Mendiola v. Pekin

Filed 2/11/08 Mendiola v. Pekin CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this case, the trial court granted a special motion to strike plaintiff's complaint as a strategic lawsuit against public participation (SLAPP suit). This appeal follows from the entry of judgment against plaintiff Robert Mendiola (hereafter Mendiola) on his complaint against defendants Patrick Michael Pekin, the law offices of P. Michael Pekin, and Amanda Hernandez (hereafter Defendants). The granting of an anti-SLAPP motion to strike is a proper subject for appeal. (Code Civ. Proc., 425.16, subd. (j); see also Kyle v. Carmon (1999) 71 Cal.App.4th 901, 906.)

As we explain below, we conclude that the trial court acted properly in granting Defendants' motion under the anti-SLAPP statute as to some of Mendiola's causes of action, but not as to one of his causes of action.

Background Facts[1] and Procedural History

This action is one of a number of lawsuits filed in San Benito County involving the primary defendant Patrick Michael Pekin (hereafter Pekin).

On October 14, 2003, Pekin, an attorney, filed a pleading entitled "OPPOSITION OF LOS VALIENTES TO APPLICATION FOR ALTERNATIVE WRIT OF MANDATE" in case number CV 03 00103 (The McGovern lawsuit). The case, brought by Rebecca McGovern, a resident of San Benito County, sought to challenge a referendum that had been placed on the ballot by the San Benito County Board of Supervisors concerning "Measure G." During the spring of 2003, a citizens' organization qualified a measure entitled "San Benito Growth Control Initiative" (the Initiative) for the March 2004 ballot. Thereafter, when presented with the duly certified Initiative, the Board of Supervisors adopted the Initiative without alteration as Ordinance No. 760. Subsequently, the Farm Bureau filed a petition to have the action of the Board of Supervisors placed on the ballot for a referendum. Rebecca McGovern and Earth Justice filed a Petition for a Writ of Mandate asking the court to have the referendum taken off the ballot and leave "Measure G" as adopted by the Board of Supervisors. The main issue in the McGovern lawsuit was whether the board properly certified the referendum.

Pekin's pleading in the McGovern lawsuit included allegations that Ordinance 760 was drafted secretly between members of the Board of Supervisors and Mandy Rose of the Growth Control Initiative Committee and that this was not an isolated or accidental breach of the "Open Meeting Law." The pleading went on to allege that this violation of the "Open Meeting Law" was "just one of many thefts and corrupt schemes successfully perpetrated by Supervisor Scaggliottti [sic] by unlawful use of his position on the Board of Supervisors for the past decade." In the pleading, Pekin set forth specific instances of conduct by Supervisor Scagliotti, which he alleged demonstrated other "unlawful schemes to profit from his public office at the expense of others, and the public at large."[2] Pekin requested an evidentiary hearing at which he would prove that Ordinance 760 was a "violation of the Brown Act and is tied to the other corruption" that Pekin had set forth in the pleading.

The court did not allow Pekin's clients to intervene in the McGovern lawsuit. Thereafter, however, on December 9, 2003, Pekin filed a lawsuit on behalf of Juan Monteon, a citizen and taxpayer of San Benito County, against Supervisor Scagliotti, the Board of Supervisors, and the County of San Benito and Does 1 to 100 (the Monteon lawsuit). In general, the Monteon lawsuit alleged corruption by Scagliotti and others.[3]

Sometime in November 2004, as part of the Monteon lawsuit, Pekin filed a motion for restraining orders against Scagliotti et al (the TRO pleading). Pekin alleged that the restraining orders were necessary in order to protect James Stevens and Ken Speciale[4] from retaliation "for exposing the state and federal violations of law." Pekin sent Mendiola a "CITATION TO APPEAR" informing him that he was seeking the restraining orders and that he had a right to be present at the hearing. The "citation" is filed stamped November 29, 2004.

As part of the TRO pleading, Pekin filed points and authorities and the declaration of Amanda Hernandez in support of the motion, attached to which were two more declarations, one by Speciale and one by Stevens. Both these declarations were unsigned. According to Speciale's declaration, after Scagliotti purchased the Churchill nut plant and had it re-zoned he sold the property to Beaver Lumber for an immediate and unusually large profit. Speciale stated that he was the building inspector who inspected "Beaver Lumber" as part of a zoning change process. Speciale contended that he had "never seen a zoning [change] turn-around like the one that occurred with respect to the Beaver Lumber property. In fact it is really difficult to get zoning changes in San Benito County unless the zoning change applicant has influence in the Planning Department and/or the Board of Supervisors. By comparing the Beaver Lumber Company's zoning change from agricultural to manufacturing for Supervisor Scagliotti in just a few months with other land use decisions, the preferential treatment for Scagliotti becomes apparent."

