Doe v. McClain

1

JOHN DOE, Plaintiff and Appellant, v. KATIE JO McCLAIN, Defendant and Respondent.

2d Civ. No. B320210

California Court of Appeals, Second District, Sixth Division

July 24, 2023

NOT TO BE PUBLISHED

Superior Court Los Angeles County No. 21STCV46709 Steven J Kleifield, Judge

Decker Law, James D. Decker and Griffin R. Schindler for Plaintiff and Appellant.

McPherson, Edwin F. McPherson and Pierre B. Pine for Defendant and Respondent.

GILBERT, P. J.

Katie Jo McClain, an actor, e-mailed the Screen Actors Guild, her union, to complain about Joe Doe, a producer. She claims this and other contacts with her union constitute an official proceeding within the anti-SLAPP statute. They do not. We need not decide here whether the union could have initiated an official proceeding. The undisputed record shows no such proceeding occurred.

John Doe appeals an order granting defendant Katie Jo McClain's special motion to strike (Code Civ. Proc § 425.16 [anti-SLAPP])^[1] his lawsuit for defamation, intentional interference with business relationships, negligent interference with prospective business relationships, and intentional infliction of emotional distress.

The trial court ordered Doe's action dismissed with prejudice. We conclude, among other things, that McClain did not meet her burden to satisfy the first prong of her anti-SLAPP motion. We reverse.

FACTS

Doe and McClain are members of the Screen Actors Guild (SAG) union. Doe stars in, directs, and produces a "digital daytime drama webseries." In 2015, Doe hired McClain to work on the series for three days "at a rate of $3,000.00 per day." She received an advance payment of $9,000.

Doe terminated McClain's services after one day of service. He requested McClain to return $6,000 of the $9,000 that she had received. McClain declined. Doe demanded that McClain return the $6,000 or face litigation.

McClain sent an e-mail to David Gregoire of SAG in 2015. She said, among other things, "Hi David, [¶] . . . You may remember me as we spoke a few times during the end of 'All My Children' in 2011 ...." McClain said she had been "slandered and defamed" by a person working for Doe "to threaten [her] into giving back some of the funds" advanced to her from Doe's "LLC." "I worked one of those three days and have proof that I made myself available to work the other two days. [Doe] kept changing my two work days in an effort, I believe, to avoid having to pay me the full amount owed.... [¶] I have a call out to a lawyer . . ., Gary Watson. [¶] No other actor should ever have to go through this. [¶] Thank you for any input and guidance you can give me." The e-mail was marked confidential and "solely for use by" Gregoire.

Doe believed McClain had breached her contract. He sued her in small claims court. A couple months later, he dismissed the small claims action.

Doe had a brief phone call with SAG. He later received a letter from SAG that "revoked [his] SAG Signatory Status as a producer." This prevented him from producing episodes of his series and acting in his series. SAG did not conduct a hearing or provide Doe an opportunity to respond to accusations against him.

Doe filed an action against McClain for defamation and other causes of action. He alleged SAG revoked his "signatory status" solely based on false and defamatory statements McClain made that Doe, among other things, was "a sexual predator, sexual harasser, purveyor of pornographic material, [and] a rapist."

McClain filed a special motion to strike based on the anti-SLAPP statute. The trial court granted the motion.^[2]

DISCUSSION

The Anti-SLAPP Motion

"The anti-SLAPP statute is designed to prevent meritless lawsuits from chilling individuals' exercise of their rights of petition or free speech." (Dorit v. Noe (2020) 49 Cal.App.5th 458, 466.)" '[T]he statute authorizes a special motion to strike a claim "arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." '" (Ibid.)

" 'Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." '" (Dorit v. Noe, supra, 49 Cal.App.5th at p. 466.) "We review the trial court's ruling on an anti-SLAPP motion de novo." (Id. at p. 467.)

