Filed 11/14/18 Padilla v. Jakubaitis CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Requests for Judicial Notice. Granted.

Pacific Premier Law Group and Arash Shirdel for Plaintiff and Appellant.

Frank Jakubaitis, in pro. per., for Defendant and Respondent.

* * *

INTRODUCTION

Plaintiff Carlos Padilla III (Padilla) appeals from the order granting defendant Frank Jakubaitis’s special motion to strike under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16,[1] which struck the defamation claim alleged against Jakubaitis from Padilla’s first amended complaint. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) Padilla contends the trial court erred by granting the anti-SLAPP motion because (1) the motion was untimely; (2) Jakubaitis lacked standing to file the motion because he had filed a bankruptcy petition; and (3) Padilla carried his burden of proving a probability of prevailing on his defamation claim. We reject each of Padilla’s arguments and affirm the order granting the anti-SLAPP motion striking the defamation cause of action.

BACKGROUND

I.

The Complaint; Jakubaitis’s Demurrer to the Complaint is Overruled; Padilla Files the First Amended Complaint; Jakubaitis Files for Bankruptcy.

In March 2012, Padilla filed a complaint, which named Jakubaitis, Jakubaitis’s wife, Tara Jakubaitis,[2] Wecosign, Inc. (Wecosign), and Tara Pacific, Inc., as defendants. Jakubaitis filed a demurrer to the complaint. A week later, Padilla filed a request for entry of default against Jakubaitis in the amount of $1,440,337.95. Although Jakubaitis had filed a demurrer, the clerk entered Jakubaitis’s default. At a hearing on August 7, 2012, the trial court set aside the default because the demurrer was timely filed, overruled Jakubaitis’s demurrer, and ordered Jakubaitis to file a responsive pleading within 10 days.

Jakubaitis did not file a responsive pleading by August 17, but on that day, Padilla served Jakubaitis with the first amended complaint. Jakubaitis did not file a responsive pleading to the first amended complaint.

In September 2012, Padilla filed a request for entry of default against Jakubaitis. The clerk entered Jakubaitis’s default in the amount specified in the request on September 24.

In November 2012, Padilla requested that default judgment be entered against Jakubaitis in the amount of $3,810,635.63. In January 2013, Jakubaitis’s counsel filed a notice that a bankruptcy petition had been filed on Jakubaitis’s behalf on January 9, 2013.

II.

Default Judgment is Entered Against Jakubaitis; Padilla Obtains Relief From the Stay Imposed by the Bankruptcy Court.

Our record does not reflect whether a default prove-up hearing was held.

Nevertheless, on January 25, 2013, the trial court signed a four‑page judgment, prepared by Padilla’s counsel, stating in part that default judgment was entered awarding Padilla several million dollars in damages against Jakubaitis. The judgment also awarded Padilla attorney fees and costs.

In June 2013, the United States Bankruptcy Court for the Central District of California granted Padilla’s uncontested motion for relief from the automatic stay imposed after Jakubaitis filed his bankruptcy petition. The stay was “[a]nnulled retroactively to the date of the bankruptcy petition filing.”

III.

The Trial Court Vacates the Default Judgment Entered Against Jakubaitis, But Not His Default; Default Judgment Is Again Entered Against Jakubaitis; Jakubaitis Appeals and We Reverse.

In June 2013, Jakubaitis filed a motion to vacate the default and default judgment entered against him, pursuant to section 473, subdivision (d). The trial court granted Jakubaitis’s motion to set aside the default judgment. The court denied, however, Jakubaitis’s motion to set aside the default because Jakubaitis had failed to file a responsive pleading to the original complaint within 10 days of the court overruling his demurrer. The court explained, “[t]he complaint was not amended in any material way as to Frank Jakubaitis and therefore they are not substantive changes with respect to the causes of action against him. As a result, the judgment against him was not ‘opened up’ by the amending of the complaint.”

Again without reference in the record to any prove‑up hearing, on November 13, 2013, judgment was entered in favor of Padilla and against Jakubaitis in the total amount of $781,095.61.

