Neville v. Chudacoff

• Decision Date: 12 March 2008
• Docket Number: No. B198253.,B198253.
• Citation: 160 Cal.App.4th 1255,73 Cal.Rptr.3d 383
• Court: California Court of Appeals Court of Appeals
• Parties: Mark NEVILLE, Cross-Complainant and Appellant, v. Greg CHUDACOFF et al, Cross-Defendant and Respondent.

73 Cal.Rptr.3d 383

160 Cal.App.4th 1255

Mark NEVILLE, Cross-Complainant and Appellant, v. Greg CHUDACOFF et al, Cross-Defendant and Respondent.

No. B198253.

Court of Appeal, Second District, Division 5.

March 12, 2008.

Law Offices of Paul Ottosi and Paul Ottosi for Cross-Complainant and Appellant.

Julia S. Swanson, Los Angeles, for Cross-Defendant and Respondent.

MOSK, J.

INTRODUCTION

This is an appeal from an order granting a special motion to strike under the anti-SLAPP statute. (Code Civ. Proc, § 425.16.)¹ An employer fired one of its employees amid allegations that the employee had misappropriated customer lists and solicited his employer's customers to start a competing business. Several months before litigation was commenced by the employer against its former employee, the employer's attorney drafted a letter to the employer's customers that accused the employee of breach of contract and misappropriation of trade secrets, and that "suggest[ed]" to the customers that, to avoid potential involvement in any ensuing litigation "as a material witness, or otherwise," the customers should not do business with the former employee. The employee commenced a defamation action² against the former employer. We hold that, in the circumstances of this case, the lawyer's letter to the customers was a "writing made in connection with an issue under consideration or review by a ... judicial body" (§ 425.16, subd.(e)(2)) and therefore covered by the anti-SLAPP statute because the letter directly related to the employer's claims against the employee, and the employer was seriously and in good faith contemplating litigation against the employee. We therefore affirm.

BACKGROUND

Cross-complainant and appellant Mark Neville is a former employee of M.J.K. Trading Co., Inc., which does business as Maxsecurity, Inc. ("Maxsecurity"). Maxsecurity is in the business of developing and installing high-end audio and security systems. Maxsecurity terminated Neville's employment in December 2004, asserting that Neville, while employed by Maxsecurity, misappropriated its customer lists and secretly solicited its customers so he could start a competing business, in violation of Neville's written employment and confidentiality agreement with Maxsecurity.

Cross-defendant and respondent Gregory Chudacoff is an attorney who represented Maxsecurity in connection with its dispute with Neville. At Maxsecurity's request, Chudacoff drafted a letter dated May 13, 2005 (the Letter) addressed to Maxsecurity's customers. Chudacoff gave the Letter to Maxsecurity which, Neville alleges, sent copies to its existing and former customers. The reference line of the Letter read, "Maxsecurity v. Mark Neville, dba ABD Audio and Video" The body of the Letter contained the following:

"Please be advised that this office represents Maxsecurity in the above-matter [sic]. It has recently come to our attention that a former employee of Maxsecurity may have been in contact with you, or may attempt to contact you. The name of the former employee is Mark Neville, and he may be representing himself as ABD Audio and Video.

"Mr. Neville is in direct violation of an employment and confidentiality agreement he had with Maxsecurity. Mr. Neville's relationship with Maxsecurity ended at the end of last year. Contact and/or communication with Maxsecurity customers was, and is, specifically prohibited under his employment contract. We have notified Mr. Neville of his breach and shall be aggressively pursue [sic] all available remedies.

"Any work contracted with Mr. Neville or his company would be in violation of our agreement with him. In order to avoid any involvement in litigation that my [sic ] arise between us and Mr. Neville (as a material witness, or otherwise), we suggest that you have no further dealings with Mr. Neville or his company. You should know that any monies paid to him or his company properly belong to Maxsecurity, and we shall, if necessary, seek an accounting of all monies paid out."

In September 2005,³ Maxsecurity filed suit against Neville. In its second amended complaint, Maxsecurity stated eight causes of action arising from Neville's alleged misappropriation of Maxsecurity's customer lists and related misconduct. In May 2006, Neville filed a cross-complaint against Maxsecurity and its principals stating six causes of action, including a claim for defamation arising from alleged "false accusations, representations statements and comments" made by Maxsecurity to its "existing and former customers impugning and maligning the character and business reputation of [Neville]." In July 2006, Neville filed an amendment to the cross-complaint naming Chudacoff as a fictitious Roe defendant.

Chudacoff moved to strike the cross-complaint pursuant to the anti-SLAPP statute, arguing that Neville's claims against him arose from the Letter and that the Letter was constitutionally protected petitioning activity within the meaning of section 425.16, subdivisions (e)(2) and (e)(4).⁴ The trial court concluded that the Letter was related to the dispute between Maxsecurity and Neville, and was therefore petitioning activity protected by the anti-SLAPP statute. Neville submitted no evidence to establish the probability that he would prevail on the merits. The trial court therefore granted the special motion to strike. Neville timely appealed.⁵

DISCUSSION

A. The Anti-SLAPP Statute and Standard of Review

"A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056, 39 Cal.Rptr.3d 516, 128 P.3d 713.) Pursuant to section 425.16, subdivision (b)(1), a litigant may move 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...." Such acts include "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body ...." (§ 425.16, subd. (e)(2).) "Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.]" (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35, 64 Cal.Rptr.3d 348 (Rohde); see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 (Briggs).)

To apply the anti-SLAPP statute, courts engage in a two-step process. "`First, the court decides whether the [moving party] has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the [complaining party] has demonstrated a probability of prevailing on the claim.'" (Taus v. Loftus (2007) 40 Cal.4th 683, 703, 54 Cal.Rptr.3d 775, 151 P.3d 1185, omission in original, quoting Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) In analyzing whether the moving party has met its burden of showing that the suit arises from protected activity, the court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).)

An order granting a special motion to strike under section 425.16 is appealable. (§§ 425.16, subd. (i); 904.1, subd. (a)(13).) We review the trial court's order de novo. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79, 55 Cal.Rptr.3d 600.) We will not weigh the evidence; rather, we accept as true evidence favorable to the plaintiff, and evaluate evidence favorable to the defendant to determine whether it defeats the plaintiffs claim as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, 46 Cal.Rptr.3d 638,139 P.3d 30; accord, Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279, 55 Cal.Rptr.3d 544.)

B. Chudacoff Met His Burden of Proving That Neville's Claim Arose from Protected Activity

Neville's sole contention on appeal is that Chudacoff failed to meet his threshold burden of proving that the Letter was written "in connection with an issue under consideration or review by a legislative, executive, or judicial body" as required by section 425.16, subdivision (e)(2).⁶ Neville argues that the Letter was written more than four months before Maxsecurity filed its lawsuit against Neville, and Chudacoff did not expressly declare that when the letter was sent, Maxsecurity contemplated litigation seriously and in good faith. Furthermore, Neville asserts, the Letter was addressed to Maxsecurity's customers, who were not to be (and ultimately were not) parties to any anticipated lawsuit against Neville by Maxsecurity.

Both parties and the trial court appear to have assumed that whether a statement is a protected activity under section 425.16, subdivision (e)(2) is determined by ascertaining whether the statement is protected by the litigation privilege of Civil Code section 47, subdivision (b) (section 47). That assumption is not correct because the two statutes are not coextensive. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323, 46 Cal.Rptr.3d 606, 139 P.3d 2 ["Notwithstanding [the] relationship between the litigation privilege and the anti-SLAPP statute ... the two statutes are not substantively the same"] (Flatley); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728,...