OVERHILL FARMS, INC V. LOPEZ











Filed 11/15/10; pub. order 12/14/10 (see end of opn.)











IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

OVERHILL FARMS, INC., Plaintiff and Respondent, v. NATIVO LOPEZ et al., Defendants and Appellants.

G042984 (Super. Ct. No. 30-2009-00125409) O P I N I O N

STORY CONTINUE FROM PART I….


C.
The Characterization of This Case as Arising From a “Labor Dispute”
Does Not Help Defendants
Defendants also contend the court erred in refusing to apply a heightened burden of proof to Overhill’s claims, and gave only “cursory” attention to their argument that such a standard was appropriate because the case arises out of a classic “labor dispute.” Defendants do not, however cite to any part of the record demonstrating either what standard of proof the court applied, or that the court actually refused to apply the one they sought. This failure to cite to evidence in the record requires us to presume the court applied the correct standard. The claim is waived.
But even if the claim were not waived, we would conclude the evidence produced by Overhill in this case was sufficient to meet even the heightened standards applicable to a claim of defamation made in the context of a classic labor dispute.[1]
According to defendants, a claim of defamation which arises in a labor dispute enjoys the same First Amendment protections which are applied to allegedly defamatory statement made against a public figure – the standard announced in New York Times v. Sullivan (1964) 376 U.S. 254. (Linn v. United Plant Guard Workers, Local 114 (1966) 383 U.S. 53.) Thus, in order to prevail, plaintiff must establish not only a provably false statement of fact, but also demonstrate that defendant made the statement with “knowledge of its falsity or with reckless disregard of whether it was true or false.” (Id. at p. 61; Old Dominion Branch No. 496 v. Austin (1974) 418 U.S. 264, 274.)
The evidence produced by Overhill was sufficient to satisfy that standard. Overhill provided substantial evidence defendants either knew, or recklessly disregarded, facts demonstrating that they had not fired hundreds of Latino employees based solely on having been notified of a potentially innocent discrepancy in social security numbers which even the Federal Government would not deem sufficient, to warrant termination. There was evidence the affected employees were specifically told their social security numbers were identified as “invalid,” and were given opportunities to rectify the problem, but failed to do so. There was evidence Overhill communicated those facts to the union which represented its employees, as well as to the remaining employees directly, and no evidence that either Overhill or the union refused to explain the employment termination decision to any employee who inquired. There was evidence both the union, and defendant Lopez, explicitly acknowledged that the affected employees were not authorized to work in the United States. This evidence, taken together, was sufficient to constitute a prima facie showing defendants made their defamatory “racist firing” claims with either knowledge of their falsity, or reckless disregard for their truth.
IV.
The court did not err in refusing to strike overhill’s remaining causes of action
Defendants also challenge the sufficiency of the evidence to sustain Overhill’s claims for intentional inference with prospective economic advantage, intentional interference with contractual relations and extortion. Defendants’ primary argument is that each of these claims is dependent upon the sufficiency of the defamation claim, which it characterized as lacking. As we have already explained, we find that argument unpersuasive. As we now explain, we find defendants’ alternative arguments with respect to these other claims to be unpersuasive as well, and conclude the court did not err in refusing to strike them.

