Putnam v. >South> >Coast> Emergency
Vehicle Service













Filed 2/27/12 Putnam v. South Coast Emergency Vehicle Service CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

DONALD PUTNAM, Plaintiff and Respondent, v. SOUTH COAST EMERGENCY VEHICLE SERVICE et al., Defendants and Appellants.

E051645 (Super.Ct.No. CIVRS1001649) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Joseph R. Brisco, Judge.
Reversed.

Stradling
Yocca Carlson & Rauth, Robert J. Kane, Peter L. Wucetich; Craig L.
Winterman for Defendants and Appellants.

Law
Offices of Thomas Hoegh and Thomas Hoegh for Plaintiff and Respondent.

I. INTRODUCTION

Defendants
South Coast Emergency Vehicle Service, South Coast Fire Equipment, Inc., and
Jeff Kahler (hereafter referred collectively to as South Coast) appeal from the
trial court’s denial of their anti-SLAPP (strategic lawsuit against public
participation) motion (Code Civ. Proc.,href="#_ftn1" name="_ftnref1" title="">^[1] § 425.16). Defendants contend that each of the causes of
action in plaintiff Donald Putnam’s complaint arose in whole or in substantial
part from protected statements, and Putnam has not shown the likelihood of
prevailing on the merits of his claims.
We agree with defendants’ contentions, and we reverse.

II. FACTS AND PROCEDURAL BACKGROUND

In
February 2010, Putnam filed a complaint against South
Coast alleging wrongful discharge
in violation of public policy, defamation,
and intentional infliction of emotional distress. Putnam alleged he had been employed as a
mechanic for South Coast
since April 2005. South
Coast leased a portion of its
premises to another company. In February
2009, the lessee offered to give Putnam some copper wire, and Putnam removed
the copper wire from the premises and sold it.
On February 26, 2009,
South Coast
accused him of stealing the wire and requested Putnam to resign in lieu of
being terminated. Putnam refused to
resign, and on March 2, 2009,
his employment was formally terminated.
When Putnam applied for unemployment benefits with the State Economic
Development Department (EDD), South Coast
opposed the application, asserting that Putnam had been discharged for href="http://www.mcmillanlaw.com/">misconduct. Putnam alleged the report of theft to the EDD
was false. In his cause of action for
wrongful discharge in violation of public policy, Putnam alleged the false
accusation of theft and discharge was for the purpose of preventing him from
receiving unemployment benefits. In his
cause of action for defamation, Putnam alleged that on February 26 and March 2, 2009, defendants accused
him of theft. He alleged those
statements were made “verbally in the presence of others and in writing and
reported to the [EDD] . . . .” In his cause of action for intentional
infliction of emotional distress, Putnam repeated his allegations that
defendants made false accusations of theft and attempted to deny him his
unemployment insurance benefits. South
Coast filed an answer in May 2010 generally denying the allegations of the
complaint and raising various affirmative defenses.

In
June 2010, South Coast filed a special motion to strike Putnam’s complaint
under section 425.16. South Coast
asserted that Putnam’s claims arose from protected activity, or more
specifically, from statements made to the EDD, and Putnam could not show a
likelihood of prevailing on the merits because statements to the EDD are
absolutely privileged.

In
opposition to the anti-SLAPP motion, Putnam claimed that his wrongful
termination action was based on an attempt by Kahler, South Coast’s manager, to
extort him and defame him before the
EDD proceedings. Putnam claimed that
defendants had previously determined to terminate his employment and replace
him with another mechanic before the wire incident, and in accusing him of theft,
they were seeking to avoid liability for his unemployment insurance
benefits. In his declaration filed in
opposition to the anti-SLAPP motion, Putnam stated that Frontline
Communications leased space in South Coast’s facility, and Putnam had
occasionally assisted them in installing heavy equipment outside of his working
hours for South Coast. Frontline was
moving out of its space in February 2009 and needed to dispose of some scrap
copper wire. Frontline offered the wire
to Putnam if he would remove it from the premises. Putnam agreed, and in front of other South
Coast employees, he and his father-in-law loaded the wire and sold it to a
scrap metal yard.