Jakubaitis filed a motion to render the default and default judgment void under section 473, subdivision (d). The trial court denied the motion.

In December 2014, Jakubaitis timely appealed. In our unpublished opinion in Padilla v. Jakubaitis (Nov. 9, 2015, G051094) (Padilla I), we reversed the default judgment and directed the trial court to set aside the default entered against Jakubaitis. We concluded the request for default, upon which the court clerk entered Jakubaitis’s default, contained several facial and fatal flaws rendering the default and subsequent default judgment void. (Ibid.)

IV.

The Trial Court Sets Aside Jakubaitis’s Default and Default Judgment and Grants Jakubaitis’s Ex Parte Application to File an Anti-SLAPP Motion.

In September 2016, trial court issued an order setting aside the default and default judgment entered against Jakubaitis, pursuant to our decision in Padilla I. The same month, Jakubaitis applied ex parte for permission to file an anti-SLAPP motion challenging the 32nd cause of action for defamation alleged against Jakubaitis in the first amended complaint. Padilla opposed the ex parte application.

The trial court granted Jakubaitis’s ex parte application, concluding that Jakubaitis still had time to file an anti-SLAPP motion after Padilla filed the first amended complaint when his default was entered against him. The trial court stated that, alternatively, it was exercising its discretion under section 425.16, subdivision (f) to permit the filing of an anti-SLAPP motion.

V.

Jakubaitis Files the Anti-SLAPP Motion to Strike the Defamation Cause of Action; Padilla Files an Opposition.

Jakubaitis filed the anti-SLAPP motion to strike the defamation cause of action, arguing the alleged conduct underlying that claim was protected under section 425.16, subdivision (e)(2) and by the litigation privilege, and Padilla otherwise failed to show a probability of prevailing on the merits.

A.

Jakubaitis’s Evidence

The anti-SLAPP motion was supported by Jakubaitis’s declaration which is summarized as follows. Padilla’s employment by Wecosign was terminated in May 2011 for cause, and “most notably for conduct damaging to Wecosign Inc., its employees and its investors.” Jakubaitis stated: “By divulging company proprietary information to third-parties, more specifically clients of Mr. Arash Shirdel [Padilla’s trial and appellate counsel], a carbon-copy company ‘letuscosign.com’ was formed and operated from . . . Shirdel’s Newport Beach law office, a few miles away from Wecosign Inc.’s Santa Ana office location.”

Jakubaitis’s declaration also stated that beginning in July 2011, Wecosign became the subject of lawsuits brought by shareholders who were “familiar with Mr. Padilla when he was employed by the company.” Jakubaitis stated that “upon the advice of Wecosign’s corporate counsel, a federal lawsuit was initiated against Mr. Padilla for alleged violations of 18 U.S.C. section 1961 . . . aka RICO, Conspiracy to Commit RICO, and allegations for Conversion, Breach of Non-Disclosure Agreement, Breach of Non-Solicitation Agreement, Relief for California Statutory Unfair Competition and Relief for California Common Law Unfair Competition.” Padilla filed a federal countersuit which he amended to add a defamation claim against Jakubaitis based on two communications (dated December 1, 2011 and December 5, 2011, respectively). Jakubaitis stated these two communications were written updates to Wecosign shareholders informing them of the status of litigation with Padilla that could affect the value of their investments as owners of the corporation.

The parties to the federal case agreed to dismiss the federal lawsuits and refile in state court. In March 2012, Padilla filed the instant action in which he reiterated his defamation allegations against Jakubaitis.

In his declaration, Jakubaitis added that well before the parties’ litigation began in December 2009, “Wecosign Inc., received approval for public trading of its stock on the Over-the Counter-Bulletin-Board (OTCBB) . . . and had approximately 100+ shareholders.” Jakubaitis stated that, in his role as chief executive officer of Wecosign Inc., he maintained an open door policy and considered communications with shareholders a top priority; he communicated regularly with the shareholders to keep them abreast of issues related to their investments.

