Aragon v. Lazo

Filed 1/14/09 Aragon v. Lazo CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf M. Treu, Judge. Affirmed.

Bekken Law Group, Robert J. Bekken and James Moneer; Jensen & Associates and Paul Rolf Jensen for Plaintiff and Appellant.

Rosen Saba, James R. Rosen, Ryan D. Saba and Adela Carrasco for Defendant and Respondent.

_______________________

Upon resigning from her employment with Jiffy Lube International, Inc. (Jiffy Lube), Respondent Dorothy Lazo (Lazo) complained to the company that she had been sexually harassed by her former supervisor, Appellant Oscar Aragon (Aragon). Following an internal investigation of Lazos complaint, Jiffy Lube concluded that Lazo and Aragon had engaged in a consensual romantic relationship, but terminated Aragons employment for, in part, his failure to report the relationship to the company. Aragon thereafter filed a civil action against Lazo for defamation, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage. In response to Aragons complaint, Lazo brought a special motion to strike pursuant to Code of Civil Procedure section 425.16.[1] The trial court granted the motion as to the causes of action for intentional and negligence interference with prospective economic advantage on the grounds that Aragons complaint arose from acts in furtherance of Lazos constitutional right of petition and that Aragon failed to prove a probability of prevailing on these claims. Aragon now appeals the trial courts order partially granting the special motion to strike. For the reasons set forth below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I.                   Lazos Internal Complaint Against Aragon

Aragon and Lazo were both employed by Alamitos Enterprises, LLC, which does business as Jiffy Lube. Aragon was a store manager at Jiffy Lube from 1991 until the termination of his employment in 2007. Lazo initially began working at Jiffy Lube as a cashier in October 2004. In July 2005, Lazo left the company in California to move out-of-state. She later returned to California and was re-hired by Jiffy Lube in January 2006. At all times during Lazos employment with Jiffy Lube, Aragon was Lazos supervisor.

Both Aragon and Lazo received copies of Jiffy Lubes anti-harassment policy during the course of their employment with the company. In addition to prohibiting the unlawful harassment of employees, the policy provided that all complaints of harassment that were reported to management would be promptly investigated and that corrective action would be taken where warranted. As a supervisor, Aragon also received and was required to sign a separate policy against harassment by members of management. That policy specifically prohibited supervisors from dating, engaging in any sexual activity with, or making any sexual advances toward subordinate employees. It further provided that any violation of the policy would subject the supervisor to immediate termination.

According to Lazo, Aragon sexually harassed and molested her throughout her two periods of employment with Jiffy Lube. According to Aragon, he engaged in an entirely consensual sexual relationship with Lazo commencing in July 2005. Aragon asserted that he and Lazo continued to talk on the telephone after she moved out of state and that they resumed their relationship in January 2006 when she returned to California. He further alleged that he purchased various gifts for Lazo which she freely accepted and that they took an overnight trip together in September 2006. Aragon also claimed that, throughout their relationship, Lazo often made sexually suggestive remarks and touched Aragon in a sexually provocative manner both during and outside of work. Approximately one year after Lazo was re-hired by Jiffy Lube, she applied for a job with another company and accepted that companys offer of employment in or about January 2007.[2]

On February 7, 2007, Lazo called the Human Resources Director at Jiffy Lube and informed the Director that she was resigning from her employment because of a personal issue with one of the employees. When the Human Resources Director inquired as to the issue, Lazo initially refused to provide any further information, but she eventually agreed to discuss the matter that was prompting her to resign. Lazo advised the Human Resources Director that Aragon had sexually harassed her throughout her employment with Jiffy Lube. Lazo also reported that Aragon had forcibly touched her in a sexual manner and had made her engage in certain sexual acts both during and after work.

After hearing Lazos allegations of harassment, the Human Resources Director asked Lazo if she could visit her at her home to gather additional information. Lazo initially consented to the visit, but later called the Human Resources Director and indicated that she was going to file a complaint with the police. When the Human Resources Director stated that she would accompany Lazo to the police station, Lazo said that she was not going to file police charges, but that people from her church had advised her not to talk to anyone from the company. The Human Resources Director asked Lazo if she wanted to return to work at Jiffy Lube in a protected environment. Lazo responded that her church and her attorney had advised her not to return. The Human Resources Director then offered to assist Lazo in finding another job outside of the company, but Lazo declined her offer. On February 10, 2007, three days after Lazos initial complaint to Human Resources, her attorney sent Jiffy Lube a demand letter, seeking compensation for Lazo as a result of Aragons alleged conduct.[3]