A.
Interference with Prospective Economic Advantage
Defendants challenge Overhill’s cause of action for interference with prospective economic advantage by arguing Overhill failed to provide any evidence of actual disruption or harm to an existing economic relationship. Specifically, defendants point to Overhill’s evidence that one of its customers, Fresh and Easy, subjected it to an “ethics audit,” which focused on questions about “immigration issues,” in the wake of defendants’ alleged defamatory statements. Defendants claim this evidence shows “mere temporal proximity” between their conduct and the audit, and was inadequate, as a matter of law, to demonstrate causation. (See Franklin, supra, 116 Cal.App.4th 375.) We cannot agree.
Although some cases have suggested that temporal proximity, alone, might be insufficient to demonstrate a causal relationship, we view the issue as more complex than that, and largely dependent upon the degree of proximity and the likelihood of a cause and effect relationship. For example, if plaintiff offers evidence that defendant’s boat struck his broadside, and within five minutes his boat started to sink, we think that would be sufficient evidence, in and of itself, to support an inference of causation. By contrast, plaintiff’s evidence that his boat sank 10 days after being hit by defendant’s, is significantly less compelling, and might be insufficient, by itself, to suggest any causal relationship. And if plaintiff were to testify the sun goes down every night within moments of when he takes his first sip of a gin and tonic, we would conclude the evidence was insufficient, as a matter of law, to support any inference his imbibing actually caused the sun to set.
Thus, while Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th, 1340, 1345, does state that “[m]ore than post hoc, ergo propter hoc must be demonstrated,” the case cannot be fairly characterized as stating an inflexible rule that such evidence would be insufficient in all cases. Indeed the Motorola court itself actually states the opposite, noting “[a]lthough, in the absence of other evidence, timing alone may be sufficient to prove causation, the present matter involves much more.” (Ibid., italics added.) Thus, as the Motorola court makes clear, the real issue is whether, in the circumstances of the case, the proximity of the alleged cause and effect tends to demonstrate some relevant connection. If it does, then the issue is one for the fact finder to decide.
Here, Overhill provided evidence that Fresh and Easy began questioning Overhill’s termination of the employees within two weeks of its occurrence and called for what they referred to as an “audit” of Overhill’s labor practices almost immediately. They also showed that Fresh and Easy had never done anything similar in the past. We think that evidence was sufficient to support an inference of causation, which is all that is necessary in this procedural posture.
Defendants also suggest there was no direct evidence the relationship between Overhill and Fresh and Easy was actually disrupted, because Overhill otherwise acknowledged it expected the relationship to continue into the future. Defendants contend this concession demonstrates “no harm, no foul.” While the Chick Hearn approach to jurisprudence has its place, the contention here lacks merit because the evidence cited reflects only that, prior to the defamatory conduct, Overhill “had every expectation that this relationship would continue.” That statement merely supports the conclusion Overhill anticipated a “prospective” economic relationship with Fresh and Easy at the time of the alleged defamation.
In any event, defendants cannot challenge the sufficiency of the evidence supporting Overhill’s prima facie case by simply attacking one factual claim, without otherwise making any attempt to summarize or analyze the entirety of the evidence pertaining to that point. “It is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence. (Brown v. World Church [(1969)] 272 Cal.App.2d 684, 690.) This burden is a ‘daunting’ one. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208, italics added.) ‘[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.’ (Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14-15.)” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
Defendants have not done so, and have not established the court erred in rejecting the motion to strike Overhill’s cause of action for interference with prospective economic advantage.
B.
Tortious Interference With Contractual Relations
Defendants contend Overhill’s claim for interference with contractual relations is preempted by the National Labor Relations Act (NLRA), but cite no authority for such preemption involving a claim asserted against third parties, based upon defamatory conduct. The case cited by defendants in support of their contention is Local 926, Int’l Union of Operating Engineers v. Jones (1983) 460 U.S. 669, 677-678, which held only that an employee’s state law claim for interference with his employment contract, filed against the union itself, was preempted by the NLRA.
The claim in this case does not involve any claims asserted between the employer and the union. Nor is this case merely based upon “grievances filed by Defendants and other[s] and the ‘threat’ of continued presumptively protected peaceful labor picketing.” In fact, it is based upon neither of those things. Overhill never challenges defendants’ rights to pursue individual labor grievances or to engage in “protected peaceful labor picketing.” If it had, defendants’ preemption argument might have merit.
But this case is based instead upon defamatory conduct, and as defendants otherwise concede, liability based on such conduct is not preempted. Indeed, as the Supreme Court has expressly held “in Linn v. United Plant Guard Workers [Local 114, supra, 383 U.S. 53,] we held that an action for a malicious and injurious libel in the course of a labor dispute, although an unfair practice and prohibited by the Act, was not preempted since it was unprotected conduct and since remedying injury to reputation was of only slight concern to the national labor policy and was a matter deeply rooted in state law.” (Local 926, Int’l Union of Operating Engineers v. Jones, supra, 460 U.S. at p. 681, fn. 11.)
Defendants’ alternative assertion, that Overhill “failed to establish [it] suffered an actual breach of its relationship with the Union or actual damages as a result of the grievances that were filed” is waived, as this contention also amounts to an attack on the substantiality of the evidence in support of those points, and it is unaccompanied by any attempt to summarize or analyze the evidence pertaining to that point. Indeed, the passage quoted in the previous sentence is the entire argument. It is insufficient.
C.
Extortion