B.

Padilla’s Opposition

Padilla filed an opposition to the anti-SLAPP motion in which he argued (1) the motion was untimely and otherwise improperly brought because Jakubaitis had been ordered to answer; (2) defamatory speech is not protected under the anti-SLAPP statute; (3) the defamation claim was not brought to chill the exercise of free speech; (4) the litigation privilege did not apply; and (5) Padilla would prevail at trial on the defamation claim.

Padilla’s opposition to the anti-SLAPP motion was supported by his declaration, which we summarize as follows. In July 2011, Padilla resigned from his employment at Wecosign because Jakubaitis refused to pay Padilla for work he had performed pursuant to their agreement. In October 2011, Jakubaitis filed a federal lawsuit, which included RICO claims against Padilla, which Padilla believed were asserted for the purpose of scaring and terrorizing Padilla. In response, Padilla filed a countersuit alleging breach of contract claims based on transactions he had entered into with Jakubaitis. Padilla stated that after he served the countersuit, Jakubaitis sent correspondence to “various parties” in which he “ma[de] up statements in order to deter [Padilla] from continuing the lawsuit.” Padilla thereafter instructed his attorney to amend the lawsuit to add a defamation claim.

Padilla’s declaration further stated that Jakubaitis sent a communication dated December 1, 2011 to “people associated” with Padilla as friends or coworkers. In that communication, Jakubaitis falsely stated Padilla had had an improper relationship with an investor, Padilla often disappeared from work, Padilla would “essentially” wash in the sink at work, Padilla’s mother was on her deathbed, Padilla was beat up outside of his house because he owed some people money, and Padilla’s life was always in jeopardy and he was always scared and in hiding.

Padilla’s declaration also stated that in a letter dated December 5, 2011, which was sent to people Padilla knew, Jakubaitis falsely stated that Padilla had derailed two mergers, harassed coworkers, and attempted to manipulate investors.

VI.

The Court Grants the Anti-SLAPP Motion and Orders the Defamation Claim Struck from the First Amended Complaint; Padilla Appeals.

At the hearing, the trial court challenged Padilla’s counsel to persuade the court that Jakubaitis’s comments in his communications were not connected to the underlying litigation. After Padilla’s counsel failed to do so, the court stated, “[t]he comments were made to interested parties about the pending litigation designed to keep investors comfortable and not jumping ship over this suit, which was for breach of contract.” The court explained the communications were telling such individuals “[d]on’t worry about this pending litigation. These are the reasons.” The court stated it found the communications sufficiently connected to the litigation.

In its minute order, the trial court stated it found Padilla’s defamation claim was based on Jakubaitis’s e-mail dated December 1, 2011 and his letter dated December 5, 2011, and that the statements contained in those communications constituted protected activity within the meaning of section 425.16 which were “(1) covered by the litigation privilege, (2) nonactionable opinions, and/or (3) not defamatory per se.” The court granted the anti-SLAPP motion to strike the defamation claim. Padilla appealed.

REQUESTS FOR JUDICIAL NOTICE

Padilla filed a request for judicial notice in which he requested this court to take judicial notice of certain records of the litigation between the parties in federal court and certain filings in Jakubaitis’s bankruptcy case. Jakubaitis filed an opposition to Padilla’s request in which Jakubaitis argues Padilla’s request failed to comply with certain requirements for such requests, some of the proffered documents were not certified by the federal court, and some of the proffered documents were not presented to the trial court in its determination of Jakubaitis’s anti-SLAPP motion. Jakubaitis does not claim in his opposition that any of the subject documents are not accurate records of “any court of record of the United States” within the meaning of Evidence Code section 452, subdivision (e)(2). We grant Padilla’s request for judicial notice. (Id., § 459, subd. (a).)