Further, Speciale alleged that Supervisor Scagliotti and then San Benito County planning director Mendiola approached him in 1997 regarding a business venture. According to Speciale's declaration, he was to be the " 'front man' " for a business to be owned by Mendiola and Scagliotti and Mandy Rose;[5] Mendiola approached Speciale about opening a biker bar to coincide with the annual motorcycle rally in downtown Hollister; Mendiola explained that it would look like a conflict of interest if he and Scagliotti were "public partners." Speciale stated that he told Mendiola he did not have the money to invest in the venture, but Mendiola said it would not be a problem. He would get the financial backing. Speciale said he backed out of the venture because it was clear to him that Scagliotti and Mendiola were trying to use him to avoid having to report their financial interest in the proposed business. Speciale alleged that there were four people that wanted to set up the annual motorcycle rally. After he backed out of the venture, Scagliotti, Mendiola and Rose backed out. The person that "ended up doing the whole Rally himself" became the recipient of "unequal, harsh treatment in every land use application and decision which has come within Planning Director Mendiola and/or Supervisor Scagliotti's jurisdiction since then."

Subsequently, on December 7, 2004, John Sarsfield (Sarsfield), who was at the time the San Benito County District Attorney, sent a letter to Pekin advising him that he was a target of a criminal investigation by the San Benito County Criminal Grand Jury. This so-called Johnson letter (Johnson v. Superior Court (1975) 15 Cal.3d 248) made allegations against Pekin of extortion and attempted extortion of the County of San Benito Board of Supervisors, conspiracy to obstruct justice and pervert the due administration of the laws, perjury and suborning perjury all in connection with the Monteon v. Scagliotti litigation; and conspiracy to falsely move and maintain any suit, action or proceeding, by filing a series of malicious legal actions.[6]

According to Erin Musgrave, a staff writer for the Hollister Free Lance and other associated newspapers, Pekin reported to her that the testimony of two planning department employees would implicate Mendiola in the criminal and corruption charges against Scagliotti. Musgrave notes that she quoted Pekin in an article she wrote that was published on Wednesday, December 8, 2004, entitled "Grand Jury Investigates Pekin" in which she writes Pekin stated, "I've just had two men come forward and describe crimes by Scagliotti and Mendiola. If there was any doubt that Sarsfield was a puppet of Scagliotti and Mendiola, this pretty well resolves it."

Further, Musgrave states that for an article she authored that was published on December 9, 2004, Pekin told her that he was seeking protection for the two planning department employees "who he says will implicate Mendiola in the corruption charges against Scagliotti." In the article, Musgrave quoted Pekin as saying "This county is in a crisis because the District Attorney has joined an alliance with the criminals."

Defendants admit that since December 2003, they "have been involved in an anti-corruption lawsuit in San Benito County." The evidence shows that as part of that anti-corruption lawsuit, David Henderson, a former police officer turned private investigator was hired to investigate corruption concerns in San Benito County.[7]

In addition, Pekin admits that when Stevens and Speciale contacted him in late 2004 about their observations of corruption, he had a " 'source of information' with which [he] could, and did, inform the public of Mendiola's involvement with Scagliotti's corruption."

Mendiola testified before the grand jury against Pekin in the case of the People v. Patrick Michael Pekin.

On February 22, 2005, the grand jury returned a six-count indictment in that case charging Pekin with conspiracy to falsely move or maintain any suit (Pen. Code, 182, subd. (a)(3), count one); conspiracy to obstruct justice or the due administration of laws (Pen. Code, 182, subd. (a)(5), count two); preparing false documentary evidence (Pen. Code, 134, counts three and four); attempted subornation of perjury (Pen. Code, 126, 664, count five); and attempting to deceive the court or another party to a lawsuit (Pen. Code, 664; Bus. & Prof. Code, 6128, subd. (a)). The indictment was not filed with the court until the following day, February 23, 2005.

In a letter dated February 22, 2005, addressed to the members of the San Benito County Board of Supervisors, regarding what Pekin termed the "Failed County Legal System" Pekin stated that "Sarsfield refuses to investigate, much less prosecute criminals Planning Director Rob Mendiola and ex Supervisor Richard Scagliotti when the record of their illegal conduct has become clear, and this board knows it."

Thereafter, on May 9, 2005, Pekin filed a motion pursuant to section 995 to dismiss the grand jury indictment in People v. Patrick Michael Pekin. Judge Hedegard heard the motion at the end of which he granted Pekin's 995 motion. The People appealed the dismissal to this court. This court affirmed the trial court, finding that there was a total absence of evidence supporting a necessary element of the crimes charged. Specifically, as to each count, there was no evidence that Pekin knew of the falsity of Speciale's declaration. It is important to note that we did not address, nor could we know from the record presented in that case whether or not Speciale's statements contained in his unsigned declaration were false. However, we did note that when Speciale testified before the grand jury, Speciale testified that he stood by his statements. We filed our unpublished opinion in this case on November 28, 2006.