Jiffy Lube thereafter conducted an internal investigation of Lazos sexual harassment complaint. During the investigation, Aragon admitted that he had a consensual sexual relationship with Lazo and that he had failed to report the relationship to the company. Jiffy Lube also interviewed other employees concerning their observations of the relationship between Aragon and Lazo, and each of the witnesses corroborated Aragons account that the relationship was consensual. Based on its investigation, the company concluded that Aragon and Lazo had engaged in an entirely consensual relationship and that Lazos allegations of unlawful harassment by Aragon were unfounded. However, notwithstanding its conclusion that no unlawful harassment had occurred, the company decided to terminate Aragons employment.

In its February 28, 2007 notice of termination to Aragon, Jiffy Lube indicated that Aragon was being discharged because he had carried on a consensual relationship with another employee without the knowledge of the company, which in turn caused the company to lose trust in Aragons ability to continue his employment. The final decision-maker with respect to Aragons termination was Robert Curry (Curry), the companys Chief Financial Officer. In a September 10, 2007 deposition, Curry testified that Jiffy Lube had decided to discharge Aragon for three reasons: (1) Aragon had a consensual sexual relationship with a subordinate employee in violation of company policy; (2) Aragon failed to report the relationship to the company; and (3) Aragons failure to report the relationship resulted in Lazo making a claim.[4] Jiffy Lube terminated Aragons employment effective February 28, 2007.

II.                Aragons Civil Action Against Lazo

On May 18, 2007, Lazo filed an administrative complaint of harassment with the California Department of Fair Employment and Housing (DFEH). She received a right-to-sue notice from the DFEH on July 2, 2007. On July 24, 2007, before any civil litigation had commenced, Lazo was deposed by Jiffy Lube. The parties then participated in a private voluntary mediation three days later on July 27, 2007.

On the same day as the mediation, Aragon filed a civil action against Lazo in Los Angeles County Superior Court. Aragons verified complaint asserted three causes of action against Lazo for slander per se, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage. In his complaint, Aragon alleged that Lazo made a knowingly false complaint of sexual harassment to Jiffy Lube and did so with the intent of causing harm to Aragon and obtaining a financial recovery from the company. On September 19, 2007, Lazo brought a special motion to strike Aragons complaint pursuant to section 425.16. The following day, Lazo also filed a civil action against both Jiffy Lube and Aragon for sexual assault and sexual harassment in violation of the California Fair Employment and Housing Act (FEHA).

The trial court heard Lazos special motion to strike on October 19, 2007. After taking the matter under submission, the court granted the motion to strike the causes of action for intentional and negligent interference with prospective economic advantage, and denied the motion to strike the cause of action for slander per se. The court ruled that Aragons lawsuit arose from protected activity because Lazos internal complaint of harassment to Jiffy Lube was made in anticipation of litigation. With respect to the claims for intentional and negligent interference with prospective economic advantage, the court further concluded that Aragon had failed to demonstrate a probability of prevailing on these claims because he could not prove that but for Lazos false complaint, his employment with Jiffy Lube would have continued. With respect to the claim for slander per se, however, the court concluded that Aragon had shown a probability of success because slander per se did not require proof of actual damages. In partially granting the special motion to strike, the court also awarded attorneys fees to Lazo in the amount of $18,263.33, which was two-thirds of the total fees sought. Following the trial courts ruling, Aragon filed a timely notice of appeal.[5]

DISCUSSION

I.                   Standard Of Review

Section 425.16 provides, in pertinent part, that [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1).) The purpose of the statute is to encourage participation in matters of public significance and to ensure that such participation is not chilled through an abuse of the judicial process. ( 425.16, subd. (a).) The provisions of section 425.16 must be construed broadly to effectuate the statutes purpose. ( 425.16, subd. (a).)

