions alleged defamation of a discharged supervisor, because he had supervised only eight employees. The DuCharme court held that the web site posting had been after the fact of the plaintiffs discharge, with no further action in contention regarding it.

Here similarly, Scrogginss alleged repetition of his charges against plaintiff occurred after those charges had been adjudicated, largely in plaintiffs favor, and after the locals membership had been formally notified in writing of those results. Further repetition of the original charges prima facie involved no perceptible public controversy or issue.

Defendants vigorously contend, however, that Scrogginss repetition of his charges fell within the scope of Macias,supra, and other cases involving charges and counter-charges by candidates for elective office. Defendants so contend based on the premise that there was an ongoing campaign for local president, which plaintiff and Scroggins were contesting. But defendants did not show this. Scrogginss declaration simply stated that plaintiff had run against him in 2005, the year following the alleged defamation. And although in her complaint plaintiff referred to an aspiration again to hold office in the local, and how defendants charges would interfere with that, those allegations too did not establish that there was a political contest ongoing during the months of August and September 2004, immediately following plaintiffs suspension.

Accordingly, we cannot fault the trial courts ruling that defendants did not establish the qualifications for a motion to strike under section 425.16. But even were that ruling to be considered incorrect, the evidence the plaintiff presented was sufficient to show a probability of her prevailing, at least on her slander claim. ( 425.16, subd. (b)(1).)

Plaintiffs declaration by Gonzalez stated that between mid-September and mid-October 2004, before both local members and non-members, Scroggins communicated the charges against [plaintiff]. Plaintiffs papers included a copy of those charges. The declarations of Poppe, Ceballos, Sanford, and Valent, half of the individuals whose signatures defendants alleged plaintiff had forged, stated in effect that the charges were false, in that the declarants had either signed their own nominations or had authorized plaintiff to sign the name. Plaintiff thus presented evidence of false oral statements by Scroggins, accusing her of a crime and injurious to her in her profession. (See Civ. Code,  46, subds. 1, 2.)

Defendants contend that the statements were privileged, under the interested persons privilege of Civil Code section 47, subdivision (c). But an affirmative element of that privilege is that the statements have been made without malice. In this context, malice means either hatred or ill will, or lack of reasonable grounds for believing the statement true. (Sanborn v. Chronicle Pub. Co.(1976) 18 Cal.3d 406, 413; id. at p. 414.) Plaintiff advanced the declarations of four members that they told Scroggins either that their signatures were their own or (in Poppes case) that he had authorized plaintiff to sign his name on his behalf. This evidence showed that Scroggins lacked reasonable grounds for believing true his charges, at least as far as half of their subjects were concerned. Thus, without regard to whether all of the recipients of Scrogginss oral statements were or were not interested, plaintiff showed malice in those utterances. Plaintiff thus showed a probability of prevailing on her slander claim. ( 426.16, subd. (b)(1).)^[2]

DISPOSITION

The order under review is affirmed. Plaintiff shall recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

BOLAND, J.

FLIER, J.

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^[1] Each charge stated that plaintiff intentionally wrote the signature of a specific individual on a nomination document (attached) and submitted it to the locals election committee to create an erroneous and false impression of that signature.

^[2] The same cannot be said, however, of the IIED claim. Plaintiff presented no declaration or other evidence showing that she suffered severe emotional distress from defendants allegedly outrageous conduct.