Case Number: BC698760 Hearing Date: February 28, 2020 Dept: 40

MOVING PARTY: Charles Luke

OPPOSITION: The Service Warehouse, Inc., Gary McFarland, and Tom Nolimal

On March 20, 2018, Charles Luke sued The Service Warehouse, Inc., (“TSW”) his former employer for racial harassment and retaliation.

During his employment Defendant secretly recorded TSW’s Manager Gary McFarland and his co-worker Tom Nolimal making purportedly harassing and politically charged comments.

On July 11, 2019, The Service Warehouse, Inc., Gary McFarland, and Tom Nolimal, filed a separate Complaint, No. 19STCV24265, against Luke (which was consolidated with Luke’s lawsuit on January 30, 2020), alleging causes of action for:

1) Invasion of Privacy- Penal Code Sections 630-638;

2) Invasion of Privacy- Intrusion.

Because the consolidation makes BC687760 the single case number, The Service Warehouse, Inc., Gary McFarland, and Tom Nolimal, should be referred to as Defendants, but because Luke filed this special motion to strike (“anti-SLAPP”) before the cases were consolidated, ONLY FOR THIS MOTION, The Service Warehouse, Inc., Gary McFarland, and Tom Nolimal, shall be referred to as “Plaintiffs.”

Objections: “Plaintiffs’” objections Nos. 1-14 to the declarations of Charles E. Luke and Jeffrey A. are OVERRULED.

Luke’s objections to the declaration of McFarland, Nolimal, Ronald P. Richards (owner of TSW), and Robert Bedinger (Plaintiffs’ counsel) are OVERRULED.

Standard: The Anti-SLAPP statute provides that a legal cause of action against a person arising from any act of that person in furtherance of the person’s right to petition or free speech 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. Code Civ. Proc., § 425.16, subds. (b)(1).

“Consistent with the statutory scheme, ruling on an anti-SLAPP motion involves a two-step procedure. First, the moving defendant must identify ‘all allegations of protected activity’ and show that the challenged claim arises from that activity. Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. ‘Without resolving evidentiary conflicts, the court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 934.

Analysis: Defend secretly recorded, audio only, his manager and co-worker on approximately five occasions. One of the recordings was deleted and only four recordings remain. Plaintiffs became aware of the recordings at Luke’s September 2018 deposition, then on July 11, 2019, filed the separate complaint against Luke. The operative Complaint was filed on September 4, 2019.

First Prong

Protected Activity Analysis: A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in Code of Civil Procedure section 425.16, subdivision (e). Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51. Defendant argues that his statements are protected under Section 425.16, subd. (e)(4), which protects “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.”

Luke argues that he recorded what he considered to be FEHA violations in furtherance of his constitutional right of petition and free speech. Luke cites to Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 161-162, in which reporters secretly recorded a doctor prescribing Vicodin without examining the patient and aired the recordings on a news segment at a local television station. The court held that the recording was conduct related to newsgathering on a matter of public interest and that the recordings were in furtherance of news reporting which is free speech. (Id. at pg. 166.)

“Plaintiffs” argue that the recordings are not related to a protected activity because Luke’s Complaint does not reference them, Luke failed to disclose the existence of the recordings until six months after filing the Complaint, and at his deposition Luke indicated that he had no particular reason for creating the recordings.

“Plaintiffs” also argue that Luke’s recordings are illegal as a matter of law. “Plaintiffs” cite to Flatley v. Mauro (2006) 39 Cal.4th 299, in which the California Supreme Court held that “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the 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.” (Id. at pg. 320.) An activity may be deemed unlawful when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful. (Id. at pg. 317.)

The Court finds that Luke satisfied the first prong of the anti-SLAPP test. Luke recorded the conversations to gather evidence of his alleged racial harassment. The evidence would be used, and has been used, in litigation. The recordings address an issue of significant public interest, i.e. harassment in the workplace. As discussed below, there is evidence that the recording was unlawful but that is subject to dispute.

Second Prong

Prevail Standard: Generally, in order to establish a “probability” of prevailing on the merits, a plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. This standard is the same as that governing a motion for summary judgment in that it is the plaintiff’s burden to make a prima facie showing of facts that would support judgment in plaintiff’s favor. Taus v. Loftus (2007) 40 Cal.4th 683, 714. The court may not weigh credibility or comparative strength of evidence; the court considers defendant’s evidence only to determine if it defeats the plaintiff’s showing as a matter of law. Soukop, supra, 39 Cal.4th at 291. “In making this assessment it is the court’s responsibility … to accept as true the evidence favoring the plaintiff …. The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as SLAPP.” (Ibid.)

Penal Code § 632: Plaintiffs argue that they are likely to prevail because Defendant violated Penal Code § 632.

Section 632(a) in relevant part states that:

“A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”

A confidential communication is defined as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto but excludes. . . any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Pen. Code § 632 (c).)

The only disputed element is whether the communications were confidential. Plaintiff’s have submitted the declarations of McFarland and Nolimal, and several other co-workers. The declarations all state that TSW’s sales department, in which all the relevant parties worked, is secluded from the rest of the office and that the doors into it were closed. The declarants also provide a floor plan which shows that the sales department is separate from the warehouse and from the other departments.

Defendant argues that two of the employees, Maria Perez (“Perez”) and Natalie Appel (“Appel”), contradict their deposition testimony. Perez’s and Appel’s declarations state that they did not overhear any conversation taking place in TSW’s sales department. In their depositions Perez and Appel respectively, state that “I didn’t hear what was said but I know they were talking about politics” and “If I had to take some paperwork into the sales department, I might hear a discussion, but not anything that I heard– just a few words in and out. I never heard anything other than that.” (Reply, pgs. 5-6, citing Exs. 3 and 6.)

The Court finds that Plaintiffs have met their burden and established the minimal merit of their privacy claims, that there is merit to Plaintiffs’ contention that there was a reasonable expectation of privacy in their conversations. McFarland and Nominal allegedly made the statements at issue in the separated sales department whose doors were closed.

Luke’s evidence factually disputes whether other parties overheard the conversations. However, at this stage of the proceedings the Court may only consider Luke’s evidence if it defeats Plaintiffs’ showing as a matter of law, which it does not.

Intrusion: The common law tort of invasion of privacy by intrusion “has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” Sanders v. American Broadcasting Companies, Inc. (1999) 20 Cal.4th 907, 914.

For the reasons discussed above, the Court finds that there is merit to this claim.

Conclusion: Luke’s Special Motion to Strike is DENIED and as Moving Party,Luke is to provide notice.