Resolution of a section 425.16 special motion to strike requires a two-step process.  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the defendant must make a threshold showing that the challenged cause of action arises from constitutionally protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant satisfies this prong, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits of the action. (Rusheen v. Cohen, supra, at p. 1056; Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67.) We review a trial courts ruling on a special motion to strike de novo, conducting an independent review of the entire record. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)  

II.                Arising From Constitutionally Protected Activity

A cause of action arises from protected activity within the meaning of section 425.16 if the conduct of the defendant on which the cause of action is based was an act in furtherance of the defendants right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Section 425.16, subdivision (e) describes four categories of conduct that constitute protected activity under the statute: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. ( 425.16, subd. (e).) If the defendants alleged acts fall within the first two prongs of section 425.16, subdivision (e), the defendant is not required to independently demonstrate that its conduct is connected to an issue of public interest. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)

As set forth in Aragons complaint, the specific acts on which Aragon is basing his claims for intentional and negligent interference with prospective economic advantage are (1) Lazos oral complaint of sexual harassment to Jiffy Lubes Human Resources Director on or about February 7, 2007, and (2) Lazos demand letter to Jiffy Lube sent by her legal counsel on or about February 10, 2007.[6] Lazo argues that these communicative acts constitute protected activity under Section 425.16, subdivision (e)(1) or (e)(2) because they were made in anticipation of litigation, and thus, are absolutely privileged under Civil Code section 47, subdivision (b). Aragon, on the other hand, asserts that these acts merely refer to Lazos initial complaint of harassment to Jiffy Lubes Human Resources Director, and therefore, pertain to the companys private, internal investigation of Lazos complaint rather than any litigation-related activity. The parties arguments accordingly require us to address the relationship between section 425.16s protection of statements made before, or in connection with an issue under consideration by, a judicial body ( 425.16, subd. (e)(1) and (2)) and Civil Code section 47s litigation privilege (Civ. Code, 47, subd. (b)).

The scope of protections afforded to litigation-related communications under section 425.16 and Civil Code section 47, subdivision (b) are not identical. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479.) Indeed, the two statutes are substantively different statues that serve quite different purposes . . . . (Flatley v. Mauro (2006) 39 Cal.4th 299, 322.) Nevertheless, the California Supreme Court repeatedly has recognized the relationship between the litigation privilege and the statute. (Ibid.; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1121.) As the Supreme Court has explained, courts often have looked to the litigation privilege as an aid in construing the scope of section 425.16, subdivision (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry - that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision (e)(1) and (2). (Flatley v. Maura, supra, at pp. 322-323; see also Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770 [The [litigation] privilege informs interpretation of the arising from prong of the anti-SLAPP statute . . . .].)

The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a publication or broadcast made as part of a judicial proceeding is privileged. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.] (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege is absolute in nature and applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. (Ibid.) It is also held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. (Ibid.) Moreover, because it is absolute, the privilege applies irrespective of any malice or intent to cause injury. (Rusheen v. Cohen, supra, 37 Cal.4th at 1063; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.)

Although the express language of Civil Code section 47, subdivision (b) applies solely to communications made in a judicial or other official proceeding, the litigation privilege has been extended to pre-litigation communications that have some relationship to an anticipated lawsuit. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194; Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 262.) Specifically, California courts have held that a pre-litigation statement is protected by the litigation privilege when the statement is made in connection with a proposed litigation that is contemplated in good faith and under serious consideration. (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1251, Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1378-1379; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35-36.) There is no requirement that a complaint be drafted or in the process of being drafted for the privilege to apply. (Aronson v. Kinsella, supra, at p. 268.) Nor is there any requirement that the pre-litigation statement itself be made without malice or intent to injure. (Action Apartment Assn., Inc. v. City of Santa Monica, supra, at p. 1251.) Rather, the test of good faith and serious consideration is addressed to the requirement that the communication have some connection or logical relation to the action. (Ibid; Aronson v. Kinsella, supra, at p. 266.)

As with the litigation privilege, [c]ourts have adopted a fairly expansive view of litigation-related conduct to which section 425.16 applies. [Citation.] (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125.) Thus, statements, writings and pleadings in connection with civil litigation generally are covered by the statute. (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1478.) Additionally, statements made in anticipation of litigation often fall within the ambit of section 425.16 as protected communications made in connection with an issue under consideration by a judicial body. (Briggs v. Eden Council for Hope & Opportunity, supra, at p. 1115; Feldman v. 1100 Park Lane Associates, supra, at pp. 1480-1481; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36-37.) The Supreme Court has carved out an exception for certain pre-litigation conduct where the defendant concedes or it is conclusively established that the conduct is illegal as a matter of law. (Flatley v. Mauro, supra, 39 Cal.4th at p. 325 [pre-litigation communications constituting criminal extortion as a matter of law are not protected by the statute].) In general, however, statements made in preparation for or in anticipation of bringing an action that is contemplated in good faith and under serious consideration constitute protected activity under section 425.16. (Id. at p. 322, fn. 11 [Communications preparatory or in anticipation of bringing an action or other official proceeding are protected by section 425.16]; Briggs v. Eden Council for Hope & Opportunity, supra, at p. 1115 [[J]ust 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[,] . . . such statements are equally entitled to the benefits of section 425.16.]; Rohde v. Wolf, supra, at p. 36 [Statements made in anticipation of litigation contemplated in good faith and under serious consideration fall within the scope of section 425.16.].)