Defendants also challenge the court’s refusal to strike the cause of action for extortion, but largely base their argument on the assertion there is no evidence they engaged in any actions amounting to the wrongful use of “force or fear.” They note, for example that “[A] person, generally speaking, has a perfect right to . . . provide information to newspapers.” (Quoting Philippine Exp. & Foreign Loan Guar. Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1079.) But here again, defendants are simply assuming the “information” they chose to provide was accurate, and that no reasonable fact-finder could conclude it was defamatory. As we have already explained, we reject this argument.
We also reject the assertion that no extortion claim could be based upon a continuing threat by defendants to portray Overhill as having engaged in a mass employment termination for racist reasons, based upon nothing more than the fact they had already begun doing so. As defendants themselves acknowledge, their alleged threat was embodied in their continuing plan to “organize a lawful boycott [against Overhill].” Such a plan, if based upon false allegations of Overhill’s racist motivations for a mass firing, is not “lawful” and is clearly intended to impute disgraceful conduct to Overhill.
Moreover, if the plan were successful, it would clearly subject Overhill to additional future harm – the fact that some people may already view Overhill as having racist or ageist employment policies based upon defendants’ efforts does not mean that additional airing of those assertions (to a new audience or to further convince those who might have heard it already but were skeptical) would not cause further harm. To the contrary, a future “boycott” of Overhill is clearly further harm. Thus, such a threat, if used as a lever to force Overhill to submit to defendants’ demands that terminated employees be rehired, would qualify as extortion.
V.
Defendants Failed to Demonstrate the Court’s Evidentiary Rulings
Amounted to Reversible Error
Defendants’ final argument is that the court erred in various evidentiary rulings. They first assert the court erroneously sustained objections to portions of their own declarations, in which they purportedly claimed they had “read letters” regarding the terminations, “formed the belief that the discrepancy in social security numbers did not require termination” and engaged in “peaceful picketing.” They also purportedly claimed to have formed the belief that the terminations were merely “used as an opportunity to replace long-term, higher paid workers with part-time, lower paid workers.”[2] Presumably, this testimony was intended to support the assertion defendants acted in good faith when making the allegedly defamatory accusations at issue in this case.
But even assuming defendants’ characterization of the evidence is correct, we cannot conclude the court committed reversible error in excluding it. The testimony, as related by defendants in their brief, appears clearly conclusory, offering no real information as to how these employees “formed the belief” that a discrepancy in their social security number could not be a basis for termination, or if they also believed that ignoring the employer’s specific request to correct an invalid social security number was no basis for termination. Consequently, a “no foundation” objection to these conclusory claims appears well-taken. (Evid. Code, § 403.)
But even if the claims were technically admissible – defendants claim that individuals “need not provide facts upon which their beliefs were based” (citing Evid. Code, § 702) – the belief evidence is so weak we cannot conceive of how its inclusion would have been likely to change the outcome of the motion to strike. Moreover, Overhill’s burden in defeating the anti-SLAPP motion was merely to demonstrate a prima facie case – it was not required to conclusively negate the possibility that defendants (or some of them) might have acted with subjective good faith. As we have already explained, there was sufficient evidence to demonstrate defendants knew (or were recklessly indifferent to knowing) their allegedly defamatory statements did not accurately portray the circumstances of Overhill’s decision to terminate the employment of workers with invalid social security numbers. That is all Overhill was required to prove. The fact defendants themselves may claim otherwise simply does not change the analysis at this point in the proceedings.
Moreover, as Overhill points out, defendants have made no effort to establish the error, if any, was actually prejudicial. It is their burden on appeal to do so, and thus the claim of error is waived. (§ 475; See Cal. Const., art. VI, § 13.)[3]
Defendants also contend the court erred in failing to sustain some of their objections to the evidence submitted by Overhill. They identify the problematic evidence as “statements in the declarations of Diaz and Rudis, which Defendants challenged as hearsay, speculations, improper opinions and unsupported conclusions regarding Defendants’ state of mind in the ‘actual’ malice proof.” They do not specifically quote or otherwise fully identify the evidence they refer to. The failure to do so amounts to a waiver of the contention. “‘An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.’” (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862, quoting Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.)
Here, defendants merely attempt to characterize (rather than quote) only one portion of the allegedly objectionable evidence, and do not even disclose the content of the rest of what they objected to. This precludes any determination they presented a “reasoned argument” about the admissibility of that content.
With respect to the one portion of testimony actually delineated by defendants, we discern no potential for prejudice – and again, defendants make no effort to demonstrate such prejudice. Specifically, defendants claim the purported statements by witness Diaz, to the effect that she “knows, based on her own Latina heritage that the company does not discriminate,” were inadmissible. But again, because Overhill was only required to demonstrate a prima facie case, that purported statement is of no particular significance. Other evidence offered by Overhill was sufficient to demonstrate that its decision to terminate hundreds of workers was based upon reasons other than race, contrary to the claims made by defendants in their allegedly defamatory statements. Thus, Overhill demonstrated its prima facie case without regard to any opinion offered by a Latina employee, and the inclusion or exclusion of that statement was of no consequence.
In light of the foregoing, we are thoroughly convinced defendants have failed to demonstrate the court’s evidentiary rulings had any discernable impact on its decision to deny the bulk of their anti-SLAPP motion. Consequently, those rulings provide no basis for reversing the decision.
DISPOSITION
The order is affirmed. Overhill shall recover its costs on appeal.




