RIGHEIMER VS COSTA MESA POLICE ASSOCIATION
Before the Court are Special Motions to Strike under C.C.P. § 425.16, submitted by: (1) Defendant Costa Mesa Police Association (“CMPA”); and (2) Lackie, Dammeier, McGill & Ethir, APC (“LDME”)
The Motions are being considered here on remand, based on the appellate opinion issued on 5/9/16, which reversed “as to the causes of action primarily based on Lanzillo’s allegedly false 911 call and his subsequent statements published in news reports” and remanded for further proceedings. The Court and received 2 rounds of supplemental briefing from CMPA, LDME, and Plaintiffs on the motions, and has considered the parties’ supplemental submissions in reaching its decision.
As a preliminary matter, the parties disagree as to whether Prong 1 may be revisited for the claims based on Mr. Lanzillo’s 911 call, in light of his recent guilty plea. This Court finds that Prong 1 may be considered anew for such claims, consistent with the Opinion, and the holding in Baral v. Schnitt (2016) 1 Cal.5th 376.
In light of Lanzillo’s plea, the illegality of his 911 call is no longer subject to dispute. (Cunny Decl. Ex. F.) Where the evidence conclusively establishes that assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320; Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 703; Gerbosi v. Gaims, Weil, West & Epstein, LLP(2011) 193 Cal.App.4th 435, 446.) Prong 1 is thus not met for any claims premised upon Lanzillo’s 911 call.
However, the SAC also asserts claims based on statements and publications. As noted in the Opinion, defamation claims are protected activity. Prong 1 is met for claims based on such statements or publications.
Plaintiffs bear the burden on Prong 2 to demonstrate that claims involving protected activity are legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if evidence submitted by plaintiff is credited. They can carry that burden by proffering sufficient evidence to support an inference of wrongdoing. (Opinion pp. 9, 13.)
Defendants argue that even if Lanzillo’s conduct was unlawful, their own conduct was not, so Plaintiffs cannot show a probability of prevailing on claims against them. However, Plaintiffs have offered evidence to show that LDME listed Lanzillo as an employee on its website, issued a credit card for him, and issued paychecks to him and that Mr. Dammeier communicated with him during the 911 call. (Cunny Decl. Ex. A, at 5, 12-13, 17, 50-54, 62, 121-122, 165-166.) Such evidence, if credited, is sufficient to support claims against LDME, based on Lanzillo’s actions. (See Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700 [only a cause of action that lacks “even minimal merit” can be stricken on a §425.16 motion].)
However, CMPA’s liability is based on the assertion that LDME and Lanzillo were its agents. SAC, ¶¶ 5, 54-56, 61-62, 69-72 and 110. Unlike an employer, a principal is only liable for the wrongdoing of its agent where it had the ability to control the agent’s conduct. Boling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853; Korean Air Lines Co., Ltd. v. County of Los Angeles (2008) 162 Cal.App.4th 552, 562 (“In the absence of the essential characteristic of the right of control, there is no true agency.”). Plaintiffs do not present any evidence showing CMPA had the authority to control Lanzillo’s conduct. Cunny Dec., Exhibit A at 49:20-25, 50:1-8, 50:9-21, 54:21-23, 56:19-57:23, 63:5-20, 76:23-77:4. Thus, CMPA cannot be liable for Lanzillo’s conduct under a theory of respondeat superior or vicarious liability.
Plaintiffs do not, alternatively, present evidence showing that CMPA ratified the wrongful conduct. Rather, the evidence submitted by Plaintiffs establishes that CMPA did not know of the wrongful conduct in advance and, upon learning of it, terminated LDME’s services except as to the ongoing officer investigations which LDME was in the process of handling. Cunny Dec., Exhibit A at 50:9-21, 56:19-57:2, 57:3-23, 62:7-25, 63:5-20, and 76:23-77:4. (UFCW & Employers Benefit Trust v. Sutter Health (2015) 241 Cal.App.4th 909 (internal citations and quotation marks omitted).)
Plaintiffs have not met their burden of establishing “minimal merit” to their claims against CMPA and CPMA’s motion to strike is granted. Defendants also argue that the litigation privilege under Civil Code §47(b) precludes liability on all of the claims here. However, the litigation privilege does not operate as a limitation on the scope of the anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 [by its very terms, § 425.16 does not apply to illegal activity that falls outside protected speech and petition rights].) Nor does the litigation privilege apply in any event to claims made to the press. (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1299 [republications to nonparticipants in the action are not privileged: litigation privilege does not apply to publications to the general public through the press]; Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146 [public mudslinging not entitled to protection afforded by litigation privilege].)
As for the causes of action at issue, under Baral v. Schnitt (2016) 1 Cal.5th 376, 395, for Prong 2, plaintiffs are required to establish a probability of prevailing on any claim for relief that is based on allegations of protected activity.
For the First, Second, Third and Fourth Causes of Action, Plaintiffs have presented sufficient evidence to support claims of agency or respondeat superior, as to LDME, for purposes of this motion. (Cunny Decl. Ex. A, at 50-54, 121-122, 165-166.) Plaintiffs have also demonstrated that, for COA 4, intent is not required: it is enough that defendant “devoted little or no thought” to the probable consequences of his conduct. (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1031-32.) Plaintiffs have not presented sufficient evidence to support claims of agency or respondeat superior as to CMPA.
The Eighth, Tenth, Eleventh, Twelfth and Thirteenth Causes of Action are based, at least in part, on allegedly defamatory statements or publications. (See SAC at ¶ 110-11, 125-126, 135, 143, and 155.) However, in light of the Lanzillo plea, Lanzillo’s statements and publications were admittedly known to be false when made. (See Cunny Decl. Ex. F, at ¶ 30.) Malice can thus be inferred, for purposes of this motion. That is sufficient to state a defamation claim as against Lanzillo and LDME, as his employer but not against CMPA. (CACI 1700.) To the extent that the other causes of action at issue are based on Lanzillo’s statements to the press, they are sufficient to withstand the instant motions by Lanzillo and LDME for the same reasons.
LDME and Lanzillo’s Motion to Strike is therefore DENIED and CMPA’s Motion to Strike is GRANTED.
LDME’sEvidentiary Objections are SUSTAINED as to Obj. No. 2: otherwise OVERRULED. CMPA’s Evidentiary Objections are SUSTAINED as to Obj. No. 3: otherwise OVERRULED.
Plaintiffs’ Request for Judicial Notice, filed 7/25/17, is GRANTED and the Court takes judicial notice of the certified copy of the criminal plea/Tahl form pertaining to Christopher J. Lanzillo and the criminal proceeding of Case No. 14CF3962, attached as Exhibit A to the Request for Judicial Notice. The Court can and does also take judicial notice of the OCSC’s electronic records in case no. 14CF3962. The plea in question bearing the Clerk’s signature appears in those records.