In this case, we conclude that Lazo has satisfied her threshold burden of showing that her internal complaint to Jiffy Lube is protected under section 425.16 as a statement made in connection with an issue under consideration or review by . . . a judicial body. ( 425.16, subd. (e)(2).) First, as alleged in Aragons complaint, when Lazo initially reported to Jiffy Lube that she had been sexually harassed, she informed the Human Resources Director that her attorney had advised her not to return to work.[7] Second, within a few days of Lazos initial complaint to Human Resources, her attorney sent Jiffy Lube a demand letter which sought compensation for Lazo as a result of Aragons alleged conduct. (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918 [demand letter sent in advance of litigation was protected activity under section 425.16].) It appears that Jiffy Lube itself perceived Lazos internal complaint to include a threat of litigation, as the decision-maker for Aragons discharge believed that Jiffy Lube had no alternative but to terminate Oscar Aragon in order to protect the Company from . . . [the] spurious allegations of Ms. Lazo. Third, within approximately three months of her internal complaint to Human Resources, Lazo filed an administrative complaint with the DFEH and thereafter agreed to participate in a deposition and private mediation with Jiffy Lube. Lazo then brought a civil action against Aragon and Jiffy Lube less than three months after the mediation failed and Lazo received her right-to-sue notice from the DFEH. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268-1269 [pre-litigation letter sent four months before civil action was filed was protected activity under 425.16].)

Lazo suggests that the mere fact that she made a complaint of sexual harassment to Jiffy Lube is sufficient to constitute protected activity under section 425.16 because an internal report of harassment is purportedly a prerequisite to filing a civil harassment suit. She relies on federal law which has recognized an affirmative defense to hostile work environment claims brought under Title VII where the employer can establish that it exercised reasonable care to prevent and promptly correct harassment and that the employee unreasonably failed to take advantage of preventative or corrective measures. (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765; Faragher v. City of Boca Raton (1998) 524 U.S. 775, 807.) However, Lazo filed her civil action under FEHA, and unlike Title VII, FEHA makes an employer strictly liable for sexual harassment by a supervisor. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041-1042.) Furthermore, while both Title VII and FEHA require an employee to exhaust administrative remedies prior to initiating a civil suit, neither statute mandates that the employee seek internal redress as a jurisdictional prerequisite to administrative or judicial relief. (42 U.S.C.  2000e5(f); Gov. Code,  12965, subd. (b).) We therefore disagree with Lazos suggestion that the statute applies to any internal harassment complaint made by an employee. Rather, we conclude that, based on the facts alleged here, Lazo has made a sufficient prima facie showing that her internal complaint was brought in anticipation of litigation, and thus, falls within the scope of section 425.16.

In contending that the statute does not apply to Lazos pre-litigation complaint to Jiffy Lube, Aragon cites to two cases that hold that statements made in connection with a private companys internal investigation of sexual harassment allegations do not constitute protected activity under section 425.16. In both Carpenter v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 459 (Carpenter) and Olaes v. Nationwide Mutual Insurance Co. (2006) 135 Cal.App.4th 1501, 1505 (Olaes), an employee filed suit against his former employer after being discharged for allegedly sexually harassing another employee. The appellate court in each case affirmed the trial courts denial of the employers special motion to strike on the grounds that the employers internal investigation of a sexual harassment complaint was not an official proceeding authorized by law within the meaning of section 425.16, subdivision (e)(1) or (2), nor was it conduct in connection with a public issue or issue of public interest within the meaning of section 425.16, subdivision (e)(4). (Carpenter, supra, at pp. 471-472; Olaes, supra, at pp. 1507, 1511.) However, neither Olaes nor Carpenter is dispositive here. Unlike the present case, there was no allegation that the employee claiming harassment had engaged in any pre-litigation communications with the employer in connection with an anticipated lawsuit contemplated in good faith.