"Because the issues to be determined in an anti-SLAPP motion are framed by the pleadings, we will not 'insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified ...." (Medical Marijuana, Inc. v. ProtectCBD.com. (2020) 46 Cal.App.5th 869, 883, italics omitted.)

In his complaint Doe alleged that McClain made false statements, including that Doe was a "sexual predator" and "rapist."

Statements Made at an Official Proceeding

In her anti-SLAPP motion, McClain claimed Doe's lawsuit violated her protected activities under section 425.16, subdivision (e)(2), which 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, or any other official proceeding authorized by law." (Italics added.) She contended her statements to SAG were made in an "official proceeding."

SAG "a California corporation doing business in the County of Los Angeles, is a labor union." (Screen Actors Guild, Inc. v. Cory (1979) 91 Cal.App.3d 111, 113.) It is not a governmental entity." 'When nongovernmental entities are involved, courts have limited "official proceeding" anti-SLAPP protection to (1) quasi-judicial proceedings that are part of a "comprehensive" statutory licensing scheme and "subject to judicial review by administrative mandate" [citation], and (2) proceedings "established by statute to address a particular type of dispute." '" (Dorit v. Noe, supra, 49 Cal.App.5th at p. 469, italics added.)

An example of the first provision is a medical board peer review quasi-judicial evidentiary hearing to examine a doctor's qualifications that is reviewed by mandamus. An example of the second is "mandatory attorney fee arbitration." (Dorit v. Noe, supra, 49 Cal.App.5th at p. 469.) Some arbitration hearings, however, do not fall within the definition of an "official proceeding." As stated in Dorit, "While private contractual arbitration is governed by statute, it is not an official proceeding because it is not required by statute." (Ibid.)

The term "official proceeding" has been "interpreted to encompass those proceedings which resemble judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings." (Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323, italics added.) In Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, our Supreme Court held the term "official proceeding" has been "interpreted broadly to protect communications to or from governmental officials which may precede the initiation of formal proceedings," but not "communications between private parties who are not acting in an official capacity." (Ibid.) The official proceeding privilege does not apply to communications to a private entity that are "not directed at preparing for or eliciting governmental action." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 365.)

As a private entity, SAG is not analogous to "governmental officials performing an official duty." (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1509.) It did not conduct a "quasi-judicial proceeding." (Ibid.) SAG often uses private contractual arbitration to resolve disputes. (See, e.g., Screen Actors Guild v. A. Shane Co. (1990) 225 Cal.App.3d 260.) But that is not an "official proceeding" under the anti-SLAPP act. (Dorit v. Noe, supra, 49 Cal.App.5th at p. 469.)

McClain did not make her statements in court, to a legislative body, in a quasi-judicial proceeding, at an evidentiary hearing, at a labor arbitration hearing, at a public forum, or a proceeding to initiate "governmental action." Her declaration does not describe any "official proceeding" at the union. Instead, McClain declared that she sent an e-mail to a friend at SAG asking for "input and guidance" regarding her private dispute with Doe. This e-mail did not request the initiation of any proceedings, a hearing, or an arbitration. (See A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1129.) It was a confidential message requesting "input" from a person not "acting in an official capacity" at a private entity (Slaughter v. Friedman, supra, 32 Cal.3d at p. 156, italics omitted), who was not initiating "governmental action." (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 365.)

McClain's e-mail to SAG, a private entity, did not initiate an "official" proceeding. In Kettler v. Gould (2018) 22 Cal.App.5th 593, the appellate court said the Certified Financial Planner Board of Standards, which investigates complaints of misconduct against financial planners, has "a laudable objective that may be helpful to the public." But, as a private entity, its "laudable objective[s]" were "not enough to transform its private certification and enforcement processes into an 'official proceeding authorized by law.'" (Ibid.) A private entity's procedures enacted to comply with laws to prevent sexual harassment on the job "[do] not automatically transform a private employer into an entity conducting 'official' proce...