BEDSWORTH, J.

I CONCUR:



RYLAARSDAM, ACTING P. J.

FYBEL, J., Dissenting.
I respectfully dissent.
The First Amendment to the United States Constitution guarantees a cherished freedom—the right to speak openly and freely. (U.S. Const., 1st Amend. [“Congress shall make no law . . . abridging the freedom of speech”].) Within the past few years, the United States Supreme Court has broadly protected speech in a public forum in the analysis of permissible speech by candidates for judicial office (Republican Party of Minnesota v. White (2002) 536 U.S. 765), and of corporations in elections (Citizens United v. Federal Election Commission (2010) __ U.S. __ [130 S.Ct. 876]). The anti‑SLAPP (strategic lawsuit against public participation) statute provides that it should be construed broadly to protect against “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).)
Defendants’ anti‑SLAPP motion should have been granted because none of defendants’ statements contains actionable defamation. The statements describe Overhill Farms, Inc.’s (Overhill), firing of a large number of Hispanic and female employees as “racist” and “discriminatory” in the context of vigorous public protests. Overhill failed to produce evidence showing defendants declared or implied a provably false assertion of fact within the meaning of the First Amendment and defamation law jurisprudence (see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19); thus, Overhill’s defamation claim fails as a matter of law. The majority opinion is an unprecedented and unwarranted extension of defamation law and is contrary to the First Amendment.
By this lawsuit, Overhill seeks to curb and chill employee protests. As acknowledged by the majority opinion, Overhill has “made clear that injunctive relief to prohibit future misconduct was its primary goal.” (Maj. opn., ante, at pp. 2‑3.) (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [“If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time”].) To illustrate this point, would it be actionable if the Los Angeles Times, the Orange County Register, Fox News, or MSNBC complained that actions by anyone were “racist” or “discriminatory”‌ Of course not. Employees complaining about their employer enjoy the same protection.
Considering defendants’ speech under the totality of the circumstances in this case, their speech too is constitutionally protected from a civil suit. In my view, Overhill is perfectly capable of ably presenting its side of the story in the public forum and has done so. Justice Brandeis’s statement in Whitney v. California (1927) 274 U.S. 357, 377 (conc. opn. of Brandeis, J.) is apt: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Defendants’ assertions might not be persuasive, but they are not actionable.
I.
Legal Principles That Govern This Case Have Been Misapplied in the Majority Opinion.
I begin my analysis by reviewing the legal points where the majority and I agree. I agree that in order to survive defendants’ anti‑SLAPP motion, Overhill had the burden of producing evidence to show defendants’ statements included a provably false assertion of fact under the totality of the circumstances pursuant to the United States Supreme Court’s decision in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (Franklin).) (Maj. opn., ante, at p. 3.) I also agree with the majority opinion’s conclusion that the term “racist” is “a word that lacks precise meaning, so its application to a particular situation or individual is problematic.” (Maj. opn., ante, at p. 15.) Indeed, Overhill itself states in its respondent’s brief, “Overhill has never contended that the use of the word ‘racist’ as a stand-alone epithet is actionable.”
As discussed in detail post, I part company with the majority opinion in two fundamental respects. First, my colleagues in the majority have incorrectly made this court the first state or federal appellate court in America, ever, to hold that the epithet “racist” constitutes a provably false assertion of fact as the basis of a claim of defamation. The majority attempts to argue that it is only so holding because the term “racist” was used in combination with other words. But those other words are not actionable and the majority does not and cannot argue otherwise. Whether the word “racist” is used as a noun or an adjective in combination with other words does not matter.
Second, in my view, the majority misapplies the United States Supreme Court opinions in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19 and Linn v. United Plant Guard Workers (1966) 383 U.S. 53, 58. Defendants’ communications in their dispute with their employer simply did not contain a provably false fact and the reasons for their allegations were disclosed. (Franklin, supra, 116 Cal.App.4th at p. 387.) The majority opinion’s parsing of the one word “discrepancies” in reaching its conclusion is not consistent with United States Supreme Court jurisprudence in defamation cases. I agree the employees’ claims might not be persuasive, but that does not make them defamatory.
II.
Overhill Failed to Produce Evidence Showing Defendants Made Any Provably False Assertion of Fact.
