Gallant v. City of Carson

• Decision Date: 20 April 2005
• Docket Number: No. B176052.,B176052.
• Citation: 27 Cal.Rptr.3d 318,128 Cal.App.4th 705
• Court: California Court of Appeals Court of Appeals
• Parties: Ann Marie GALLANT, Plaintiff and Appellant, v. CITY OF CARSON et al., Defendants and Respondents.

27 Cal.Rptr.3d 318

128 Cal.App.4th 705

Ann Marie GALLANT, Plaintiff and Appellant, v. CITY OF CARSON et al., Defendants and Respondents.

No. B176052.

Court of Appeal, Second District, Division 1.

April 20, 2005.

Rehearing Denied May 6, 2005.

Review Denied August 10, 2005.^*

Horowitz & Clayton, Craig A. Horowitz, Wayne D. Clayton and Richard G. Munoz, Los Angeles, for Plaintiff and Appellant.

Seyfarth Shaw, Lorraine H. O'Hara and Dennis C. DePalma, Los Angeles, for Defendants and Respondents.

MALLANO, J.

An employee of a city sued the city and two of its employees for defamation and wrongful termination, claiming she was fired and defamed for exposing corruption in the city's bidding for trash collection. The defamation cause of action was stricken under the statute prohibiting strategic lawsuits against public participation (SLAPP) (Code Civ. Proc., § 425.16), and the employee appeals. We reverse because the employee "has established that there is a probability that [she] will prevail on the claim." (Id., § 425.16, subd. (b)(1).) (All further statutory references are to the Code of Civil Procedure unless otherwise indicated.)

I BACKGROUND

Ann Marie Gallant was General Manager of the City of Carson. Her duties included overseeing the city's waste disposal services. As she explained in a declaration filed in connection with the hearing on defendants' special motion to strike under the anti-SLAPP statute: "On January 8, 2002, I received from Joyce Cagaanan, a Solid Waste Specialist who reported to me, a Facsimile dated January 2, 2002 from Robert Pryce to James Ambroso. . . . Pryce was at the time a contract attorney for the City of Carson. Ambroso was [an] executive representing [Browning-Ferris Industries of California, Inc.,] in the bid process concerning the Solid Waste Franchise Agreement for the City of Carson. Upon review of the fax, I realized that this was an unauthorized disclosure of Waste Management's confidential bid. I immediately reported this to the City Manager, Jerome Groomes. Groomes instructed me not to advise, discuss, contact or inform the City Council as to the receipt of the facsimile. Groomes stated that he would handle it. I advised Groomes that the whole City Council needed to be advised of the facsimile, and if he did not do so, I had no choice but to do so. Within weeks of advising the City Council of the bid rigging issue, law enforcement agencies, including the FBI, conducted an investigation surrounding the illegal conduct of city officials. I was interviewed by the FBI, and told them the truth." On September 17, 2003, Groomes told Gallant that she was being terminated.

Her declaration continued: "I learned from a number of subordinate employees in the Development Services Work Group that Groomes had spoken to staff members and community members and told them that I was terminated because I was incompetent . . . .

". . . I have also learned that Sybil Brown, a community member of Carson, told other persons at a Boards and Commissions training on September 20, 2003, that she was told by Groomes that I was terminated because I was incompetent.

". . . I was told by City Engineer Victor Rollinger, a managerial employee at the City of Carson, that in early 2003 during the period Groomes was lobbying for my termination, Assistant City Manager George Penn approached Mr. Rollinger and told Mr. Rollinger I had done something illegal with respect to a purchase order."

Although Gallant does not expressly state that she was not incompetent or deny doing anything illegal, the gist of her declaration is that she was terminated for reporting the misdeeds of Attorney Pryce to the city council and cooperating with the FBI regarding Pryce.