During the time the appeal was pending in People v. Patrick Michael Pekin H029229, on November 30, 2005, Mendiola filed a complaint against Defendants and David H. Henderson, Central Coast Investigation Services, Los Valientes, Juan Monteon and Does 1 to 250 alleging five causes of actiondefamation, abuse of process, intentional infliction of emotional distress, invasion of privacy, and interference with prospective economic advantage. Mendiola prayed for compensatory damages, special damages, cost of suit and punitive damages.

In his complaint, Mendiola alleged that beginning sometime in 2003, "Pekin and the other named defendants and DOES 11 through 250 entered into an illegal civil conspiracy the object of which was to cause citizens of San Benito County falsely to believe that various elected county officials and employees were 'corrupt' and/or engaged in illegal actions."

As to the defamation cause of action, Mendiola alleged that on five different occasions between December 3, 2004, and February 24, 2005 Pekin spoke to the press charging Mendiola with criminal activity and or corruption. These statements were republished in various newspapers and news Web sites.

As to the abuse of process cause of action, Mendiola alleged that starting on or about December 7, 2004, Pekin filed "spurious motions and false and unsigned declarations in the Monteon litigation in a transparent attempt to state and give publicity to false charges against Mendiola . . . ."

As to the intentional infliction of emotional distress, Mendiola alleged that because of Pekin's defamation and abuse of process he was "damaged in his professional and personal reputation and caused to suffer humiliation and extreme mental anguish . . . ."

As to the invasion of privacy cause of action, Mendiola alleged that Henderson obtained his bank records without his permission in violation of Title 15 United States Code sections 6821 and 6823, which act constituted an invasion of privacy.

As to the interference with the prospective economic relations cause of action, Mendiola alleged that the actions of the Defendants intended to and did damage his prospective economic advantage in that he could not interview for a job in his professional field without having to address Pekin's false allegations and answer questions concerning them, all of which jeopardized his job prospects and bargaining position with prospective new employers.

On January 19, 2006, Pekin, filed a special motion to strike Mendiola's complaint pursuant to Code of Civil Procedure section 425.16.[8] Pekin was acting on his own behalf, and that of the law offices of Michael Pekin, and Amanda Hernandez. Mendiola filed his opposition to the motion to strike on April 28, 2006.

On June 9, 2006, at the hearing on Defendants' motion, after hearing from counsel, Judge O'Farrell took the matter under submission. By a written order dated July 12, 2006, Judge O'Farrell granted Defendants' special motion to strike finding that their conduct "falls within the gambit of CCP 425.16 (e)(1), (2) and (3). The statements were made in conjunction with legislative and judicial proceedings on issues of widespread public interest that contributed to the public debate. (Willbanks v. Wolk (2004) 121 CA4th 883, 898.) All of Plaintiff's claims are based in part on conduct identified in CCP 425.16(e) because a 425.16 motion is 'not [on] the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability - - and whether that activity constitutes protected speech or petitioning." (Nevallier at 92.) [] Defendants also argue that the statements made to the reporter and the publications in the newspaper are protected by the litigation privilege. (CCP 47(b).) 'A privileged publication or broadcast is one made . . . (b) In any . . .(2) judicial proceeding. . . ' The privilege is applicable to any communication and all torts except malicious prosecution. 'It 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.' (Silberg v. Anderson (1990) 50 C3d 205, 212.) CCP 425.16 (e)(1) & (2) are coextensive with the litigation privilege. (Ruiz v. Harbor View Community Assn (2005) 134 CA4th 1456, 1467, fn. 3.) 'The purpose of the litigation privilege is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.' (Wentland v. Wass (2005) 126 CA4th 1484, 1492."

Judge O'Farrell found that the letter addressed to the San Benito County Board of Supervisors fell within Civil Code section 47, which "extends a conditional, qualified privilege against defamatory statements made without malice on subjects of mutual interest. . . . Plaintiffs must demonstrate malice. . . . Defendants have met their initial burden of showing that the alleged defamatory statement was made on a privileged occasion. The malice issue is a question of law. . . ."[9]

Turning to Mendiola's evidence of actual malice, Judge O'Farrell found that it consisted of Mendiola's "declaration where he denies and attempts to refute Defendants' allegations, 2) the declarations of Mr. Speciale and Mr. Stevens that were submitted in the Monteon matter 3) excerpts from grand jury testimony from Mr. Speciale, and 4) the deposition testimony of Defendants Pekin, Investigator Henderson and Hernandez."

After examining the transcript of the grand jury testimony in People v. Patrick Michael Pekin, Judge O'Farrell found that Speciale and Stevens, in "essence" told Defendants what was contained in their declarations. Further, they did not sign their declarations out of fear of "retribution." As to Pekin's deposition testimony, Judge O'Farrell found that it related to Pekin's involvement with Los Valientes and Henderson's investigation. As to Henderson's deposition testimony, Judge O'Farrell found that Henderson was questioned about his investigation, to whom he spoke during his investigation and to whom the information that he gathered was disseminated; that Henderson's testimony was about Los Valientes and Stevens's and Speciale's declarations. Moreover, Judge O'Farrell found that none of this deposition testimony provided support for a finding of malice.

