Shack v. NBC Universal





Filed 3/4/11 Shack v. NBC Universal 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

VINCENT W. SHACK, Plaintiff and Appellant, v. NBC UNIVERSAL, INC. et al., Defendants and Respondents.

E049374 (Super.Ct.No. INC083821) O P I N I O N

APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.
Vincent W. Shack, in pro. per., for Plaintiff and Appellant.
P.K. Schrieffer, Paul K. Schrieffer, Donald S. Zalewski, and Stephen Chace Bass for Defendant and Respondent NBC Universal, Inc.
Tharpe & Howell, Paul V. Wayne and Eric B. Kunkel for Defendants and Respondents IMG Worldwide, Inc. and Ladies Professional Golf Association.
Kinkle, Rodiger and Spriggs and Wesley D. Hellerud for Defendant and Respondent Samsung Electronics America, Inc.
I. INTRODUCTION
Plaintiff and appellant Vincent W. Shack sued six defendants, alleging two causes of action against each of them for general negligence and intentional tort. Both claims arose during a professional golfing event, namely, the 2007 Samsung World Championship, which Shack attended at the Bighorn Country Club in Palm Desert on October 11 and 12, 2007. All six defendants successfully moved to strike both causes of action under Code of Civil Procedure section 425.16,^[1] the anti-SLAPP^[2] statute.
Shack appeals, challenging the orders striking his two causes of action against four of the six defendants, namely, defendants and respondents IMG Worldwide, Inc. (IMG), Ladies Professional Golf Association (the LPGA), NBC Universal, Inc. (NBC), and Samsung Electronics America, Inc. (Samsung). Shack did not appeal from the order striking the same claims against a fifth defendant, Dan Beard, and this court has dismissed as untimely Shack’s appeal from the order striking the claims against the sixth defendant, Bighorn Properties, Inc. (Bighorn). As to IMG and the LPGA, Shack’s first amended complaint was stricken. As to NBC and Samsung, Shack’s later-filed second amended complaint was stricken. The allegations of both complaints are substantially the same.
In support of both causes of action, Shack alleged that Beard, an NBC cameraman, intentionally struck him in the neck while recording an errant tee-shot on the 18th hole, and Beard later reported to police and tournament security personnel that Shack threatened him. The next day, Shack was denied admittance to the tournament, and police officers “essentially removed” him from the tournament premises “in front of the golf community,” which Shack relied upon “for professional opportunities.” Shack generally alleged that the six defendants were the agents or employees of each other, and the five “entity defendants” were in some manner responsible for Beard’s “outrageous battery” and for their own actions in reporting to police and tournament security personnel that Shack threatened Beard. Shack presented no admissible evidence in opposition to any of the anti-SLAPP motions and instead relied solely on the allegations of his complaints.
The principal issue on this appeal is whether Shack’s two causes of action are based on protected activity (Code Civ. Proc., § 425.16, subd. (e)), namely, defendants’ reports to police and security personnel that Shack threatened Beard, or nonprotected activity, namely, Beard’s battery of Shack. We conclude that both causes of action were properly stricken because both could be based solely on defendants’ protected activities. We further conclude that Shack failed to demonstrate a reasonable probability of prevailing on his claims because both causes of action are subject to the absolute litigation privilege of Civil Code section 47, subdivision (b). Accordingly, we affirm the orders striking Shack’s two causes of action and dismissing his complaints against IMG, the LPGA, NBC, and Samsung.
Before we address the merits of Shack’s claims on appeal, we consider IMG’s and the LPGA’s preliminary claim that Shack’s appeal must be dismissed because he appealed from the judgments in their favor rather than from the orders granting their anti-SLAPP motions. For the reasons we explain, we liberally construe Shack’s notices of appeal as having been taken from the anti-SLAPP orders.
II. DISCUSSION/SHACK’S NOTICES OF APPEAL
In a joint respondents’ brief, IMG and the LPGA claim that Shack’s appeal as to them must be dismissed because this court lacks jurisdiction to consider it. They correctly point out that Shack did not appeal from the July 16, 2009, order granting their anti-SLAPP motion but from the judgment dismissing his first amended complaint as to them. They claim that Shack’s right to challenge the anti-SLAPP order lay solely from an appeal of the order itself and not from the judgment, though the judgment was also entered on July 16, 2009. We agree; however, we liberally construe Shack’s notices of appeal as to IMG and the LPGA as having been taken from the orders granting the anti-SLAPP motions.