Jakubaitis filed his own request for judicial notice in which he requested that this court take judicial notice of certain certified United States District Court records as well as our unpublished opinion in Padilla I. Padilla has not filed any opposition to Jakubaitis’s request. We grant Jakubaitis’s request for judicial notice. (Evid. Code, §§ 452, subd. (d)(2), 459.)

DISCUSSION

I.

The Trial Court Did Not Abuse Its Discretion by Granting Jakubaitis’s Ex Parte Application Seeking Leave to File the Anti-SLAPP Motion.

Padilla argues that the trial court should not have granted Jakubaitis’s application to file the anti-SLAPP motion because it was time-barred. In his appellate opening brief, Padilla argues the motion was time-barred because it was filed over four and a half years after the complaint was filed, this court’s reversal in Padilla I did not give Jakubaitis a “clean slate, but the case picks up exactly where it left off,” the motion was filed more than 60 days after remand of the case from this court, and the filing of such a motion “defeats the purpose of the anti-SLAPP statutes.”

In the trial court’s minute order granting Jakubaitis’s application to file the anti-SLAPP motion (which Padilla did not include in the appellant’s appendix), the court acknowledged that a special motion to strike must be filed within 60 days after service of the operative pleading and that the time period starts anew each time the operative pleading is amended in any substantive way. The trial court found the motion timely because after Padilla filed the first amended complaint, Jakubaitis’s default was taken before he could file an anti-SLAPP motion and that his default was not set aside until four years later.

We do not need to address whether the trial court’s analysis of the timeliness of the filing of the anti-SLAPP motion was correct because even assuming the motion was not timely, the court also stated it exercised its discretion under section 425.16, subdivision (f)[3] to permit the filing of the anti-SLAPP motion.

In San Diegans for Open Government v. Har Construction (2015) 240 Cal.App.4th 611 at page 624, the appellate court stated: “A court ‘enjoys considerable discretion’ in determining ‘whether to allow [a] late filing of an anti-SLAPP motion.’ [Citation.] However, the court must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60-day deadline is the general rule. [Citation.] ‘[T]he Legislature’s act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint.’ [Citation.] Thus, a ‘trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60-day deadline.’ [Citation.] In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings. [Citations.] Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff.”

Citing San Diegans for Open Government v. Har Construction, supra, 240 Cal.App.4th 611, the trial court stated in its minute order: “The proposed anti-SLAPP motion is only directed at one of the 34 causes of action in the FAC, and it happens to be the one cause of action which is based on communications made to interested persons while the parties were already engaged in litigation with one another. On its face the defamation claim appears to arise from protected activity, to wit: speaking to those with interest in pending litigation. [Citation.] Plaintiff cites Du Charme v. International Broth. of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, for the proposition that such gossip must involve a matter of public interest, but that is not always the case. [Citation.] In any event, to resolve that question requires digging deep into the merits of the anti-SLAPP motion. Right now, this Court is only concerned with the merits of the application to late-file the anti-SLAPP motion. Although a Court is to consider the merits of the proposed anti-SLAPP motion in deciding whether to permit its late-filing, that is as a cursory review and not the in-depth analysis that goes along with a ruling on the anti-SLAPP motion.”

The minute order shows the court was mindful of the factors to be considered in exercising its discretion whether to allow an anti-SLAPP motion to be filed, and in particular whether the purposes of the statute would be satisfied by allowing the motion to be filed. Although a significant period of time had passed since Padilla filed his complaint, this case has had a “remarkably circuitous procedural history” (Padilla I), which has included a successful appeal from a default judgment and concurrent bankruptcy proceedings. Padilla’s defamation claim rightly appeared to the court to be squarely based on activity protected by the anti-SLAPP motion. Padilla does not argue he suffered undue prejudice by the court’s consideration of the anti-SLAPP motion. It does not appear he suffered any prejudice other than losing the motion on its merits. We cannot conclude that on this record, the trial court abused its discretion by allowing Jakubaitis to file the anti-SLAPP motion.

II.

Padilla Fails to Show Jakubaitis Lacked Standing.