Putnam
further declared that on March 2, 2009, Kahler called Putnam into the
office and informed Putnam he was being terminated for stealing company
property. Putnam denied the theft. Kahler gave Putnam the option of resigning
and told Putnam that if he resigned, nothing further would be said about his
stealing the wire. Putnam refused. Kahler told Putnam that he “better resign now
or [Kahler would] have [him] arrested for stealing from the company.” In his declaration, Putnam stated his belief
that South Coast had decided to terminate his employment to replace him, and
South Coast was seeking to avoid liability for Putnam’s unemployment benefits.

Putnam
declared that following his termination, South Coast drew up paper work
stating, “Termination due to violation of company policy. Employee removed property from South Coast
without knowledge or authorization of South Coast Management.” (Capitalization omitted.) Putnam was ordered to acknowledge receipt of
his termination papers. Putnam provided
declarations showing that the incident had been published to South Coast’s
employees, including office manager Kristen Cenderelli and industry consultant
Richard Loken.

Putnam
stated in his declaration that he had 28 years of experience as a heavy truck
and equipment mechanic and had worked for South Coast for more than four
years. Because of his termination, he
has been unable to find new employment.

The
trial court held a hearing on the motion.
The trial court took judicial notice of the decision of the California
Unemployment Insurance Appeals Board in Putnam’s case, in which the Board
affirmed the determination that Putnam had not committed misconduct and that he
was entitled to unemployment benefits.
Following the hearing, the trial court denied the motion as to all
causes of action.

Additional
facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Overview of Section 425.16

The anti-SLAPP
statute, section 425.16, authorizes a defendant to file a special motion to
strike any cause of action arising from an act in furtherance of the
defendant’s constitutional rights of free speech or petition for redress of
grievances. (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 (>Flatley).) The purpose of the statute is to prevent the
chilling of the valid exercise of these rights through “‘abuse of the judicial
process,’” and, to this end, is to “‘“be construed broadly.”’” (§ 425.16, subd. (a); >Flatley, supra, at pp. 312-313.)
While the statute was originally intended “to protect nonprofit
corporations and common citizens ‘from large corporate entities and trade associations’
in petitioning government [citation] . . . . [N]ow it has been broadened to protect large
corporations and trade associations . . . . [Citation.]”
(USA Waste of California, Inc. v.
City of Irwindale (2010) 184 Cal.App.4th 53, 66.

The anti-SLAPP
statute establishes a two-step procedure under which the trial court evaluates
the merits of a plaintiff’s cause of action at an early stage of the
litigation. (Flatley, supra, 39
Cal.4th at p. 312.)

First, the
defendant must show that the cause of action arose from protected activity,
i.e., activity in furtherance of the defendant’s constitutional right of
petition or free speech. (§ 425.16,
subd. (b)(1); Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) A defendant
meets its threshold burden of demonstrating that a cause of action arises from
protected activity by showing that the act or acts underlying the claim fit one
or more of the categories described in section 425.16, subdivision (e). (Navellier
v. Sletten (2002) 29 Cal.4th 82, 88.)
Subdivision
(e) of section 425.16 provides that an “‘act in furtherance of a person’s right
of petition or free speech,’” includes, among other things, “(1) any
written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, [and]
(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 . . . .”
Communications made in preparation for or in anticipation of bringing an
action or other official proceeding fall within the ambit of these subdivisions
and are not required to pertain to an issue of public interest. (Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; >Rohde v. Wolf (2007) 154 Cal.App.4th 28,
35.)

Second, if the
trial court determines the defendant has met its initial burden, the burden
shifts to the plaintiff to demonstrate a reasonable probability of prevailing
on the merits of his cause of action.
(§ 425.16, subd. (b)(1); Equilon,
supra, 29 Cal.4th at p. 67.)