For these reasons, Aragons reliance on Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme) and Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 (Rivero) is similarly misplaced. In both cases, the appellate court held that a unions allegedly defamatory statements accusing an employee of workplace misconduct did not constitute protected activity within the meaning of section 425.16, subdivision (e)(4) because a private employment dispute is generally not an issue of public interest. (De Charme, supra, at p. 119; Rivera, supra, at p. 924.) However, neither case considered whether an employment complaint made in anticipation of litigation may be entitled to the protection of the statute, not as an issue of public interest under section 425.16, subdivision (e)(4), but as a statement made in connection with an issue under consideration . . . by a judicial body under section 425.16, subdivision (e)(2).

Aragon also argues that section 425.16 does not protect Lazos pre-litigation communications with Jiffy Lube because Lazo did not commence a civil action until at least seven months after she made her initial complaint to Human Resources. In support of this contention, Aragon cites to Edwards v. Centex Real Estate Corp., supra, 53 Cal.App.4th at p. 36, which held that the litigation privilege only attaches to pre-litigation statements when imminent access to the courts is seriously proposed by a party in good faith for the purpose of resolving a dispute, and not when a threat of litigation is made merely as a means of obtaining a settlement. However, as recognized in Aronson v. Kinsella, supra, 58 Cal.App.4th at p. 268, the question in Edwards was not imminentness, but remoteness. Moreover, the appellate court in Edwards concluded that the litigation privilege did not protect communications made many years before litigation was commenced because in making such statements, the aggrieved parties never suggested litigating their claims, threatened lawsuits, or even made any settlement demands. (Edwards v. Centex Real Estate Corp., supra, at p. 38.) Accordingly, while the proximity in time between the communication and the lawsuit is a factor to consider, the litigation privilege is not conditioned upon an imminency requirement separate from the requirement that prelitigation statements be made in serious and good faith consideration of litigation. (Aronson v. Kinsella, supra, at p. 268.)

As discussed, Lazo filed an administrative complaint with the DFEH approximately three months after she first reported the alleged harassment to Jiffy Lube, and filed a civil action approximately three months after she received her right-to-sue notice. (See, e.g., Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1269 [distinguishing Edwards on the grounds that the statements at issue in Edwards were made more than five years before the lawsuits were filed, as opposed to the four months in this case].) Notably, the filing of an administrative complaint with the DFEH is a jurisdictional prerequisite to initiating a civil action under FEHA, and neither party disputes that such administrative filings are entitled to protection under section 425.16. (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115 [[t]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action.].) Instead, Aragon repeatedly asserts that he is not basing his claims on the DFEH complaint, the right-to-sue notice, or the voluntary mediation. However, Lazos participation in these litigation-related activities in the months following her internal complaint to Jiffy Lube is relevant because it supports the inference that at the time Lazo first complained of harassment and had a demand letter sent by her attorney, she was contemplating litigation seriously and in good faith.[8] Lazo therefore has met her burden of proving that Aragons claims arose from constitutionally protected activity within the meaning of section 425.16.

III.             Probability Of Prevailing On The Merits

Because Lazo made a prima facie showing that Aragons action arose from protected activity, the burden shifted to Aragon to prove a reasonable probability of success on his claims. To demonstrate a probability of prevailing on the merits of a challenged cause of action, the plaintiff must state[ ] and substantiate[ ] a legally sufficient claim. [Citation.] (Jarrow Formulas, Inc. v. LaMarche (2003), 31 Cal.4th 728, 741.) The plaintiff must make a prima facie showing of facts that would, if proven, support a judgment in his or her favor. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]. (Ibid.) However, the court does not weigh the evidence or make credibility determinations. [Citations.] (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) The court must accept as true the evidence favorable to the plaintiff and consider the defendants opposing evidence only to determine if it defeats the plaintiffs showing as a matter of law. (Flatley v. Mauro, supra, 39 Cal.4th at p. 326.) Although 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 defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. [Citation.] (Wilson v. Parker, Covert & Chidester, supra, at p. 821.)