Though NBC does not raise the issue, we also liberally construe Shack’s notice of appeal as to NBC, which was also taken from the judgment in favor of NBC, as having been taken from the anti-SLAPP order in favor of NBC. As to Samsung, the issue has been addressed. On November 12, 2009, before the parties filed their briefs on appeal, we issued an order construing Shack’s notice of appeal as to Samsung as having been taken from the anti-SLAPP order in favor of Samsung.
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Conversely, the existence of an appealable judgment or order is a “jurisdictional prerequisite” to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) An order granting or denying a special motion to strike is an appealable order. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) “‘“If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.” [Citation.]’ [Citation.]” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.)
As discussed, the order granting IMG’s and the LPGA’s anti-SLAPP motion was entered on July 16, 2009, and was final when entered. (Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th at p. 1247 [distinguishing orders that are final when made from interim orders].) Apparently, no notice of entry of the order was ever served. Shack therefore had 180 days from July 16, 2009, or until January 12, 2010, to appeal from the order. (Cal. Rules of Court, rule 8.104(a)(3), (f).)^[3] On September 28, 2009, Shack filed a notice of appeal, not from the July 16 order but from what he described as the “Judgement of Dismissal under Code 425.16 Anti-SLAPP Suit.” The notice of appeal stated that the judgment was entered on July 17, 2009, but this court requested, and Shack later filed, a civil case information sheet, together with a copy of the judgment (rule 8.100 (g)), showing that the judgment was entered on July 16, the same date the order granting the anti-SLAPP motion was entered.
By an order dated October 27, 2009, we liberally construed Shack’s notice of appeal as to IMG and the LPGA as having been taken from the July 16, 2009, judgment, as opposed to the nonexistent July 17 judgment, on the ground it was “reasonably clear” Shack intended to appeal from the July 16 judgment. Our October 27 order did not address whether Shack should have appealed from the July 16 order rather than the July 16 judgment. Instead, the order merely clarified that the appeal was being taken from a judgment issued on July 16, rather than on July 17. The question here is whether the notice of appeal should be again liberally construed as having been taken from the July 16 order rather than the July 16 judgment. We conclude it should.
Notices of appeal are to be liberally construed “so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” (Luz v. Lopes (1960) 55 Cal.2d 54, 59; rule 8.100(a)(2).) As indicated, Shack’s notice of appeal as to IMG and the LPGA expressly stated it was taken from the “Judgement of Dismissal under Code 425.16 Anti-SLAPP Suit.” The July 16 judgment dismissed Shack’s first amended complaint as to IMG and the LPGA based on the July 16 order granting their anti-SLAPP motion as to Shack’s only two causes of action. It is therefore “reasonably clear” that Shack intended to appeal from the July 16 order.
In addition, neither IMG nor the LPGA could have been misled by the use of the word “judgment” rather than “order” in Shack’s notice of appeal. As indicated, the order and judgment were entered on the same date, and the judgment was entered based solely on the order. Further, both the order and judgment included an award of $2,830 in attorney fees to IMG and the LPGA and no further litigation occurred following entry of the order. Lastly, Shack’s notice of appeal as to IMG and the LPGA would have been timely filed had it been taken from the order rather than from the judgment. (Cf. Russell v. Foglio (2008) 160 Cal.App.4th 653, 661; Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th at pp. 1246-1247.) As stated, Shack’s notice of appeal as to IMG and the LPGA was filed on September 28, 2009, before the expiration of the applicable 180-day time period following entry of the July 16 order. (Rule 8.104(a)(3), (f).)
The same reasoning applies to Shack’s notice of appeal as to NBC. That notice also states it is taken from the “Judgement of Dismissal under Code 425.16 Anti-SLAPP Suit,” and was filed on September 28, 2009. The judgment dismissing Shack’s complaint as to NBC was entered on August 17, 2009, and, like the other judgments, was based solely on the order granting NBC’s anti-SLAPP motion, which was entered on July 27, 2009. Both the order and judgment in favor of NBC included an award of $1,960 in attorney fees to NBC, and no further litigation between the parties occurred after the order was entered. Also, no notice of entry of the order was apparently ever served. Shack therefore had until January 25, 2010, or 180 days after July 27, 2009, to appeal from the order (rule 8.104(a)(3), (f)), and his notice of appeal from the “judgment” would have been timely had it been taken from the order.
