Tentative Ruling: Anti-SLAPP motion is denied; Demurrer is overruled.

Plaintiff Dwayne Allen filed this action against Defendant We R Wireless (WRW) arising out of his employment. Allen alleges that he was employed as a full-time store manager beginning 4/26/12; his supervisor Paul de Viere harassed him by making racist comments for which Allen made complaints; de Viere accidentally sent a racist email to Allen on 10/20/12 stating that he would fire him; and de Viere later fabricated a write-up and terminated Allen on 10/23/12 (¶¶ 6-14).

WRW and de Viere filed a cross-complaint against Allen. Cross-Complainants allege that the 10/22/12 email was created and composed by Allen himself, to falsely appear that it originated from de Viere; Allen forwarded the counterfeit email to other WRW employees and affiliated persons; and Allen posted the counterfeit email online (¶¶ 7-8). Cross-Complainants assert causes of action for defamation and intentional infliction of emotional distress.

ANTI-SLAPP MOTION
Allen moves to strike the Cross-Complaint pursuant to CCP §425.16. An anti-SLAPP motion involves a two step process: 1) the defendant must establish that the challenged causes of action arise from protected activity; and 2) if the defendant makes this showing, the burden shifts to the plaintiff to establish a probability of success on the merits. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.

Protected Activity –
To prevail on an anti-SLAPP motion, the moving party must first make a threshold showing that the challenged cause of action “arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180, 192. The phrase “arising from” means “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77.

Allen argues that the Cross-Complaint arises out of conduct taken in anticipation of litigation. Allen submits that he preserved the 10/22/12 email in anticipation of litigation, sent it to his attorney, and forwarded it to the WRW human resources officer to complain about De Viere’s conduct. This argument has no merit. The Cross-Complaint does not arise from preserving the 10/22/12 email or sending it to Allen’s attorney or the human resources office. Allen’s arguments all assume that the email was generated by de Viere and used by Allen for appropriate pre-litigation purposes, but that misconstrues the Cross-Complaint. The Cross-Complaint alleges that Allen fabricated the 10/22/12 email and sent it to others for entirely improper purposes. That alleged conduct does not involve protected activity.

Allen also argues that posting the 10/22/12 email was a statement made in a public forum about an issue of public interest. This once again misconstrues the allegations of the Cross-Complaint. Allen’s arguments assume that the 10/22/12 email was created by De Viere; but the Cross-Complaint alleges that it was a counterfeit that Allen prepared and used for improper purposes. In any event, the posting simply concerned Allen’s dispute with WRW and de Viere. A public interest involves more than mere curiosity or private information communicated to a small number of people; it concerns communications to a substantial number of people and some connection with the public interest rather than a private controversy. See Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-33. The 10/22/12 email does not meet this standard; it addresses a dispute between Allen and his employer, and does not qualify as a matter of public interest.

Allen has failed to establish that the Cross-Complaint arises from protected activity.

Probability of Success on the Merits –
Under the second prong of the anti-SLAPP standard, the burden shifts to Cross-Complainants to present admissible evidence that supports a prima facie case in their favor, much like the burden on a motion for summary judgment or directed verdict. CCP §425.16(b)(1); Taus v. Loftus (2007) 40 Cal.4th 683, 714; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.

Allen has objected to Cross-Complainants’ evidence. The objections to the de Viere and Singh declarations are overruled. Cross-Complainants’ declarations support the factual allegations in the Cross-Complaint, and they are sufficient to make out a prima facie case.

Ruling –
The anti-SLAPP motion is denied.

DEMURRER
Allen demurs to the Cross-Complaint on several grounds.

Litigation Privilege –
Allen argues that the Cross-Complaint is barred by the litigation privilege. The litigation privilege encompasses statements made prior to filing a lawsuit, in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit. See Hagberg v. Cal. Federal Bank (2004) 32 Cal.4th 350, 361. The Cross-Complaint does not allege communications of that kind (see ¶¶ 7-8). This ground is overruled.

Concerted Employee Activity –
Allen argues that the Cross-Complaint is barred by the National Labor Relations Act and Labor Code §923. These statutes concern concerted employee activity, which is not raised by the factual allegations of the Cross-Complaint. This ground is overruled.

Manager’s Privilege –
Allen argues that the Cross-Complaint is barred by the manager’s privilege. This privilege arises from the confidential relationship between a manager and the principal or employer and the necessity of the principal to act through its management. See Halvorsen v. Aramark Uniform (1998) 65 Cal.App.4th 1383, 1391-94. The Cross-Complaint does not allege conduct taken by Allen in a managerial context; it alleges that he fabricated the 10/22/12 email and distributed the email with malice (¶¶ 7-8). This ground is overruled.

Intentional Infliction of Emotional Distress –
Allen argues that de Viere’s intentional infliction of emotional distress claim is preempted by Workers Compensation exclusivity. This applies to actions which are a normal part of the employment relationship, caused by others who are acting within the course and scope of their employment. See Lab. Code §3601(a); Cole v. Fair Oaks Fire Protection (1987) 43 Cal.3d 148, 160. The Cross-Complaint alleges injurious conduct by Allen that was outside the course and scope of his employment, unrelated to normal employment activities.

Allen also argues that the Cross-Complaint fails to allege facts to support outrageous conduct. The Cross-Complaint alleges that Allen created a counterfeit email which contained racist statements attributed to de Viere and that Allen maliciously distributed the email with intent to injure de Viere. This is sufficient to support extreme or outrageous conduct at the pleading stage. This ground is overruled.

Indemnification –
Allen argues that WRW is required to indemnify him pursuant to Labor Code §2802. This is not a ground for demurrer to the Cross-Complaint. In any case, the Cross-Complaint alleges personal conduct by Allen that was outside the course and scope of his employment; if proven, this would defeat §2802 liability. See Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1101. This ground is overruled.

Ruling –
The demurrer is overruled. Allen shall answer the Cross-Complaint within 10 days.