To prevail on a cause of action for intentional interference with prospective economic advantage, the plaintiff must plead and prove that (1) the plaintiff had an economic relationship with a third party containing the probability of a future economic benefit to the plaintiff; (2) the defendant had knowledge of this relationship; (3) the defendant committed intentional and wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship occurred; and (5) economic harm to the plaintiff was proximately caused by the defendants conduct. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) Similarly, the tort of negligent interference with prospective economic advantage is established where the plaintiff demonstrates that (1) the plaintiff had an economic relationship with a third party containing the probability of a future economic benefit to the plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would cause the plaintiff to lose the probable future economic benefit of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to the plaintiff in that the relationship was actually interfered with or disrupted and the plaintiff lost the economic advantage reasonably expected from the relationship. (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)

The litigation privilege of Civil Code section 47, subdivision (b) has been held to immunize defendants from tort liability based on theories of negligence and intentional interference with prospective economic advantage. (Silberg v. Anderson, supra, 50 Cal.3d at p. 215; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290-1291; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784-785.) The privilege is thus relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing. (Flatley v. Mauro, supra, 39 Cal.4th at p. 323; see also Rohde v. Wolf, supra, 154 Cal.App.4th at p. 38 [where the defendants pre-litigation communications were protected by the litigation privilege, the plaintiff could not meet her burden under the second prong of the anti-SLAPP analysis]; Kashian v. Harriman, supra, 98 Cal.App.4th at pp. 926927 [where the plaintiff's action was barred by Civil Code section 47, subdivision (b), the plaintiff could not demonstrate a probability of prevailing under section 425.16].) As discussed above, Lazo made a sufficient showing that her internal complaint to Jiffy Lube constitutes protected activity under section 425.16 because it was made in anticipation of litigation. Such pre-litigation communications also are privileged under Civil Code section 47, subdivision (b) because they were statements made in connection with an anticipated litigation that was contemplated in good faith and under serious consideration. (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1251.) Because it is absolute, the litigation privilege protects Lazos communications with Jiffy Lube about Aragons alleged harassment irrespective of whether Lazo made her complaint with malice or an intent to injure. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1063 [litigation privilege is absolute and applies regardless of malice]; Silberg v. Anderson, supra, at p. 220 [application of the litigation privilege does not depend on the litigants motives, morals, ethics or intent].)

The litigation privilege accordingly presents a substantive defense to Aragons claims for intentional and negligent interference with prospective economic advantage that Aragon must overcome to demonstrate a probability of prevailing under section 425.16. However, Aragon has failed to make prima facie showing of facts that would, if proven, support that the litigation privilege does not provide an absolute bar to his claims. Indeed, the only evidence offered by Aragon is directed at whether Lazos internal complaint that Aragon sexually harassed her was knowingly false, and whether such complaint was the cause of Aragons discharge. Aragons evidence does not address whether, at the time Lazo made the allegedly false complaint, she was contemplating litigation seriously and in good faith. As the Supreme Court has explained, [i]t is important to distinguish between the lack of a good faith intention to bring a suit and publications which are made without a good faith belief in their truth, i.e., malicious publications. The latter, when made in good faith anticipation of litigation, are protected as part of the price paid for affording litigants the utmost freedom of access to the courts. (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1251; see also Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1489 [the litigation privilege cannot be defeated simply by asserting that litigation to which the statement is related is without merit because such an interpretation would virtually eradicate the litigation privilege for all but the most clearly meritorious claims].)

Whether Lazo made a sexual harassment complaint without a good faith belief in its truth is therefore irrelevant to determining whether the litigation privilege bars Aragons claims. Rather, the relevant inquiry is whether Lazo had a serious and good faith intention of filing a civil action for unlawful harassment at the time she first reported Aragons alleged conduct to Jiffy Lube. Aragon does not present any evidence to establish that Lazo lacked such an intention when she initially complained to the company that Aragon was sexually harassing her. On the other hand, there is evidence that Lazos statements and actions at the time of her initial complaint were consistent with an intent to file suit, and thus, that her internal complaint to Jiffy Lube is protected by the litigation privilege. Because the only evidence offered by the parties supports the conclusion that the communications on which Aragon is basing his claims are absolutely privileged under Civil Code section 47, subdivision (b), Aragon has failed to meet his burden of proving a probability of prevailing on the merits of his claims under section 425.16. As a result, the trial court did not err in granting Lazos special motion to strike Aragons causes of action for intentional and negligent interference with prospective economic advantage.[9]

