Lillie v. Cal. Inst. of Tech.

DAVID LILLIE, Plaintiff and Appellant, v. CALIFORNIA INSTITUTE OF TECHNOLOGY, Defendant and Respondent.

B302941

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

April 23, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. 19BBCV00346)

APPEAL from an order and a judgment of the Superior Court of Los Angeles County, John J. Kralik, Judge. Reversed.

Law Office of Jan T. Aune and Jan T. Aune for Plaintiff and Appellant.

DLA Piper, Holly R. Lake and Ryan Matthew Estes for Defendant and Respondent.

____________________ Defendant and respondent California Institute of Technology (Caltech) manages the Jet Propulsion Laboratory (JPL) pursuant to a contract with the National Aeronautics and Space Administration (NASA). In 2014, plaintiff and appellant David Lillie (Lillie), who at that time was an employee of ManTech International Corporation (ManTech), worked at JPL in accordance with a contractual arrangement between Caltech and ManTech. Lillie claims that Caltech personnel provided him with access to a third-party government contractor's proprietary data to facilitate his completion of assigned tasks. According to Lillie, he later discovered that he lacked authorization to access this data and that Caltech personnel had attempted to conceal Lillie's use of the data.

Lillie claims to have reported these events to Caltech's Ethics Department, and that he later relayed them to Congresswoman Judy Chu's office. ManTech subsequently terminated Lillie's employment. Next, at a meeting arranged by Congresswoman Chu's office, Lillie alleges he returned to Caltech the only copy of the third-party proprietary data that he had in his possession. Nonetheless, shortly after he returned the data, Caltech personnel apparently told ManTech employees (among other things) that Lillie retained this data in violation of his nondisclosure agreement. Lillie maintains that ManTech thereafter changed his rehire eligibility status from eligible to ineligible in part because of Caltech's statements.

Lillie sued Caltech for defamation, negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, intentional misrepresentation, and negligent misrepresentation. Caltech responded by filing a special motion to strike Lillie's operative first amended complaint under Code ofCivil Procedure section 425.16,¹ the Strategic Lawsuit Against Public Participation (anti-SLAPP) statute. The trial court granted the motion and struck the entirety of Lillie's operative pleading. Lillie appeals that decision.

On de novo review of the trial court's ruling, we conclude that Caltech has failed to satisfy its burden of showing that Lillie's claims arose from conduct protected by the anti-SLAPP statute. Specifically, Caltech does not show that it made the statements that are the subject of Lillie's claims in connection with an issue under review or consideration by a legislative body or any other official proceeding authorized by law (§ 425.16, subd. (e)(2)), or that Caltech engaged in "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" (id., subd. (e)(4)). Accordingly, we reverse without addressing whether Lillie established a probability of prevailing on his claims.

FACTUAL AND PROCEDURAL BACKGROUND²

We summarize only those facts relevant to this appeal.

Caltech is a research university in Southern California. JPL is a federally-funded research and development center, which is managed by Caltech pursuant to a contract with NASA. In 2014, Caltech and ManTech had a contractual arrangement whereby ManTech provided Caltech with engineering analysis and software reliability support services.

In July 2014, Lillie was a ManTech employee who ManTech assigned to JPL pursuant to ManTech's contract with Caltech. Lillie avers that in September 2014, Caltech personnel provided him with access to a third-party government contractor's³ "MathCAD files" in order to assist him in completing his assigned tasks. Lillie alleges that he created a CD-ROM copy of the MathCAD files so he could work at home, and that he later prepared a technical report that he forwarded to a Caltech employee. According to Lillie, this Caltech employee later asked Lillie to delete the references to the MathCAD files from the technical report, but Lillie refused to do so.

On October 7, 2014, Lillie reported to Caltech's Ethics Department that the aforesaid Caltech employee was covering up that Lillie had used the MathCAD files. Lillie contends that it was inappropriate for the Caltech employee to tell him not to report that he had used the MathCAD files where the third-party government contractor to whom the files belonged (Lockheed Martin) did not permit him to access them.

Later in October 2014, ManTech placed Lillie on furlough. Although Lillie returned to work full-time in November 2014, ManTech placed him on furlough again in December 2014.