As to Samsung, Shack also filed a notice of appeal on September 28, 2009, from the “Judgement of Dismissal under Code 425.16 Anti-SLAPP Suit.” This notice of appeal stated that the judgment was entered on September 3, 2009, but as of September 28, 2009, no judgment had been entered in favor of Samsung. The anti-SLAPP order in favor of Samsung was entered on October 5, 2009, following a September 2, 2009, hearing on the motion. By an order dated November 12, 2009, we liberally construed Shack’s notice of appeal as to Samsung as having been taken from the October 5 order. We also deemed the notice of appeal as having been filed immediately after entry of the October 5 order.
Accordingly, Shack has properly appealed from the anti-SLAPP orders in favor of IMG, the LPGA, NBC, and Samsung. We therefore proceed to consider the merits of Shack’s claims on this appeal.
III. DISCUSSION/MERITS OF SHACK’S APPEAL
A. Overview of Section 425.16
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.^[4] (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312; Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1546-1547 (Haight).) 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 v. Mauro, supra, at pp. 312-313.)
The anti-SLAPP statute establishes a two-step procedure whereby the trial court evaluates the merits of a plaintiff’s cause of action, using a summary-judgment-like procedure, at an early stage of the litigation. (Flatley v. Mauro, supra, 39 Cal.4th at p. 312.) First, the defendant is required to show that the cause of action arises from protected activity, i.e., activity by the defendant in furtherance of his or her constitutional right of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the trial court determines that 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. (Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67; § 425.16, subd. (b)(1).)
We independently review orders granting or denying a motion to strike under section 425.16. (Flatley v. Mauro, supra, 39 Cal.4th at p. 325.) Only causes of action that satisfy both prongs of the anti-SLAPP statute—i.e., that arise from protected speech or petitioning activity and that lack even minimal merit—are subject to being stricken under the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
B. The Allegations of Shack’s Complaints
A combined anti-SLAPP motion by IMG and the LPGA was granted as to Shack’s first amended complaint, while NBC and Samsung later filed separate anti-SLAPP motions, which were granted as to Shack’s later-filed second amended complaint. As indicated, the allegations of the two complaints are substantially the same and all of the allegations formed the bases of Shack’s two causes of action for “general negligence” and “intentional tort” against all defendants.
Shack alleged that on October 11, 2007, he was intentionally struck in the neck by an NBC cameraman, Dan Beard, while attending a professional golfing event, the 2007 Samsung World Championship at the Bighorn Country Club in Palm Desert. The incident allegedly occurred at the 18th hole of the green after an errant tee-shot required Shack to “move one or two steps to clear the path” so the play could continue. As Shack moved out of the path of the errant ball, Beard struck Shack with either his camera or forearm and “spewed derogatory language toward” Shack. Shack was “visibly shaken and suffered immediate and serious injury” to his “neck area, among other physical and mental injuries.”
Beard and the five other defendants, namely, NBC, Samsung, IMG, the LPGA, and Bighorn, were alleged to be the employees, agents, contractors, or other representatives of each other, and the five “entity defendants” were alleged to have “sponsored” or “participated,” in whole or in part, in the “organization and production of the [t]ournament.” NBC also allegedly broadcasted “at least parts” of the tournament on national television, and each defendant was alleged to have “committed the acts, caused or directed others to commit the acts, or permitted others to commit the acts” alleged in the complaint.
Shack further alleged that at the end of the day on October 11 tournament security personnel approached him and informed him that Beard had filed a complaint alleging Shack had threatened Beard. Shack then sought out and spoke with the head of security for the tournament, who informed him that no charges would be filed and he was free to attend the tournament on the following day, October 12. Then, on October 12, Shack was “barred from entering the [t]ournament” while attempting to purchase a ticket. Shack alleged that, “[t]o add further insult to the physical and mental injuries suffered the previous day,” and based on “statements provided by [t]ournament personnel and security,” police officers “removed” him from the tournament “in a manner that was unnecessarily aggressive, demeaning and demoralizing. These humiliating and debasing acts were committed in front of the golf community,” which Shack relied upon for “professional opportunities.” Shack alleged he continued to suffer “emotional and mental distress” as a result of the actions “committed and initiated by [d]efendants.”