We independently
review orders granting or denying a motion to strike under section
425.16. (Flatley, supra, 39
Cal.4th at p. 325.)

>B.
Defamation Claim

1. Did the Cause of Action Arise
from Protected Activity‌

Putnam’s complaint alleged a
cause of action for defamation.
Defamation is “(a) a publication that is (b) false, (c) defamatory, and
(d) unprivileged, and that (e) has a natural tendency to injure or that causes
special damage. [Citations.]” (Taus
v. Loftus (2007) 40 Cal.4th 683, 720.)
A statement that falsely accuses another of theft is per se
defamatory. (See, e.g., >Allard v. Church of Scientology (1976)
58 Cal.App.3d 439, 450.) Putnam alleged
that South Coast defamed him by falsely accusing him of stealing copper wire.

Defendants
contend that Putnam’s defamation cause of action was based primarily on
statements that were protected for purposes of the anti-SLAPP statute. In Dible
v. Haight Ashbury Free Clinics (2009) 170 Cal.App.4th 843 (>Dible), a psychiatric counselor sued her
former employer for wrongful termination and defamation, among other causes of
action, after the employer terminated her on the ground that her negligence had
led to the suicide of a patient. (>Id. at pp. 845-846.) The trial court granted the defendant’s
anti-SLAPP motion, and the plaintiff appealed.
(Dible, supra, at p. 847.) On
appeal, the court held that the allegedly defamatory statements the plaintiff’s
former employer made to the EDD in connection with the plaintiff’s claim for
unemployment benefits were part of an official proceeding and were therefore
privileged under section 425.16, subdivision (e)(1) and (2). (Dible,
supra, at pp. 848-851.)

Some
of the statements on which Putnam relies were made before the EDD proceedings and were allegedly made to preclude such
proceedings, in that if Putnam voluntarily resigned, he could not file a claim
for unemployment benefits. Thus, Putnam
alleged a mixed cause of action. “A
mixed cause of action is subject to section 425.16 if at least one of the
underlying acts is protected conduct, unless the allegations of protected
conduct are merely incidental to the unprotected activity. [Citation.]
“‘[A] plaintiff cannot frustrate the purposes of the [anti-]SLAPP
statute through a pleading tactic of combining allegations of protected and
nonprotected activity under the label of one “cause of action.”’ [Citation.]”
(Salma v. Capon (2008) 161
Cal.App.4th 1275, 1287-1288, fn. omitted.)
Here, at least one of the underlying acts—the statements to the EDD—was
protected (Dible, >supra, 170 Cal.App.4th at pp. 848-851),
and those statements were not merely incidental to unprotected activity but
were inextricably connected to it. We
therefore conclude defendants have met their burden of showing that the cause
of action for defamation arose from protected activity.

>2.
Did Putnam Establish a Likelihood of Success on the Merits‌

We next determine
whether Putman established a likelihood of success on the merits. We conclude the statements on which Putnam
relies were not only protected for purposes of the anti-SLAPP statute, but they
were also privileged, and as such, cannot support a cause of action for
defamation.

A privileged
publication includes one made in any “official proceeding authorized by
law . . . .” (Civ.
Code, § 47, subd. (b).) Under that
definition, statements to the EDD are privileged. (Williams
v. Taylor (1982) 129 Cal.App.3d 745, 754 [an employer’s explanation to the
EDD of reasons for an employee’s termination was privileged when made without
malice].)