Accordingly, Judge O'Farrell found that Mendiola had not met his burden of showing that Defendants "entertained serious doubts as to the truth of the publications or that they acted with willful falsity or recklessness." As a result, Judge O'Farrell granted Defendants's motion to strike.

This appeal ensued.

Discussion

Briefly, we review some general principles applicable to anti-SLAPP motions.

A SLAPP[10] suit is "a meritless suit filed primarily to chill the defendants exercise of First Amendment rights. [Citation.]" (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 815, fn. 2.) In other words, a SLAPP lawsuit is one that arises from constitutionally protected speech or petitioning activity that "lacks even minimal merit." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) Specifically, "SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.] Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. [Citation.] But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendants resources for a sufficient length of time to accomplish plaintiff's underlying objective. [Citation.] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [Citations.]" (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 816.)

Code of Civil Procedure section 425.16 provides a summary procedure for disposing of SLAPP suits through what have become known as "anti-SLAPP motions." Relevant here, the statute provides, "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States 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." (Code Civ. Proc., 425.16, subd. (b)(1).) Pertinent to this appeal, the statute defines " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' " to include: "(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 . . . . " (Code Civ. Proc., 425.16, subd. (e).)

In enacting Code of Civil Procedure section 425.16 the Legislature found and declared, "[T]here has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." (Code Civ. Proc., 425.16, subd. (a).)

The California Supreme Court has described the analysis and resolution of a motion to strike under Code of Civil Procedure section 425.16 as follows: It "requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon, supra, 29 Cal.4th at p. 67.) Thus, "[o]nly a cause of action that satisfies both prongs of the anti-SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal.4th at p. 89.)

In order to prevail, a defendant who moves under the anti-SLAPP statute to strike a cause of action as a SLAPP has no burden to demonstrate that the cause of action was brought with the intent of chilling the defendant's exercise of constitutional speech or petition rights. There simply is nothing in Code of Civil Procedure section 425.16 " 'requiring the court to engage in an inquiry as to the plaintiff's subjective motivations before it may determine [whether] the anti-SLAPP statute is applicable.' " (Equilon, supra, 29 Cal.4th at p. 58.)

As specified in a 1997 amendment to Code of Civil Procedure section 425.16, the anti-SLAPP statute, "shall be construed broadly." (Code Civ. Proc.,  425.16, subd. (a), as amended by Stats. 1997, ch. 271,  1; cf. Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114, fn. 3 [an appellate court, whenever possible, should interpret the First Amendment and section 425.16 in a manner "favorable to the exercise of freedom of speech, not its curtailment"].)

The California Supreme Court has rejected as unwarranted narrow constructions of Code of Civil Procedure section 425.16. (See, e.g., City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75 (City of Cotati) [defendant not required to show that action claimed to be SLAPP had actual effect of chilling defendants exercise of free speech or petition rights]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 (Briggs) [anti-SLAPP statute does not require defendant to show separately that its constitutionally protected activity "concern[s] an issue of public significance"].)

Standard of Review

" 'Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider "the pleadings and supporting and opposing affidavits upon which the liability or defense is based." [Citation.] However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, . . . [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citation.]" (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)

Thus, our review is conducted in the same manner as the trial court in considering an anti-SLAPP motion.

In determining whether Defendants have met their initial burden of establishing that Mendiola's action arose from protected activity, we consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Code Civ. Proc., 425.16, subd. (b)(2); see also City of Cotati, supra, 29 Cal.4th at p. 79; Navellier, supra, 29 Cal.4th at p. 89.)

The second prongi.e., whether Mendiola has shown a probability of prevailing on the meritsis considered under a standard similar to that employed in determining nonsuit, directed verdict or summary judgment motions. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010; Flatley v. Mauro, supra, 39 Cal.4th at p. 312 [section 425.16 establishes a procedure similar to a summary judgment-like procedure].)

The California Supreme Court has observed that "in order to establish the requisite probability of prevailing [citation], the plaintiff need only have ' "stated and substantiated a legally sufficient claim." ' [Citations.] 'Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' [Citations.]" (Navellier, supra, 29 Cal.4th at pp. 88-89.)

As is the case with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 655, disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) Plaintiff may not rely solely on the complaint, even if verified; instead, plaintiff's proof must be made upon competent admissible evidence. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1010.) In reviewing plaintiff's evidence, the court does not weigh it; rather, it simply determines whether plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. (Ibid.)