Overhill argues it produced prima facie evidence of defamation showing defendants made the following statements: (1) Overhill is a racist employer; (2) “Overhill targeted women, Hispanics and older workers for termination”; (3) “Overhill targeted long‑term employees and replaced them with part‑timers with no benefits”; (4) “Workers were fired for a social security number ‘discrepancy’ which is ‘not a cause for termination’”; and (5) “Overhill replaced the employees in violation of a union contract.” The majority opinion concludes defendants’ statements asserting that Overhill was racist and discriminated against Hispanics and women in its handling of the invalid social security numbers and defendants’ characterization of the problem with the social security numbers as a discrepancy showed they asserted a provably false statement of fact. The majority opinion does not conclude any of the other statements was defamatory so I do not analyze those statements as none of them contains a provably false statement of fact either.
A.
Defendants’ Statements Regarding the Termination of Employment of Hispanic and Female Employees Did Not Include a Provably False Assertion of Fact.
It is undisputed that Overhill terminated the employment of a large number of employees who were Hispanics and women. Overhill contends defendants defamed it by characterizing Overhill’s conduct as racist and discriminatory.
As the majority opinion acknowledges, the simple use of the terms “racist” and “discriminatory” does not constitute actionable defamation because such terms lack precise definition and are hard to prove. (See, e.g., Stevens v. Tillman (7th Cir. 1988) 855 F.2d 394, 402 [neither general statements charging a person with being racist, unfair, unjust, nor references to general discriminatory treatment, without more, constitute provably false assertions of fact]; Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655 (8th Cir. 1994) 39 F.3d 191, 196 [use of terms like “unfair” and “fascist,” the court stated, “‘is not to falsify facts’”].)
Here, defendants did not merely utter the terms “racist” and “discriminatory” in a vacuum. The press release states that Overhill engaged in racist firings and references the disparate impact the firings had on “immigrant women.” The leaflets state the discrepancies in social security numbers were used as a pretext to eliminate certain workers, and refer to Overhill’s conduct as “racist and discriminatory abuse against Latina women immigrants.”
In applying the totality of the circumstances test (Franklin, supra, 116 Cal.App.4th at pp. 385‑386), we consider not only the language used, but also its context. Here, without exception, defendants’ statements were made in the context of indisputably heated protests and demonstrations concerning Overhill’s decision to terminate the employment of a large number of employees who were identified on the IRS list and failed to provide valid social security or tax identification numbers.
In Linn v. United Plant Guard Workers, supra, 383 U.S. at page 58, the United States Supreme Court observed: “Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language.” The Supreme Court in Linn “‘acknowledge[d] that the enactment of § 8(c) [of the NLRA [National Labor Relations Act]] manifests a congressional intent to encourage free debate on issues dividing labor and management’ [citation] and that the National Labor Relations Board leaves ‘“to opposing parties the task of correcting inaccurate and untruthful statements.”’” (Sutter Health v. UNITE HERE (2010) 186 Cal.App.4th 1193, 1206, italics added.)[4]
Although the demonstrations and protests in the instant case did not involve a union and thus might not constitute a “labor dispute” in the traditional use of the phrase, the context is similar.[5] The audience to which the press release was addressed and to whom the leaflets were distributed outside Overhill’s plants and a Panda Express store would reasonably understand from the context that the use of the term “racist” as attributed to Overhill and its conduct constituted rhetorical hyperbole. This hyperbole reflected the demonstrators’ contempt, frustration, and desperation in connection with their employment situation. (Franklin, supra, 116 Cal.App.4th at p. 389 [the “‘contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed’”].)
But even if the audience of such publications might not construe such statements as rhetorical hyperbole, a closer examination of the language of the press release and the leaflets reveals the absence of any charge that Overhill made its decision to terminate certain employees’ employment because they were Hispanic or female. The press release and the leaflets expressly state that the impetus for the termination of employment decision was the problem of certain employees having discrepancies with their social security numbers, thus advising the reader that Overhill’s decision did not come out of thin air. A careful reading of these publications show the authors attribute Overhill with having made a racist decision because its decision to terminate the employment of employees with unresolved invalid social security numbers turned out to affect a large number of “Latina women immigrants.”