Putnam also
contends that South Coast published defamatory statements not only to the EDD,
but also to Cenderelli, South Coast’s office manager, and Loken, Putnam’s
former supervisor and an industry consultant.
In response, defendants argue that Putnam cannot show any likelihood of
success on the merits of his defamation claim, because any statements to
Cenderelli and Loken were conditionally privileged under Civil Code section 47,
subdivision (c), and Putnam self-published the statements to Loken.

a. Publication to Cenderelli

Civil Code section
47 creates a conditional privilege for “a communication, without malice, to a
person interested therein, (1) by one who is also interested, or
(2) by one who stands in such a relation to the person interested as to
afford a reasonable ground for supposing the motive for the communication to be
innocent, or (3) who is requested by the person interested to give the
information.” (Civ. Code, § 47,
subd. (c).) In Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d
841 (Deaile), a former employee sued
her former employer for defamation and other causes of action after she elected
forced retirement in lieu of being discharged for lying about the causes of her
absences. (Id. at p. 845.) The trial
court entered judgment for the defendant on her complaint, and the appellate
court affirmed, holding the employer’s communications to former fellow
employees and supervisors of a terminated employee about the reasons for her
termination were privileged under Civil Code section 47, former subdivision
(3). The court explained that the statements
“were of a kind reasonably calculated to protect or further a common interest
of both the communicator and the recipient.
[Citations.]” (>Deaile, supra, at p. 847.)

Putnam alleged
that South Coast acted with malice, and the common interest privilege does not
apply to a communication made with malice.
(Terry v. Davis Community Church (2005)
131 Cal.App.4th 1534, 1557; Begier v.
Strom (1996) 46 Cal.App.4th 877, 8820-883.)
“The malice necessary to destroy a qualified privilege is ‘actual malice
or malice in fact, that is, a state of mind arising from hatred or ill will,
evidencing a willingness to vex, annoy or injure another person.’ [Citation.]
Malice may also be established by a showing that the publisher of a
defamatory statement lacked reasonable grounds to believe the statement true
and therefore acted with reckless disregard for plaintiff’s rights. [Citations.]”
(Cuenca v. Safeway San Francisco
Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 997.) Once a defendant establishes the factual
predicate for a privilege—as South Coast has done here—the burden shifts to the
plaintiff to show that the statement was made with malice. (Taus
v. Loftus, supra, 40 Cal.4th at
p. 721.)

Here, South Coast
represented to the EDD that under its lease with the tenant, any property the
tenant left behind after the tenant vacated the property belonged to South
Coast. South Coast therefore claimed the
property the tenant left behind belonged to South Coast, and Putnam had taken
it without permission. The EDD found
that Putnam had not committed misconduct, because he was unaware of the terms
of the lease under which South Coast claimed ownership of the property. Under these circumstances, indicating that
South Coast had a good faith belief in its accusations against Putnam, we
cannot say that South Coast’s conduct constituted malice as a matter of law.

b. Statements to Loken

South Coast
contends Putnam cannot establish defamation with respect to statements made to
Loken because Putnam himself published those allegedly defamatory
statements. (Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 373
[Fourth Dist., Div. Two] [summary judgment was properly granted in a defamation
action when the plaintiff had himself talked about the underlying incident with
fellow employees in an attempt to garner their support].) In addition, Loken stated he was the acting
supervisor for defendants when Putnam’s transaction with defendant’s lessee and
the copper wire took place, and as such, had a common interest with defendants
such that any statements they made to him were privileged. (Civ. Code, § 47, subd. (c); >Deaile, supra, 40 Cal.App.3d at p. 847.)

We agree that
Putnam has failed to establish the likelihood of success on the merits in an
action based on any statements that were made to Cenderelli and Loken.

>C.
Wrongful Termination

1. Did the Cause of Action Arise
from Protected Activity‌

In
his cause of action for wrongful termination, Putnam alleged that South Coast
terminated his employment in violation of public policy as a result of “falsely
accusing [him] of stealing property from Defendants . . . and
then wrongfully discharging [him] for removing
Defendants[’] . . . property from its premises without authority
or permission, said wrongful discharge[] was done for the purpose of preventing
[him] from receiving unemployment benefits . . . .”