Mendiola's causes of action arose directly from Defendants's acts or statements or writings, or alleged acts or statements, made in connection with litigation they were bringing in the Monteon lawsuit. Filing a lawsuit is an exercise of one's constitutional right of petition, and statements made in connection with or in preparation of litigation are subject to Code of Civil Procedure section 425.16. (Briggs, supra, 19 Cal.4th at p. 1115.) Further, the plain language of Code of Civil Procedure section 425.16, subdivision (b)(1) expressly makes subject to a special motion to strike "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." (Italics added.)[11]

Mendiola posits the following questions to aid in this court's review. We address questions one through three together, as does Mendiola.

"1. Can admitted libels by defendants charging plaintiff, a public official who has no criminal record, with being a 'criminal' and engaging in 'criminal activities' be subject to an anti-SLAPP motion where the defendants' sole defense is alleged lack of 'actual malice,' and there is no evidence at all of any criminal activity by plaintiff, and the uncontradicted evidence shows that the libelous charges were 'made up' by the defendants?"

"2. Can a libel action brought by a public official falsely accused, as defendants herein admit, of being a 'criminal' and engaging in 'criminal activity' be said to have the 'actual objective' under the anti-SLAPP statu[t]e of deterring defendant's First Amendment rights?"

"3. Is not at least a prima facie case with at least minimal merit demonstrated, such as to defeat an anti-SLAPP motion, where defendants admit libeling plaintiff by widely disseminating charges he is a 'criminal,' charges the uncontradicted evidence shows they 'made up,' and the applicable statutory standard requires the court to accept all of plaintiff's admissible evidence on liability and reject all that opposed to it?"

For purposes of this case only, we start from the position that the allegations made by Defendants charging Mendiola with corruption and criminal conduct, were false, and that Mendiola was at the time a public official. Thus, Mendiola had the burden of proving that the false statements were made with actual malice as defined in New York Times Co. v. Sullivan, supra, 376 U.S. 254.[12]

"A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false 'statement was made with "actual malice"that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' [Citations.]" (Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 659 [109 S.Ct. 2678]; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860 [liability requires clear and convincing proof of a knowing falsehood or of reckless disregard for the truth].)

"To demonstrate a probability of prevailing under the anti-SLAPP statute's second prong, the plaintiff must make ' "a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' [Citation.] Thus, in considering whether plaintiffs have met their burden of demonstrating a probability of prevailing on the actual malice issue here, we must determine whether, if credited, their evidence is sufficient to sustain a judgment rendered in their favor by the trier of fact." (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 86.) Nonetheless, the requirement that a public official plaintiff demonstrate actual malice calls for a different analysis.

"Normal principles of substantial evidence review do not apply to the appellate court's independent review of an actual malice determination in a First Amendment libel case." (McCoy v. Hearst Corp., supra, 42 Cal.3d at p. 846, fn omitted.) " 'The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. . . . It reflects a deeply held conviction that judges . . . must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of "actual malice." ' [Citation.]" (Robertson v. Rodriguez(1995)36 Cal.App.4th 347, 358.)

Mendiola asserts that the "uncontradicted evidence" shows that the "charges" made by Pekin were "made up" by "principal defendant, Michael Pekin" In support of his position that Pekin admitted he made up the charges, Mendiola cites to the unsigned declarations of Stevens and Speciale submitted to the court in the Monteon lawsuit and Speciale's grand jury testimony.

Just as Judge O'Farrell found in this case, and this court determined in People v. Patrick Michael Pekin, there was no evidence that Pekin knew that there were any false statements in Speciale's declaration.

Nevertheless, Mendiola contends that while Pekin makes "professions of good faith" the uncontradicted evidence "shows that even after being told by his erstwhile informant that his unsigned declaration had to be correctednot in just one, but many respectsPekin went ahead and blasted the 'criminal' charge to the press[,] which reported it widely." Accordingly, relying on St. Amant v. Thompson (1968) 390 U.S. 727 [88 S.Ct. 1323] (St. Amant), Mendiola argues that at a minimum Pekin's charges were recklessly made.

"Reckless disregard for the truth 'is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.' (St. Amant, supra, 390 U.S. at p. 731 . . . .) Lack of due care is not the measure of liability, nor is gross or even extreme negligence. [Citation.]" (McCoy v. Hearst Corp., supra, 42 Cal.3d at p. 860 (McCoy).)

"To support a finding of actual malice, the failure to investigate must fairly be characterized as ' "the purposeful avoidance of the truth" ' or the ' "product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges." ' " (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 277.)

As the McCoy court noted, St. Amant named several circumstances, which may give rise to serious doubts concerning professions of good faith. " 'The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.' " (McCoy, supra, 42 Cal.3d at p. 860.)

Mendiola argues that at "a minimum, there were obvious 'reasons to doubt . . . the accuracy' of the alleged non-disclosure charge[13] even if, fancifully, it had in fact come from the county employee, who denies ever saying this. Even after learning from the Grand Jury testimony that there had been no failure to make the required financial disclosures . . . Pekin continued, within days, to make the 'criminal' charge again, next to plaintiff's employer. And over a year later, in April 2006 and after plaintiff's complaint herein was filed and served on him, Pekin again raised the same false alleged failure to disclose charge, this time in an abortive attempt to amend his Monteon complaint."