Shack alleged his forcible removal from the tournament on October 12 caused him “great embarrassment and emotional distress,” and described defendants’ “conduct on October 12” as “equally if not more outrageous” than Beard’s act of striking him in the neck and spewing derogatory comments toward him on October 11. Also on October 12, tournament personnel and security “specifically told” Shack that IMG and Bighorn “did not want him” at the tournament. And, while Shack alleged that his neck pain “continued for a period” and required “medication and attention to heal,” he emphasized that his forcible removal from the tournament on October 12 caused him to suffer “severe emotional distress.” Finally, Shack alleged that, in refusing him entry to the tournament on October 12, defendants “failed to act reasonably, prudently and in good faith.” Shack’s complaints also included exemplary damages attachments.
C. The First Prong/Shack’s Causes of Action Were Partly Based on Protected Activity
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, supra, 29 Cal.4th at p. 88.) As pertinent, subdivision (e) of section 425.16 provides that an “‘act in furtherance of a person’s right of petition or free speech’” includes: “(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 . . . .” 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.)
Shack argues that IMG, the LPGA, NBC, and Samsung failed to meet their initial burdens of demonstrating that his causes of action against them for “general negligence” and “intentional tort” arose from protected activity. (§ 425.16, subd. (b)(1).) Shack correctly points out that Beard’s alleged act of striking him in the neck does not constitute protected speech or petitioning activity. (Id., subd. (e).) And in his first and second amended complaints, Shack generally alleged that IMG, the LPGA, NBC, and Samsung were responsible in some manner for Beard’s “outrageous battery” or act of striking him in the neck.
Shack also alleged, however, that Beard and the other defendants, including IMG, the LPGA, NBC, and Samsung, falsely reported to police and/or tournament security personnel that Shack threatened Beard; as a result of these reports, Shack was refused entry into the tournament on October 12 and was forcibly removed by police officers in a manner that was “unnecessarily aggressive, demeaning and demoralizing”; and, finally, these actions humiliated Shack in front of the golfing community upon which he relies for “professional opportunities.” In contrast to Beard’s alleged battery, defendants’ reports to police or tournament security personnel that Shack threatened Beard are protected activities. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511-1512 [reports to police of allegations of child molestation are protected]; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569-1570 [same].)
The question presented is whether the gravamen of Shack’s causes of action against IMG, the LPGA, NBC, and Samsung targeted protected or nonprotected activities. “In general, whether a cause of action is subject to a motion to strike under the SLAPP statute turns on whether the gravamen of the cause of action targets protected activity. [Citation.] If liability is not based on protected activity, the cause of action does not target the protected activity and is therefore not subject to the SLAPP statute. [Citations.]” (Haight, supra, 184 Cal.App.4th at p. 1550.) This rule is based on the principle that “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.’” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308, fn. omitted; but see Paul v. Friedman (2002) 95 Cal.App.4th 853, 866 [anti-SLAPP statute does not apply to suits arising from acts having “any connection, however remote,” with protected activity].)
Courts have held that a mixed cause of action—one that is based on protected and nonprotected activity—is subject to an anti-SLAPP motion if the “gravamen” of the cause of action targets protected activity. (Haight, supra, 184 Cal.App.4th at pp. 1550-1553, and cases cited.)^[5] As interpreted in Haight, this means that if the defendant shows the cause of action could be based solely on “nonincidental protected activity,” it satisfies the first prong of the anti-SLAPP statute, even if the cause of action includes additional allegations of nonprotected activity and could also be based solely on any of its allegations of nonprotected activity. (Id. at p. 1551 & fn. 7.)
Thus, in Haight, a cause of action alleging breach of fiduciary duty satisfied the first prong of the anti-SLAPP statute, though only two of 16 factual bases of the cause of action targeted protected activity. The other 14 factual bases targeted nonprotected activity. (Haight, supra, 184 Cal.App.4th at pp. 1544-1545, 1548-1553.) The court explained that the two factual bases targeting protected activity “could each be the sole and adequate basis for liability under the cause of action,” and for this reason were not “merely incidental” to the numerous additional allegations targeting nonprotected activity. (Id. at p. 1551.) The court further explained that if the two factual bases targeting protected activities had been the only bases for the cause of action, the cause of action would have been subject to the anti-SLAPP statute, and the pleading of the other unprotected theories of liability did not eliminate or reduce the chilling effect on the defendants’ exercise of their rights of free speech and petition. (Ibid.) Defendants still faced the burden of litigation and potential liability for acts deemed protected by the anti-SLAPP statute. (Ibid.)