Gallant filed this suit for wrongful termination and defamation against the City of Carson and its City Manager, Jerome Groomes, and Assistant City Manager, George Penn. With regard to her defamation claim, Gallant alleged that defendants "published false, unprivileged statements with malice, to non-interested third parties about Gallant. This statement included false and unprivileged accusations that Gallant was incompetent. The statements conveyed to Gallant's co-workers and other members of the public that she was incompetent, a statement known at the time to be false."

Defendants filed an anti-SLAPP motion, contending that (1) the alleged defamatory statements came within the scope of protected communications (see § 425.16, subd. (e)) and (2) Gallant could not demonstrate a probability of success on the merits (see id., subd. (b)(1)). Gallant filed opposition papers, disputing both points. By order dated May 12, 2004, the trial court granted the motion and dismissed the case. Gallant appealed.

II DISCUSSION

Assuming for the sake of discussion that the anti-SLAPP statute applies here, we reverse because Gallant "has established that there is a probability that [she] will prevail on the claim." (§ 425.16, subd. (b)(1).) By this we mean only that she has offered evidence, if credited at trial, demonstrating that she is likely to succeed.

The alleged statements—that Gallant is incompetent—are defamatory. "[T]he alleged defamatory statements are not protected if they imply an assertion of false objective fact. The statement that plaintiff `is an incompetent [employee] . . .' implies a knowledge of facts which lead to this conclusion and further is susceptible of being proved true or false. . . . Since the statement implies that plaintiff is generally disqualified for [her] profession, it is defamatory if it is false. . . . Consequently, the trial court erred in finding this statement was not defamatory because of being an `opinion.'" (Gill v. Hughes (1991) 227 Cal.App.3d 1299, 1309, 278 Cal.Rptr. 306, citation omitted.)

Accordingly, the facts contained in Gallant's declaration, if properly before the court as evidence, "establish[ ] that there is a probability that [she] will prevail on [her] claim [for defamation]." (§ 425.16, subd. (b)(1).)

Although defendants interposed evidentiary objections against Gallant's declaration, they did not seek or obtain rulings on them at the hearing. Defendants therefore waived their objections under Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (Ann M.), superseded by statute on another point as stated in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, at pages 767-768, 107 Cal. Rptr.2d 617, 23 P.3d 1143. In Ann M., the Supreme Court stated: "In the trial court, defendants made a series of objections to evidence submitted by Ann M. in opposition to the summary judgment motion. The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal." (Ann M., supra, 6 Cal.4th at p. 670, fn. 1, 25 Cal. Rptr.2d 137, 863 P.2d 207.)

The Ann M. rule, applied in the summary judgment context, also governs anti-SLAPP motions because the two types of proceedings have similar standards. As our Supreme Court recently stated: "[The anti-SLAPP statute] establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192, 25 Cal.Rptr.3d 298, 106 P.3d 958.) And as we stated at greater length in Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 118 Cal.Rptr.2d 313 (Schoendorf): "`It is recognized, with the requirement [in the anti-SLAPP statute] that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions . . . and requires that the showing be made by competent admissible evidence within the personal knowledge of the declarant. . . . Averments on information and belief are insufficient. . . . As in a motion for summary judgment, the pleadings frame the issues to be decided.' . . .

"`Generally, a party cannot simply rely on the allegations in its own pleadings, even if verified, to make the evidentiary showing required in the summary judgment context or similar motions. . . . The same rule applies to motions under [the anti-SLAPP statute]. Here, like motions under [the summary judgment statute], the pleadings merely frame the issues to be decided. Similarly, an averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim.... "An assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. . . . Such evidence must be admissible."'" (Schoendorf, supra, 97 Cal.App.4th at p. 236, 118 Cal.Rptr.2d 313, quoting Church of Scientology v. Wollersheim (1996) 42 Cal. App.4th 628, 654, 656, 49 Cal.Rptr.2d 620, overruled on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685.)

The anti-SLAPP statute states that "[i]n making its determination [whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim], 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).) The statute is silent as to the kind of evidence required of the plaintiff.

The summary judgment statute, on the other hand, provides that "[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (§ 437c, subd. (c).) And it further provides that "[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is...