A "mere failure to investigate the truthfulness of a statement, even when a reasonably prudent person would have done so, is insufficient" to demonstrate actual malice. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1169.)

Here we find no evidence to permit the conclusion that Defendants entertained serious doubts as to the truth of the statements they made. As this court found in People v. Patrick Michael Pekin, during his grand jury testimony Mr. Speciale verified that he might have told defendant things that were in his declaration or they might have been conclusions "from a longer statement" that he made. Speciale confirmed that his declaration was written from statements that he made and then the declaration was presented to him to verify and sign. Mr. Speciale conceded that his declaration came from him "making a statement and things taken out of context and mixed up, not taken verbatim, and then made to look like it was a quote, and it was not a quote." However, Speciale confirmed that he told defendant he would not sign his declaration for fear of retaliation. Although Speciale did tell defendant that there were problems with his declaration, Speciale did not elaborate on whether he told Pekin what the "problems" were.

Here, Pekin did not fabricate a story, nor was it the product of his imagination. Furthermore, it was not based wholly on an unverified anonymous telephone call. Both Stevens and Speciale were public employees who worked for Mendiola. They contacted or were contacted by Pekin regarding corrupt practices they observed. In short, there were no obvious reasons to doubt the veracity of these informants or the accuracy of their reports. Accordingly, we conclude that Mendiola has not demonstrated Defendants acted with actual malice by clear and convincing evidence.

Mendiola argues that Pekin refused to disclose what investigation he had done regarding Mendiola's financial disclosures on the grounds of work product privilege. Accordingly, Mendiola contends that until he can get discovery on this point it remains unknown whether Pekin actually had copies of his financial disclosures when he argued to the court in the Monteon lawsuit that they had never been made. We point out that although the anti-SLAPP statute suspends all discovery proceedings in the action until notice of entry of an order ruling on a motion to strike, the court, "on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding" Code of Civil Procedure, section 425.16, subdivision (g). (Code Civ. Proc., 425.16, subd. (g).)

Defamation Cause of Action

There appear to be three different instances where Pekin called or implied that Mendiola was a criminal. First, when he told Erin Musgrave that he had just had two men come forward and describe crimes by Mendiola and when Pekin told Musgrave the District Attorney had joined an alliance with the "criminals." Second, when he sent a letter to the San Benito County Board of Supervisors regarding the District Attorney's refusal to investigate "criminals Planning Director Rob Mendiola and ex Supervisor Richard Scagliotti" Third, when Pekin attempted to name Mendiola as a named defendant in the Monteon lawsuit and accused him of failing to file complete statements of economic interests.

Slander and libel are both forms of defamation (Civ. Code, 44). Slander consists of a false and unprivileged oral publication (Civ. Code, 46). Libel consists of a false and unprivileged publication by writing. To establish a prima facie case for defamation, a plaintiff must demonstrate a publication to third persons of specified false matter that has a natural tendency to injure or that causes special damage. (See Smith v. Maldonado (1999) 72 Cal.App.4th. 637, 645.) Certain statements are deemed to constitute slander per se, including statements charging the commission of crime. (Civ. Code, 46, subd. 1; Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 829.)

Accordingly, we look to each of the instances when Pekin called or implied that Mendiola was a criminal to determine if Mendiola produced sufficient evidence to demonstrate a probability of prevailing on the merits. We start with the pleading in the Monteon lawsuit.

The Pleading in the Monteon Lawsuit

Commonly known as the "litigation privilege," Civil Code section 47, subdivision (b), protects statements made in the course of judicial proceedings. (Civ. Code. 47, subd. (b)(2).) The privilege is absolute because it applies, if at all, regardless of whether the communication was made with malice or the intent to harm. (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1302.) In this case, the litigation privilege is relevant to the second prong of the anti-SLAPP analysis in that it presents a substantive defense that Mendiola must overcome to demonstrate a probability of prevailing. (Flatley v. Mauro, supra, 39 Cal.4th at p. 322.)

"Although originally enacted with reference to defamation actions alone [citation], the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution. [Citations.]" (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29.)

As the California Supreme Court explained the rule in the landmark case Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg), "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."

Pekin's pleading in the Monteon lawsuit fulfills all four Silberg requirements. Thus, it is absolutely privileged. (Flatley v. Mauro, supra, 39 Cal.4th at p. 322.) Accordingly, Mendiola cannot show a probability of prevailing on the merits.

Statements Made to Erin Musgrave

As noted earlier, Mendiola cannot show actual malice under the New York Times v. Sullivan test. We reiterate that we find no evidence to permit the conclusion that Pekin entertained serious doubts as to the truth of the statements he made. We repeat, there were no obvious reasons to doubt the veracity of these informants or the accuracy of their reports. Mendiola has not produced evidence to substantiate his claim that Pekin acted with malice. Therefore, he cannot show a probability of prevailing on the merits.

