Du Charme v. Ibew, Local 45

• Citation: 1 Cal.Rptr.3d 501,110 Cal.App.4th 107
• Decision Date: 03 July 2003
• Docket Number: No. A097898.,A097898.
• Court: California Court of Appeals
• Parties: Frank DU CHARME, Plaintiff and Respondent, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 45 et al., Defendants and Appellants.

1 Cal.Rptr.3d 501

110 Cal.App.4th 107

Frank DU CHARME, Plaintiff and Respondent, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 45 et al., Defendants and Appellants.

No. A097898.

Court of Appeal, First District, Division 2.

July 3, 2003.

Jeffrey B. Demain, San Francisco, Altshuler, Berzon, Nussbaum, Rubin & Demain, Sue D. Gunter, Sherman, Dunn Cohen, Leifer & Yellig, P.C., Michael Posner, Los Angeles, Posner & Rosen LLP, for Defendants and Appellants.

Roderick P. Bushnell, Bushnell, Caplan & Fielding, LLP, for Plaintiff and Respondent.

KLINE, P.J.

INTRODUCTION

The International Brotherhood of Electrical Workers, Local 45 (Local 45), the International Brotherhood of Electrical Workers (IBEW), and Cecil Wynn (collectively, defendants), appeal from an order denying their special motion to strike Frank Du Charme's defamation claim against them. They contend the trial court erred in ruling they had not satisfied the criteria of the anti-SLAPP (strategic lawsuits against public participation) statute (Code Civ. Proc, § 425.16 (section 425.16); see Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, 124 Cal.Rptr.2d 507, 52 P.3d 685), and consequently failing to award them attorney fees (§ 425.16, subd. (c)).

BACKGROUND

On August 11, 1998, Du Charme sued Local 45, the IBEW and Cecil Wynn for breach of contract and breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330), and defamation or libel. The gravamen of his complaint was that in August of 1997, he was wrongfully terminated from his employment as assistant business manager of Local 45, and a defamatory statement about his termination was posted on Local 45's Internet Web site.

Defendants removed the action to federal district court (28 U.S.C. § 1441) on the ground that all four causes of action were preempted by section 301 of the Labor Management Relations Act (LMRA section 301; 29 U.S.C. § 185 (section 301)). Du Charme moved to remand. After a hearing, the district court denied the motion to remand, ruling that Du Charme's contract claims were preempted and therefore subject to federal question jurisdiction (28 U.S.C. § 1331), and exercising supplemental jurisdiction over his remaining claims. Thereafter, the district court granted defendants' motion for judgment on the pleadings, finding, inter alia, that section 301 also preempted Du Charme's defamation claim. On appeal, the Ninth Circuit reversed the removal order and remanded the action to state court.

On June 14, 2001, defendants filed a special motion to strike Du Charme's defamation claim and for attorney fees and costs (§ 425.16, subds.(b) & (c)). The court granted Du Charme's motion to lift the statutory discovery stay (§ 425.16, subd. (g)) for a period of 75 days. After a hearing, the court denied the motion to strike. Defendants filed a timely notice of appeal.

DISCUSSION

I. The Anti-SLAPP Statute

"The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.]" (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1152, 69 Cal.Rptr.2d 329, 947 P.2d 291.) Our point of departure, therefore, is section 425.16, subdivision (a), which states in pertinent part, "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."

Section 425.16, subdivision (b)(1) provides that a cause of action arising from an act in furtherance of a person's constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike, unless the plaintiff establishes a probability he will prevail on the claim. Protected acts 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; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).) As the statute's plain language indicates, if the statement at issue falls within the ambit of subdivision (e)(1) or (2), defendants need not separately demonstrate that it concerned an issue of public significance. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, 81 Cal. Rptr.2d 471, 969 P.2d 564 (Briggs ).)

Section 425.16, subdivision (b)(1) requires the trial court to engage in a two-step process when determining whether to grant a motion to strike. First, it decides whether defendant has made a prima facie showing that the acts of which plaintiff complains were taken in furtherance of defendant's constitutional rights of petition or free speech in connection with a public issue. If defendant satisfies this threshold burden, plaintiff must then demonstrate a reasonable probability of prevailing on the merits. On appeal, we review these legal issues de novo. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, 102 Cal.Rptr.2d 864; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 473-474, 102 Cal.Rptr.2d 205 (Damon).)

"In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) This requirement has been interpreted to mean that when the trial court examines plaintiffs affidavits, it must consider whether he has presented sufficient evidence to establish a prima facie case, i.e., a showing by competent and admissible evidence, of facts which, if proven at trial, would support a judgment in his favor; when it considers defendant's affidavits, the court cannot weigh them against plaintiffs, but must decide only whether they defeat plaintiffs supporting evidence as a matter of law. Defendant need not establish that his action is constitutionally protected; rather, he must make a prima facie showing that plaintiffs claim arises from an act taken to further defendant's rights of petition or free speech in connection with a public issue. (Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1365, 102 Cal.Rptr.2d 864; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 675, 64 Cal. Rptr.2d 222 (Macias).)

By its terms, the anti-SLAPP statute is broadly construed. (§ 425.16, subd. (a).)

II. The Trial Court's Ruling

Du Charme alleged that Cecil Wynn, who was assigned to operate Local 45 when it was placed in trusteeship in conjunction with an investigation into its financial operations, posted on the local's Web site the false statement that Du Charme had been "removed from office for financial mismanagement." Defendants maintained the posting constituted free speech as defined in section 425.16, subdivision (e), and Du Charme could not show he would prevail on the merits. In denying their motion, the trial court found the statement was made neither before nor in connection with a proceeding, and the issue was not one of public interest. Having determined, therefore, that defendants had not met their threshold burden, the court did not reach the issue of whether Du Charme might prevail on the merits.

III. The Issues on Appeal

A. Timeliness

An anti-SLAPP motion "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." (§ 425.16, subd. (f).) Defendants argued below that the time during which the case was removed to federal district court should not count toward the statutory limit, and in the alternative, that the trial court should exercise its discretion to hear the otherwise late-filed motion. Du Charme argued that under U.S. ex rel. Newsham v. Lockheed Missiles & Space Co. (9th Cir.1999) 190 F.3d 963, 970-973, defendants could have filed their anti-SLAPP motion in federal court. At the hearing, the trial court called Du Charme's point "fairly valid," but expressly eschewed resolution of the timeliness issue in favor of exercising its right to hear the motion under subdivision (f)'s "giant discretionary clause."

On appeal, Du Charme contends the court abused its discretion, but offers no authority for the propositions that a trial court should be required to state reasons for exercising its discretion to hear a belated anti-SLAPP motion, and that a defendant should be required to demonstrate persuasive justification for the delay.

B. Protected Statement

On appeal, defendants contend the statement Wynn posted on the local's Web site falls within subdivision (e)(2), (3) and (4) of section 425.16. First, they maintain it was made in connection with an issue under consideration and review by an official proceeding authorized by law (§ 425.16, subd.(e)(2)), namely the trusteeship proceeding (29 U.S.C. §§ 461-66).

The relevant facts are these: Local 45 was placed in trusteeship in April 1997 after dues collection deficiencies resulted in revenue losses, which led to an IBEW investigation and an independent audit. Thereafter, the Department of Labor (DOL) undertook a full investigation. In August, business manager James Earl Jackson was terminated for embezzlement of union funds, among other things, and eventually pleaded guilty to credit card fraud. At about the same time, Du Charme received a letter from Wynn terminating his employment as assistant...