Padilla argues, for the first time on appeal, the trial court erred by granting the anti-SLAPP motion because Jakubaitis lacked standing to file that motion. Specifically, Padilla argues that because Jakubaitis previously filed for bankruptcy under Chapter 7, the right to file an anti-SLAPP motion constituted an asset, within the meaning of section 541 of title 11 of the United States Code, which belonged to the bankruptcy estate and not to Jakubaitis. Padilla contends that Jakubaitis was required to first file a motion in his bankruptcy case and obtain an order from the bankruptcy court showing that the right to so file an anti-SLAPP motion had been abandoned.

As we stated in Padilla I, the trial court granted relief from the automatic stay imposed by Jakubaitis’s filing for bankruptcy under Chapter 7. Padilla does not contend that the bankruptcy court reimposed a stay, and does not otherwise contend the parties are limited in their ability to litigate Padilla’s claims in the first amended complaint as alleged against Jakubaitis by any order of the bankruptcy court.

In support of his argument, Padilla cites numerous cases for the proposition that a debtor’s cause of action that accrued in favor of the debtor before the debtor filed for bankruptcy constitutes an asset of the bankruptcy estate. Jakubaitis’s conduct of defending himself against Padilla’s defamation claim by filing an anti-SLAPP motion is different from a debtor impermissibly prosecuting a claim that belongs to the bankruptcy estate. Furthermore, section 541 of title 11 of the United States Code describes the type of “property” that becomes part of a debtor’s bankruptcy estate upon the commencement of a bankruptcy case, and that description does not appear to include filing defense motions.[4]

Padilla has failed to explain how the filing of an anti-SLAPP motion to challenge a cause of action constitutes property of Jakubaitis’s bankruptcy estate within the meaning of the United States Code. That Jakubaitis might be awarded prevailing party attorney fees and costs upon a successful motion does not convert his defensive motion into property over which he has no authority. Padilla has otherwise failed to carry his burden of designating a sufficient appellate record, citing relevant legal authority, and providing adequate legal analysis to enable this court to conclude Jakubaitis lacked standing to file an anti-SLAPP motion.

III.

The Trial Court Did Not Err by Granting the Anti-SLAPP Motion to Strike the Defamation Claim from the First Amended Complaint.

A.

Section 425.16 and Standard of Review

Section 425.16 provides for a special motion to strike “[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 Constitution or the California Constitution in connection with a public issue.” (Id., subd. (b)(1).) “Section 425.16, subdivision (b)(1) requires the court to engage in 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 defendant’s 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. [Citation.] 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. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.’” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) To establish a probability of prevailing on a claim, “‘the 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.”’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88‑89.)

We independently review the trial court’s order denying an anti‑SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325‑326.) “‘We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” [Citation.] However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.”’” (Id. at p. 326.) We further observe that the anti‑SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)

B.

Jakubaitis Met His Burden of Demonstrating the Acts Underlying Padilla’s Defamation Claim Arose from Protected Activity.

A defendant can meet his or her burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the categories of section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Section 425.16, subdivision (e) provides, in relevant part: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: . . . (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.”

Padilla alleged he was defamed by Jakubaitis in the form of two separate written communications from Jakubaitis to Wecosign shareholders updating them regarding litigation with Padilla. In Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043 at page 1055, the defendants filed an anti-SLAPP motion challenging a defamation claim that was based on statements made in an e-mail. A panel of this court held that the e-mail “constitutes a litigation update, which describes the parties’ contentions and court rulings, and is directed to individuals who had some involvement in the parties’ litigation. ‘Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to “‘the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.’” [Citations.] Thus, it has been established for well over a century that a communication is absolutely immune from any tort liability if it has “‘some relation’” to judicial proceedings.’ (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5-6 [‘Because one purpose of the letter was to inform members of the association of pending litigation involving the association, the letter is unquestionably “in connection with” judicial proceedings [citation] and bears “‘some relation’” to judicial proceedings’].) [¶] The trial court therefore correctly concluded the e-mail falls within the parameters of section 425.16, subdivision (e)(2) in that it was made ‘in connection with an issue under consideration or review by a . . . judicial body.’” (Ibid.)