The Letter to the San Benito County Board of Supervisors

As noted, Judge O'Farrell found that the letter sent to the San Benito County Board of Supervisors fell within Civil Code section 47, subdivision (c) which extends a conditional, qualified privilege against defamatory statements made without malice on subjects of mutual interest. Relevant here, Civil Code section 47, subdivision (c) provides, "A privileged publication or broadcast is one made: [] (c) In 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."

Nevertheless, Mendiola argues that even after learning from the grand jury that he had not failed to make the required financial disclosures, Pekin continued to make criminal charges to Mendiola's employer. Mendiola's argument is based on the supposition that Pekin learned from the grand jury that Mendiola did file all the financial disclosures that he was required to file.

Mendiola conveniently forgets that Pekin was not allowed to be present at the grand jury hearing. Furthermore, Pekin sent the letter on the same day that the grand jury handed down the indictment in People v. Patrick Micheal Pekin, but the indictment was not filed with the court until the next day. In every criminal case the defendant is entitled to a transcript of the testimony before the grand jury. (Pen. Code, 924.4.) However, only after an indictment is found or an accusation presented, must the reporter certify and file with the county clerk an original transcription of the shorthand notes taken of testimony before the grand jury. The reporter must complete such certification and filing within ten days after the indictment has been found or the accusation presented, unless the court for good cause extends the time. The time may not be extended more than 20 days. (Pen. Code, 938.1.)

Accordingly, on the day that Pekin sent his letter to the Board of Supervisors, he had no way of knowing if Mendiola had made the required financial disclosures from the grand jury testimony. Again, Mendiola cannot show malice. Consequently, again he cannot substantiate his claim that Pekin acted with actual malice. Therefore, again, he cannot demonstrate a probability of prevailing on the merits.

With respect to Mendiola's defamation claims, we are aware that the actual malice requirement of the New York Times test places a substantial barrier to claims brought by a public official. Nevertheless, this barrier was erected in recognition of the fact that "erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.' " (New York Times v. Sullivan, supra, 376 U.S. at pp. 271-272.) "This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures." (Gertz v. Robert Welch, Inc. (1973) 418 U.S. 323, 342-343 [94 S.Ct. 2997].)

We turn to Mendiola's remaining questions. We address questions four, five and six together.

"4. Are defendants barred from moving to dismiss under the anti-SLAPP statute where the uncontradicted evidence shows that, as part of a scheme to 'target' and discredit plaintiff, a public official, which led to admitted false charges of 'criminality,' defendants illegally and without permission obtained his personal bank records, in clear violation of a Federal statute and thereby a felony?"

"5. Are defendants barred from moving to dismiss under the anti-SLAPP statute where they sought to extort concessions from plaintiff's employer, the County of San Benito, in a lawsuit to which plaintiff was not a party, by threatening to 'expose' plaintiff's alleged but non-existent 'criminality' (and also his 'personal' information) and further violated, prima facie, up to five criminal statutes in an attempt to make such false charges in court, based on an unsigned false declaration, in an apparent follow through on the extortion threat?"

"6. Does the anti-SLAPP statute intended to protect first amendment rights extend to bar a cause of action based on invasion of privacy for a felonious obtaining of a plaintiff's personal bank records without permission? (Is there a free speech right to commit a federal crime?)"

Relying on Flatley v. Mauro, supra, 39 Cal.4th 299, Mendiola argues that a "party guilty of extortion as a matter of law cannot make the first step showing under the anti-SLAPP statute. Here there was not just attempted extortion but clear and uncontradicted evidence of a felony violation under Federal law for illegally and without permission obtaining Mendiola's personal bank records . . . ." Furthermore, "defendants: 1) feloniously obtained Mendiola's bank records 2) attempted to extort the county by threatening to reveal alleged evidence of Mendiola's non existent 'criminality' and 3) prima facie violated possibly as many as five criminal statutes by filing false, unsigned declarations in an abortive attempt to 'cite' Mendiola into a proceeding in Monteon litigation as part of their attempt to smear him."

At the outset, we agree with Mendiola that Flatley v. Mauro, supra, 39 Cal.4th 299, stands for the proposition that a defendant is precluded from using the anti-SLAPP statute if the underlying speech or petitioning activity is illegal as a matter of law. (Id. at p. 317.)

Our opinion in People v. Patrick Michael Pekin H029229 disposes of Mendiola's claims that Defendants violated as many as five criminal statutes.

As to Mendiola's claim that Pekin is guilty of attempted extortion, we find no such evidence to support that assertion, which would satisfy the standard announced in Flatley v. Mauro, supra, 39 Cal.4th 299. Mendiola's claim is based on something that Pekin is supposed to have said when he telephoned Nancy Miller. Miller was at the time an attorney at the law firm of Miller, Owen and Trost working for San Benito County on the Monteon lawsuit.