The same is true here. Though Shack’s causes of action for general negligence and intentional tort against IMG, the LPGA, NBC, and Samsung were indisputably based in part on their alleged liability for Beard’s “outrageous” battery of Shack (nonprotected activity), the claims could have been based solely on defendants’ reports to police and tournament security personnel that Shack threatened Beard (protected activity), which allegedly resulted in Shack’s embarrassing removal from the tournament entrance by police officers. For this reason, the trial court correctly ruled that defendants met their burden under the first prong of the anti-SLAPP statute.
D. The Second Prong/Shack Failed to Demonstrate a Reasonable Probability of Prevailing on the Merits of His Claims
Once IMG, the LPGA, NBC, and Samsung met their burdens of showing that Shack’s two causes of action against them could have been based solely on protected activities, the burden shifted to Shack to demonstrate a reasonable probability of prevailing on the merits of his claims against these defendants. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) In order to meet his burden, Shack had to show his complaints were both “legally sufficient and supported by a sufficient prima facie showing of facts” which, if credited by the trier of fact, would sustain a judgment in his favor. (Id. at pp. 88-89; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576.)
In determining whether Shack met his burden, this court considers the pleadings and evidence submitted by both sides. (Ampex Corp. v. Cargle, supra, 128 Cal.App.4th at p. 1576.) We accept as true the evidence favorable to Shack and assess defendants’ evidence only to determine whether it defeats Shack’s evidence as a matter of law. (Ibid.) As indicated, Shack did not present any admissible evidence in opposition to any of defendants’ anti-SLAPP motions, and instead relied on argument and the allegations of his complaints. Thus, Shack failed to establish a reasonable probability of prevailing on any portion of his causes of action. (See Haight, supra, 184 Cal.App.4th at p. 1554 [defendant did not even attempt to satisfy its burden under second prong of anti-SLAPP analysis].)
Further, Shack’s causes of action against IMG, the LPGA, NBC, and Samsung are insufficient on their face to the extent they are based on defendants’ reports to police and tournament security personnel that Shack threatened Beard. Claims based on such reports are barred by the absolute litigation privilege of Civil Code section 47, subdivision (b), even if made in bad faith. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360-370 [reports to police or other government agencies for investigation into allegations of wrongdoing are absolutely privileged under Civil Code section 47, subdivision (b), unless the plaintiff establishes tort of malicious prosecution].)
E. Shack’s and Samsung’s Respective Motions for Sanctions Are Denied
On June 11, 2010, before any of the parties filed their briefs on appeal, Shack filed a motion in this court seeking sanctions against IMG, the LPGA, NBC, and Samsung pursuant to section 128.7, on the ground the anti-SLAPP motions they filed in the trial court were “based on fallacy.” More specifically, Shack claims the anti-SLAPP motions were frivolous because his complaints were not SLAPPs. Shack’s motion for sanctions is not properly before us because it is based on motions filed in the trial court. (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 197-198.) In any event, and for the reasons discussed, defendants’ anti-SLAPP motions and their responses to Shack’s claims on appeal have merit, and Shack’s motion for sanctions is denied.
In response to Shack’s motion for sanctions, Samsung requested monetary sanctions of $4,500 against Shack for the attorney fees it incurred in opposing Shack’s motion for sanctions (nine hours incurred in preparing opposition times $500 per hour). (Rule 8.276(a)(3) [Court of Appeal may impose sanctions for filing frivolous motion].) Samsung’s motion for sanctions is also denied, but without prejudice to its right to seek recovery of all its attorney fees and costs incurred on this appeal pursuant to a memorandum of costs in the trial court. (§ 425.16, subd. (c); rules 3.1700, 8.278.)
IV. DISPOSITION
The orders striking Shack’s complaints as to IMG, the LPGA, NBC, and Samsung pursuant to section 425.16 are affirmed. Shack’s and Samsung’s motions for sanctions are denied. Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King
J.


We concur:

/s/ Hollenhorst
Acting P.J.

/s/ Codrington
J.

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