Tutor-Saliba Corp. v. Herrera

• Decision Date: 10 January 2006
• Docket Number: No. A108712.,A108712.
• Citation: 39 Cal.Rptr.3d 21,136 Cal.App.4th 604
• Court: California Court of Appeals Court of Appeals
• Parties: TUTOR-SALIBA CORPORATION, Plaintiff and Appellant, v. Dennis J. HERRERA, Defendant and Respondent.

39 Cal.Rptr.3d 21

136 Cal.App.4th 604

TUTOR-SALIBA CORPORATION, Plaintiff and Appellant, v. Dennis J. HERRERA, Defendant and Respondent.

No. A108712.

Court of Appeal, First District, Division 2.

January 10, 2006.

Nomi Castle, Castle & Associates, Los Angeles, CA, David Romyn, for Appellant.

Dennis J. Herrera, City Attorney, Joanne Hoeper, Chief Trial Deputy, James M. Emery, Deputy City Attorney, San Francisco, CA, for Respondent.

RUVOLO, J.^*

I. INTRODUCTION

Plaintiff and appellant Tutor-Saliba Corporation (Tutor) appeals an order striking its complaint for defamation against defendant and respondent Dennis J. Herrera (Herrera), following Herrera's successful special motion to strike brought under California's anti-SLAPP statute. (Code Civ. Proc., § 425.16.)¹ The motion was granted after the trial court concluded that the alleged defamatory statements made by Herrera in a speech before the San Francisco Chinese-American Democratic Club (CADC) were absolutely privileged under California Civil Code section 47, subd. (a) ("official duty privilege"), as well as under Government Code sections 821.6 and 820.2 ("prosecutorial immunity" and "discretionary immunity," respectively). We affirm, concluding that the alleged statements were subject to the official duty privilege.² We also conclude that the trial court did not err in denying Tutor's request for limited discovery, under section 425.16, subdivision (g).

II. PROCEDURAL BACKGROUND

On February 19, 2004,³ Tutor filed a complaint alleging a single cause of action for defamation against Herrera in San Mateo County Superior Court. Paragraph 8 sets forth quoted statements attributed to Herrera which are alleged to be defamatory of Tutor. In response, Herrera filed a motion to change venue of the case to San Francisco.

While the motion to change venue was pending, Herrera filed a motion to strike Tutor's complaint on June 4 pursuant to section 425.16. The motion neither challenged the sufficiency of Tutor's complaint to state a cause of action for defamation, nor did it deny that the statements quoted in the complaint were actually made by Herrera. Instead, the motion contended that the complaint was filed in retaliation for Herrera's exercise of his constitutionally protected right of free speech in connection with a matter of public interest. Therefore, the complaint fell within the provisions of California's anti-SLAPP statute (§ 425.16, subd. (b)). In addition, Herrera asserted that the statements attributed to him were made concerning a federal lawsuit against Tutor filed by Herrera on behalf of the City and County of San Francisco and the State of California and, thus, they were privileged. Because the statements were privileged, Herrera contended that Tutor could not show a likelihood that it would prevail on the complaint's merits, and therefore, the motion to strike the complaint must be granted.

On June 9, Herrera's motion to change venue to San Francisco was granted.⁴

On October 8, eight months after filing the complaint, Tutor filed an ex parte motion seeking limited discovery in connection with the pending motion to strike (§ 425.16, subd. (g)). That ex parte application was denied, without prejudice to renewing the motion at the hearing on Herrera's motion to strike. Tutor was also ordered to file its opposition to Herrera's motion by October 13, and any reply was to be filed no later than October 18. Accordingly, the hearing was continued to October 21. Tutor then filed an opposition to Herrera's motion⁵ on October 13, and Herrera a reply brief on October 18.

Following a hearing on October 21, the trial court filed its order granting Herrera's motion to strike on November 5. This appeal followed.

III. LEGAL DISCUSSION

A. The Anti-SLAPP Statute and the Standard of Review on Appeal

We recently had occasion to discuss at considerable length California's anti-SLAPP statute, including the applicable standard of review. As we said in Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644-645, 24 Cal.Rptr.3d 619: "[¶] Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant part: `(a) The Legislature finds and declares that there 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. To this end, this section shall be construed broadly. [¶] (b)(1) 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. [¶] (2) 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. [¶] (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination. [¶] . . . [¶] (e) As used in this section, "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" 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; (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.'

"Under the statute, the court makes a two-step determination: `First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) "A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)" [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1). . . .)' (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal.Rptr.2d 530, 52 P.3d 703]; see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685] (Equilon Enterprises); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695].) `Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute.' (Navellier v. Sletten, supra, 29 Cal.4th at p. 89 [124 Cal.Rptr.2d 530, 52 P.3d 703].)

"A ruling on a special motion to strike under section 425.16 is reviewed de novo. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 .) This includes whether the anti-SLAPP statute applies to the challenged claim. (Kashian v. Harriman (2002) 98 Cal.App.4th 892 .) Furthermore, we apply our independent judgment to determine whether [plaintiff's] causes of action arose from acts by [defendant] in furtherance of [defendant's] right of petition or free speech in connection with a public issue. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721 , disapproved on another ground in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10 [81 Cal.Rptr.2d 471, 969 P.2d 564].) Assuming these two conditions are satisfied, we must then independently determine, from our review of the record as a whole, whether [plaintiff] has established a reasonable probability that he would prevail on his claims. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653 , overruled on other grounds in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5 [124 Cal.Rptr.2d 507, 52 P.3d 685].)"

B. Herrera's Motion to Strike Was Properly Granted

Neither in the trial court nor on appeal does Tutor contend that the alleged defamatory statements described in its complaint were not "protected activity" within the meaning of section 425.16, subdivision (e). Thus, it was Tutor's burden in opposing Herrera's motion to demonstrate a probability that it would prevail on its defamation claim. (§ 425.16, subd. (b)(1).) The sole impediment to a showing that the claim had legal merit was Herrera's assertion that the statements were privileged under the "official duty privilege" (Civ.Code, § 47, subd. (a)), as well as under the "prosecutorial" and "discretionary" immunities. (Gov.Code, §§ 821.6 & 820.2.)

Undisputed facts presented in connection with the motion reveal that Herrera was first elected San Francisco City Attorney in December 2001, and took office in January 2002. On or about July 2, 2003, Herrera, together with outside counsel, filed a second amended complaint for damages and penalties in Case No. C-02-5286 CW, in United States District Court for the Northern...