Mendiola's evidence that Pekin is guilty of attempted extortion consists of a copy of a letter sent by Miller to "Michael Pekin" in which she states, "This letter will confirm our two conversations of today's date." The letter goes on, "You phoned me this morning and threatened to go to the press with allegations of misconduct, conspiracy and favoritism 'amounting to a felony' by Planning Director Rob Mendiola and Supervisor Kessler. You indicated that unless I agreed to your demands of 1) postponement of the depositions scheduled with numerous county employees; 2) movement of our trial date to a later specified date; and 3) agreement to a case management conference to be held next week; you would alert the press and follow a 'scorched earth' plan. . . . [] This afternoon I called you to confirm that we had no agreement and stated that the depositions needed to go forward as scheduled. You indicated that you would not show up at your own scheduled depositions. You then made a new demand: the only way you would go forward with the depositions was if I had a signed statement from Supervisor Kessler that she would not object to the testimony in the depositions if it was later used against her."

The defendant's conduct in Flatley v. Mauro, supra, 39 Cal.4th 299 that "was undeserving of the protection of the anti-SLAPP statute" was an attorney's attempt to extort money from an entertainer who engaged in consensual sexual activity with the attorney's client. The attorney threatened the entertainer that, unless the entertainer paid $100 million to settle the claims of battery and emotional distress by his client, the attorney would tell the news media that the entertainer had raped the woman. The California Supreme Court found that this was criminal extortion that did not deserve anti-SLAPP statute protection because it was "not constitutionally protected activity" for purposes of the statute. (Id. at pp. 325, 330, 333.)

In order for an underlying action to be illegal as matter of law, its illegality must be conceded by the defendant or conclusively established by the evidence to be so. (Flatley v. Mauro, supra, 39 Cal.4th at p. 320.) The California Supreme Court emphasized in Flatley v. Mauro that its conclusion that the defendant-attorney's communication constituted criminal extortion as a matter of law was based "on the specific and extreme circumstances" of the case. (Id. at p. 332, fn. 16.)

Even if this court were to assume for the sake of argument that Miller's letter was admissible evidence, the letter does not show Pekin to be guilty of attempted criminal extortion.

Relevant here, "Extortion is . . . the obtaining of an official act of a public officer, induced by a wrongful use of force or fear . . . ." (Pen. Code, 518.) "Fear, such as will constitute extortion," may be induced by a threat, either to do an unlawful injury to the person or property of the individual threatened or of a third person; or, to accuse the individual threatened, or any relative of his, or member of his family, of any crime; or, to expose, or to impute to him or them any deformity, disgrace or crime; or, to expose any secret affecting him or them. (Pen. Code, 519.)

Thus, attempted extortion would be an attempt to obtain an official act of a public officer induced by a threat, to inflict an unlawful injury on the person threatened or a third person or the property of the person threatened or a third person; or to accuse the person threatened or a relative of the person threatened or a member of the family of the person threatened of a crime; or to expose, or impute to the person threatened or a relative of the person threatened or a member of the family of the person threatened any deformity, disgrace or crime; or to expose any secret affecting the person threatened, a relative of the person threatened, or a member of the family of the person threatened. (Pen. Code, 519.)

We find that the evidence that Mendiola presented below does not constitute criminal extortion as a matter of law. We find no evidence that Mendiola was Miller's relative or family member or that Pekin threatened to expose a secret affecting Miller or one of her relatives or family members.

"[R]ude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing [do not] necessarily constitute extortion." (Flatley v. Mauro, supra, 39 Cal.4th at p. 332, fn. 16.)

Finally, we turn to Mendiola's allegation that Defendants are guilty of feloniously obtaining Mendiola's bank records. It is a violation of Title 15 United States Code section 6821 for any person to obtain customer information of a financial institution relating to another person by making a false, fictitious, or fraudulent statement or representation to an officer, employee, or agent of a financial institution; or by making a false, fictitious, or fraudulent statement or representation to a customer of a financial institution; or by providing any document to an officer, employee, or agent of a financial institution, knowing that the document is forged, counterfeit, lost, or stolen, was fraudulently obtained, or contains a false, fictitious, or fraudulent statement or representation. (15 U.S.C 6821, subd.(a)(1)(2) & (3).) Furthermore, it is a violation of Title 15 United States Code section 6821 for a person to solicit another person to obtain customer information of a financial institution, knowing that the person will obtain, or attempt to obtain, the information from the institution in any manner described in subsection (a) of this section. (15 U.S.C. 6821(b).)

Mendiola's proof that Defendants violated Title15 United States Code sections 6821 and 6823 consists of a declaration by Mendiola in which he alleges that in the "summer of 2004" he was "interviewed by investigator Henderson co-defendant herein" who