IV.              The Award Of Attorneys Fees

In his Opening Brief, Aragon also requests that we reverse the trial courts order granting Lazo attorneys fees, or alternatively, reduce the fee award to under $10,000. However, an order granting or denying attorneys fees under section 425.16 generally is appealable only from the final judgment in the action. (Doe v. Luster (2006) 145 Cal.App.4th 139, 146-150.) Furthermore, Aragon did not provide any argument or legal authority to support his assertion that the trial court erred in awarding Lazo two-thirds of the attorneys fees sought. We are not required to consider points which are not argued or which are not supported by citation to authorities or the record. [Citation.] (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; see also Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [even where appellate review is de novo, it is limited to issues which have been adequately raised and supported in [appellants] brief].) Indeed, where an appellant fails to support a point with reasoned argument and citations to recognized legal authority, we may treat the point as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) For these reasons, we decline to consider whether there was any error in the trial courts award of attorneys fees under section 425.16.

DISPOSITION

The judgment is affirmed. Lazo shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

WOODS, Acting P. J.

JACKSON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Unless otherwise stated, all further statutory references are to the Code of Civil Procedure.

[2] As alleged by Aragon, Lazos offer of employment with the other company was temporarily withdrawn because of an issue with her work visa. That issue was resolved a few months later and Lazo began working for the new company in or about April 2007.

[3] The demand letter from Lazos attorney is not part of the record on appeal, and neither party has described the content of the letter apart from Aragons assertion that it sought a large sum of money on the basis that he had committed a crime. Although the appellate record also does not indicate the date of Lazos demand letter, Aragon represented in his Reply Brief that it was sent on February 10, 2007.

[4] According to Curry, although Jiffy Lube has a written policy that strictly prohibits consensual relationships between supervisors and subordinates, consensual relationships have been permitted in certain circumstances where, among other things, the employees have disclosed the relationship to the company and Jiffy Lube has determined that it is in fact consensual and unlikely to expose the company to future liability.

[5] Lazo did not appeal the trial courts denial of her motion to strike the first cause of action for slander per se. Nevertheless, in her Respondents Brief, Lazo asserts that such ruling was in error and requests that we reverse the trial courts order with respect to that cause of action. However, because Lazo did not file a cross-appeal, she has no standing to ask this Court for any affirmative relief. (See Estate of Powell (2000) 83 Cal.App.4th 1434, 1439 [As a general matter, a respondent who has not appealed from the judgment may not urge error on appeal.]; Building Industry Assn v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9 [A respondent generally must file its own notice of appeal in order to obtain affirmative relief by way of appeal.].)

[6] Aragons complaint does not make any reference to Lazos May 18, 2007 DFEH complaint, Lazos July 24, 2007 deposition, the parties July 27, 2007 private mediation, or Lazos September 20, 2007 civil complaint. Aragon agrees that he is not alleging any of these acts as a basis for liability against Lazo.

[7] The parties dispute whether Lazos additional statement to the Human Resources Director that she was going to file a complaint with the police falls within the scope of section 425.16. Reports to the police of alleged criminal activity generally are protected under the anti-SLAPP statute. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511; Wang v. Hartunian (2003) 111 Cal.App.4th 744, 749.) However, we are unaware of any authority to support that the mere threat of a police report is also protected, particularly where, as here, the threat is immediately retracted. Lazos statement that she intended to file charges with the police is accordingly not a basis for concluding that she has met her burden under section 425.16.

[8] Aragon also relies on the recent decision in Haneline Pacific Properties, LLC v. May (2008) 167 Cal.App.4th 311 (Haneline), to support his argument that the mere fact that pre-litigation communications are conducted through the parties attorneys does not necessarily bring them within the scope of the litigation privilege or section 425.16. In Haneline, however, the communications at issue were between attorneys negotiating a business deal over real property, and hence, the overall tone of the communications [was] one of persuasion and a desire to cooperate to achieve mutual goals. (Id. at p. 319.) The demand letter sent to Jiffy Lube by Lazos counsel clearly was not part of any proposed business deal.

[9] We note that the trial court granted Lazos special motion to strike on the grounds that Aragon could not prove actual damages by establishing that but for Lazos allegedly false harassment complaint, his employment with Jiffy Lube would have continued. On appeal, however, we do not review the trial courts reasoning, but its ruling, and we may affirm the trial courts ruling on any basis presented by the record whether or not relied upon by the trial court. (Day v. AltaBatesMedicalCenter (2002) 98 Cal.App.4th 243, 252, fn. 1.). In light of our conclusion that the litigation privilege bars Aragons claims for intentional and negligent interference with prospective economic advantage, we need not address the parties arguments regarding actual damages.