Putnam asserts his
wrongful termination action was based on attempted extortion. Not all speech or petition activity is
protected by the anti-SLAPP statute. The
statute cannot be invoked by a defendant whose assertedly protected activity is
illegal as a matter of law and, for that reason, not protected by
constitutional guarantees of free speech
and petition. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367,
disapproved on another ground in Equilon,
supra, 29 Cal.4th at p. 68, fn.
5.) Thus, for example, the statute does
not protect conduct that amounts to extortion.
(Flatley, supra, 39 Cal.4th at p. 328; Cohen
v. Brown (2009) 173 Cal.App.4th 302, 318.)

“‘“Conduct that
would otherwise come within the scope of the anti-SLAPP statute does not lose
its coverage . . . simply because it is alleged to have been
unlawful or unethical.” [Citations.] An exception to the use of section 425.16
applies only if a “defendant concedes, or the evidence conclusively
establishes, that the assertedly protected speech or petition activity was
illegal as a matter of law.” [Citation.]’”
(Cabral v. Martins (2009) 177
Cal.App.4th 471, 482.)

Here, for the same
reasons that Putnam cannot establish malice, he cannot establish that South
Coast’s conduct constituted extortion or was illegal as a matter of law.

D. Intentional Infliction of
Emotional Distress

1. Did the Cause of Action Arise
from Protected Activity‌

In his third cause
of action for intentional infliction of emotional distress, Putnam alleged that
“[o]n February 26, March 2, 2009 and continuing,” South Coast accused
him of stealing property from South Coast and “then terminated [him] for
misconduct on March 2, 2009, and thereafter, attempted to deny [him] his
unemployment benefits on the grounds that [he] had stolen property” from South
Coast.

Defendants argue
they met their burden of establishing that the third cause of action arose
primarily or in substantial part from protected
activity. In that Putnam’s cause of
action for intentional infliction of emotional distress was based on the same
statements and actions as his causes of action for wrongful termination and
defamation, the same analysis applies.
We therefore conclude defendants met their burden.

>2.
Did Putnam Establish a Likelihood of Success on the Merits‌

South Coast next
argues that Putnam cannot show any likelihood of success on the merits as to
his third cause of action for intentional infliction of emotional distress
because workers’ compensation is the exclusive remedy for emotional distress in
the employment context. In >Singh v. Southland Stone, U.S.A., Inc. (2010)
186 Cal.App.4th 338, 367, the court explained:
“An employer’s intentional misconduct in connection with actions that
are a normal part of the employment relationship, such as demotions and
criticism of work practices, resulting in emotional href="http://www.sandiegohealthdirectory.com/">injury is considered to be
encompassed within the compensation bargain, even if the misconduct could be
characterized as ‘manifestly unfair, outrageous, harassment, or intended to
cause emotional disturbance.’ [Citation.]
Workers’ compensation ordinarily provides the exclusive remedy for such
an injury. [Citation.]” We therefore agree with defendants’ argument.

Moreover, in >Deaile, the court held that the trial
court had not erred in dismissing the plaintiff’s cause of action for emotional
distress. (Deaile, supra, 40
Cal.App.3d at pp. 849-850.) The court explained that the privileges
under Civil Code section 47 were not limited to actions for defamation, and
“[c]learly, an employer is privileged in pursuing its own economic interests
and that of its employees to ascertain whether an employee has breached his
responsibilities of employment and if so, to communicate, in good faith, that
fact to others within its employ so that (1) appropriate action may be taken
against the employee; (2) the danger of such breaches occurring in the future
may be minimized; and (3) present employees may not develop misconceptions
that affect their employment with respect to certain conduct that was undertaken
in the past. Where an employer seeks to
protect his own self-interest and that of his employees in good faith and
without abusing the privilege afforded him, the privilege obtains even though
it is substantially certain that emotional distress will result from uttered
statements. [Citations.]” (Deaile,
supra, at pp. 849-850>.)
We therefore conclude that Putnam has failed to establish the likelihood
of success on the merits.

IV. DISPOSITION

The
order appealed from is reversed. Costs
shall be awarded to defendants and appellants.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



HOLLENHORST

J.

We concur:





RAMIREZ

P.J.



MCKINSTER

J.