Also in December 2014, Lillie informed Congresswoman Judy Chu's office of his complaint to Caltech's Ethics Department. Caltech avers that "[o]n January 7, 2015, Congresswoman Judy Chu's office advised Caltech that Lillie contacted the office and expressed concern about proprietary information which he accessed while he was working for ManTech on a project for Caltech."

ManTech terminated Lillie's employment on February 6, 2015.

On April 13, 2015, at a meeting arranged by Congresswoman Chu's office, Lillie returned a CD-ROM containing the MathCAD files to Caltech's Ethics Department.

Lillie avers that Caltech thereafter made five defamatory statements to ManTech concerning Lillie, each of which is summarized below.

First, on April 13, 2015, after Lillie returned the CD-ROM containing the MathCAD files, a Caltech subcontracts manager stated the following in an e-mail to a ManTech employee: Caltech had "been made aware by David Lillie that he is inpossession of third party and ITAR controlled data⁴ which he took from JPL."

Second, in the next sentence of this April 13, 2015 e-mail, the Caltech subcontracts manager further stated: "This action is in violation of the terms of JPL subcontract number 1384568 and the non-disclosure agreement (NDA) signed by Mr. Lillie."

Third, later that day, the ManTech employee who received the April 13, 2015 e-mail forwarded this correspondence to another Caltech employee and stated, "I'm assuming that you are aware of this situation," and, on April 14, 2015, this second Caltech employee responded in pertinent part: "Lillie is playing really dirty."

Fourth, on April 15, 2015, the Caltech subcontracts manager sent another e-mail to the ManTech employee who received the April 13, 2015 e-mail, wherein the subcontracts manager stated: (1) Caltech's Ethics and Human Resources Departments had requested that the subcontracts manager send that April 13, 2015 e-mail to ManTech, and (2) the subcontracts manager did "not have much insight on the issue other than what is in the email [she had sent on April 13, 2015] and the fact that David Lillie is disgruntled."

Finally, on April 16, 2015, the ManTech employee who received the foregoing e-mails from Caltech personnel sent an e-mail to a ManTech contracts manager concerning a telephone conference these two ManTech employees had with the Caltech subcontracts manager. The e-mail stated: (1) Lillie "has copies" of "3^rd party proprietary" and "ITAR sensitive data" on "his own personal computer"; (2) Lillie "appears to be a disgruntled employee"; and (3) Lillie "thought the CD would substantiate his claims about inappropriate behavior by ManTech" but "[h]e has been discredited by his own actions." The e-mail did not explicitly clarify whether, and if so, to what extent, Caltech's subcontracts manager supplied this information to the two ManTech employees during the telephone conference.

Lillie claims that in 2018, he discovered Caltech's allegedly defamatory statements in connection with a federal False Claims Act lawsuit he filed against ManTech. Lillie further maintains that in September 2018, he learned in the federal action that on or about April 23, 2015, ManTech had changed his rehire eligibility from eligible to ineligible in part because of Caltech's April 2015 statements.

On April 24, 2019, Lillie commenced the instant action against Caltech. On August 5, 2019, Lillie filed the operative first amended complaint against Caltech, alleging the following six causes of action: (1) defamation, (2) negligence, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, (5) negligent misrepresentation, and (6) intentional misrepresentation.

On August 16, 2019, Caltech moved to strike the entirety of the first amended complaint under the anti-SLAPP statute, asserting that Lillie's claims arise from activity protected undersection 425.16, subdivisions (e)(2) and (e)(3), and that he could not establish a probability of prevailing on his claims. Lillie opposed the motion on October 28, 2019, and Caltech filed its reply on November 1, 2019.

On November 8, 2019, the trial court heard Caltech's motion and issued a written ruling granting it. The court agreed with Caltech that Lillie's claims fall within the scope of section 425.16, subdivision (e)(2), given that "the alleged statements made between Caltech and ManTech regarding [Lillie] were made in connection with an internal investigation that took place as a result of Congresswoman Chu's request." Conversely, the court found that section 425.16, subdivision (e)(3) was inapplicable...