Similarly, as alleged in the first amended complaint, the communications which contained allegedly defamatory statements by Jakubaitis constituted litigation updates that were made in connection with an issue under consideration by a judicial body within the meaning of section 425.16, subdivision (e)(2).

The December 1, 2011 e-mail from Jakubaitis begins: “Dear Shareholder I wanted to bring you up to date of the recent developments. While Jeff and I are working very hard, Carlos Padilla III, the former CIO of WECOSIGN Inc. has filed a Federal Law Suit against the company and its officers, in response to our lawsuit for RICO VIOLATIONS.” The e-mail summarizes Jakubaitis’s understanding of the facts and circumstances surrounding the parties’ claims against each other and instances of bizarre behavior by Padilla that Jakubaitis explained led to the “[b]ottom line we could no longer tolerate his stories and let him go.” Jakubaitis concludes his e-mail stating: “If anyone ever ran a company, they would know how outrageous these allegations are. I will contact you and give you more details as they develop.”

The December 5, 2011 letter is entitled “Share holder update.” The letter provides a summary of facts regarding other individuals with whom Wecosign was having a dispute and Padilla’s relationship to the trouble Wecosign had with those individuals. The letter states that Padilla filed a cross-complaint against Wecosign and other defendants in response to the federal lawsuit filed by Wecosign against Padilla and states that Padilla’s claims are “naturally baseless and without merit.” The letter states “Wecosign will not settle with Padilla . . . for anything.”

Padilla does not argue those two communications were sent to anyone other than Wecosign shareholders who were directly affected by the status of the litigation. Padilla does not argue in his appellate briefing that Jakubaitis failed to meet his initial burden of showing that the communications underlying Padilla’s defamation claim arose from protected activity within the meaning of section 425.16, subdivision (b)(1). The burden therefore shifted to Padilla to show a probability of prevailing on the merit of his claim.

C.

Padilla Failed to Carry His Burden of Showing a Probability of

Prevailing on His Claim.

As discussed ante, once Jakubaitis met his burden of demonstrating his conduct underlying Padilla’s defamation claim constituted protected activity under section 425.16, subdivision (e), the burden shifted to Padilla to demonstrate that his defamation claim was “‘“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.”’” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) “The plaintiff cannot rely on the allegations of the complaint alone, but must present admissible evidence.” (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 45.)

As discussed ante, the litigation privilege of Civil Code section 47 is construed broadly and it has been “established for well over a century that a communication is absolutely immune from tort liability if it has “‘some relation’” to judicial proceedings.” (Contemporary Services Corp. v. Staff Pro Inc., supra, 152 Cal.App.4th at p. 1055.) In his opening appellate brief, Padilla argues that the following statements contained within the two subject communications were not only false but without connection to the parties’ litigation so as to take them outside the scope of the litigation privilege: (1) Padilla was beat up by a guy outside his house for money; (2) Padilla washed his hair in the office sink; (3) Padilla’s mother was dying as of November 17, 2011; (4) Padilla’s “life was always in jeopardy o[f] some sort” and he always seemed to be hiding from someone; (5) Padilla was dating a particular investor; and (6) Padilla had derailed two merger deals.

Reading the above cited references in the context of Jakubaitis’s communications, it is clear that they were made for the purpose of assuring Wecosign shareholders that the decision to terminate Padilla’s employment with Wecosign was the correct one (even though it resulted in Padilla filing his cross-complaint in federal court against Wecosign and the instant action in state court) and that the company will prevail in defending the claims brought by Padilla, who behaved in a paranoid and bizarre manner. We conclude the statements were sufficiently connected to the litigation between the parties to trigger the application of the litigation privilege. Consequently, Padilla failed to show a probability of prevailing on his defamation claim against Jakubaitis and the anti-SLAPP motion was properly granted.

DISPOSITION

The order is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.