In addition, as acknowledged in the majority opinion, “‘[a] statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.’ [Citation.] The rationale for this rule is that ‘[w]hen the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author’s interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts.’” (Franklin, supra, 116 Cal.App.4th at p. 387.) Here, the press release and the leaflets disclosed the facts underlying their use of the word “racist” and reference to the termination of employment of Latina females.
Overhill does not dispute that its decision to terminate the employment of those employees who had unresolved invalid social security or tax identification numbers affected a large number of Hispanics and women. Overhill does not dispute that the Social Security Administration has stated that a discrepancy with a social security number, in and of itself, is not a terminable offense. Contrary to Overhill’s characterizations of defendants’ statements in the majority opinion and the respondent’s brief, none of the protest documents (the press release, signs, leaflets, flyers, and handbills) relied upon by Overhill states that it targeted Hispanics or Latinos in making its decision to terminate employment.
B.
Defendants’ Statements That Overhill Terminated Employment Because of “Discrepancies” in Social Security Numbers Is Not a False Statement.
The majority opinion reasons Overhill was defamed by the press release’s and the leaflets’ statements that the employees’ employment was terminated due to “discrepancies” in the social security numbers because the evidence shows they had invalid social security numbers that they failed to correct. But having an invalid social security number can be fairly characterized as having a discrepancy in the social security number. Even if the word “discrepancy” can be parsed so thin to perhaps mean something else, the First Amendment and defamation law do not support resting liability on so weak a basis. To the extent Overhill contends the audience of such statements might not understand the careful consideration Overhill gave to the employment termination decisions by defendants’ reference to social security number discrepancies, Justice Brandeis’s statement in Whitney v. California, supra, 274 U.S. at page 377 (conc. opn. of Brandeis, J.) is again apt: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Overhill was free to issue its own press release or distribute its own leaflets to communicate more details surrounding the discrepancies in the social security numbers.
As discussed ante, Overhill does not dispute that a discrepancy in a social security number might be insufficient “cause” for employment termination without more. The reference to the Social Security Administration’s statement that such discrepancies do not constitute such cause does not mean that Overhill was outside of its rights in making the employment termination decisions in this case. As discussed ante, there is no evidence defendants made any statement Overhill violated the collective bargaining agreement with the union in implementing the employment termination decisions. Overhill has therefore failed to establish a provably false statement of fact in this regard as well.
III.
The Trial Court Should Have Granted the Anti‑SLAPP Motion.
Because Overhill failed to make a prima facie showing defendants made a provably false assertion of fact, Overhill failed to show a probability of prevailing on its defamation claim. I do not condone the tone or content of the publications at issue in this case. The issue in this case is whether Overhill produced evidence defendants made a provably false assertion of fact and, for the reasons discussed ante, I disagree with the majority and conclude Overhill did not.
The merit of Overhill’s claims for intentional interference with prospective economic advantage, intentional interference with contractual relations, and extortion rise or fall on the merit of its defamation claim because all of these claims were based on wrongful conduct in the form of defendants’ making allegedly defamatory statements. I therefore do not need to address those claims separately as they should fall with the claim of defamation.
For all these reasons, the trial court should have granted the motion to strike in its entirety and the order should be reversed.




FYBEL, J.







Filed 12/14/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

OVERHILL FARMS, INC., Plaintiff and Respondent, v. NATIVO LOPEZ et al., Defendants and Appellants.

G042984 (Super. Ct. No. 30-2009-00125409) O R D E R

It appears that the opinion in the above-entitled matter meets the standards for publication set forth in California Rules of Court, rule 8.1105(c). On the court’s own motion, the opinion filed herein on November 15, 2010, is hereby ordered published in the Official Reports. (Cal. Rules of Court, rule 8.1105(b).)




BEDSWORTH, J.
I CONCUR:



RYLAARSDAM, ACTING P. J.



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