Filed 8/31/20 Drevaleva v. Alameda Health System CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

TATYANA E. DREVALEVA,

Plaintiff and Appellant,

v.

ALAMEDA HEALTH SYSTEM, et al.,

Defendants and Respondents.

A158862

(Alameda County

Super. Ct. No. RG19010635)

Tatyana Drevaleva contends the trial court erred by granting a special motion to strike under Code of Civil Procedure section 425.16, known as an anti-SLAPP motion, filed by defendants Alameda Health System (AHS) and its counsel, Narayan Travelstead, P.C. (law firm). She contends her claims for defamation, abuse of process, and intentional infliction of emotional distress (IIED) based on defendants’ statement in a federal appellate brief were not protected by the anti-SLAPP statute and had sufficient merit to proceed. We disagree and shall affirm.

I. BACKGROUND
II.
In 2016, Drevaleva sued AHS in federal district court, alleging various claims arising from the termination of her employment at AHS. The district court dismissed the complaint for lack of subject matter jurisdiction, and Drevaleva appealed. AHS’s appellate brief filed in March 2018 stated that Drevaleva had been fired for “poor performance.” Drevaleva asked AHS to provide an explanation and evidence for the statement, but AHS did not respond.

In March 2019, Drevaleva filed a new lawsuit against defendants based on these events. She alleged causes of action for libel, abuse of process, and IIED. The trial court granted defendants’ anti-SLAPP motion on July 23, 2019, and the clerk mailed a copy of the order to Drevaleva on July 25, 2019.

In early August 2019, Drevaleva filed an ex parte application for an order reversing the grant of the anti-SLAPP motion. On August 15, 2019, the trial court denied Drevaleva’s ex parte application, but gave her leave to file a late motion for reconsideration. She filed a motion about three weeks later asking the court to reverse its order granting the anti-SLAPP motion. At the same time, Drevaleva filed a motion under section 425.16, subdivision (g) for leave to conduct discovery she claimed was necessary to oppose the anti-SLAPP motion.

The trial court denied both motions. Drevaleva appealed.

III. DISCUSSION
IV.
A. Timeliness of appeal
B.
We previously denied defendants’ motion to dismiss the appeal as untimely, but defendants renew the argument in their respondent’s brief. “Timely filing of an appeal is an absolute prerequisite to the exercise of appellate jurisdiction; once the deadline expires, we have no power to entertain the appeal.” (Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 828–829.) “[A] notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules of Court , rule 8.104(a)(1).)

A signed court order granting an anti-SLAPP motion can constitute an appealable judgment. (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 994, 996.) The trial court’s signed anti-SLAPP order here is dated July 23, 2019, and the clerk mailed a copy of the order on July 25, 2019. Defendants argue the mailing of the order therefore started the 60-day period to appeal, making Drevaleva’s November 5, 2019, notice of appeal untimely. The order appears to have been written by the court and prepared by printing it with a date and electronic signature, so we assume it was entered on the date of the order. Nonetheless, the copy of order in the record has no formal stamp or endorsement showing a filing date. Consistent with “the well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases ‘when such can be accomplished without doing violence to applicable rules’ ” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674), we conclude this order was not formally “filed-endorsed” as required by rule 8.104(a)(1)(A) and did not start the period to appeal. Consequently, under rule 8.104(a)(1)(C), Drevaleva had 180 days to file a notice of appeal, and her November 5, 2019, notice of appeal was timely.

While the appeal is timely, defendants’ argument to the contrary is not frivolous. Additionally, the denial of their motion to dismiss, which was signed only by the Presiding Justice, did not prevent them from arguing timeliness in their merits brief. (Kowis v. Howard (1992) 3 Cal.4th 888, 900 [“a summary denial of a motion to dismiss the appeal should not preclude later full consideration of the issue, accompanied by a written opinion, following review of the entire record and the opportunity for oral argument”]; Dept. of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1023, fn. 6 [order denying motion to dismiss signed only by presiding justice did not prevent party from raising timeliness argument in briefing].) We therefore deny Drevaleva’s motions for sanctions and to strike defendants’ brief.

C. Drevaleva’s requests for judicial notice, to supplement the record, and to file a supplemental brief
D.
Drevaleva has filed two requests for judicial notice asking us to notice various documents relating to her employment at AHS and prior litigation between her and defendants. We deny these requests. Even if all of these documents were properly noticeable (and they are not), they are not necessary for our resolution of this appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [denying requests where notice of documents is not “necessary, helpful, or relevant”].)

Drevaleva also asks in her requests for judicial notice that we make various findings, such as a finding that she did not commit medical negligence or poor performance during her employment at AHS. We interpret these as requests for findings under section 909 and deny them. “ ‘ “Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and [rule 8.252] of the California Rules of Court, the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made.” ’ ” (In re B.D. (2019) 35 Cal.App.5th 803, 815.) This standard is not met here.

In addition to her requests for judicial notice, Drevaleva seeks to augment the record with (1) discovery responses defendants served in prior lawsuits Drevaleva filed, (2) an undated, unsigned letter from an AHS employee regarding Drevaleva’s performance at AHS, and (3) several proofs of service from the Department of Industrial Relations. “Augmentation does not function to supplement the record with materials not before the trial court.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Drevaleva has not shown that any of these documents were submitted to the trial court, so we deny this motion.

Finally, Drevaleva seeks leave to file a supplemental brief citing the record in other appeals she has filed. We deny this request because defendants’ actions in the other appeals to which Drevaleva refers are not relevant to this case.

1. Anti-SLAPP Motion
2.
The anti-SLAPP statute is designed to prevent meritless lawsuits from chilling individuals’ exercise of their rights of petition or free speech. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884.) “To that end, the statute authorizes a special motion to strike claims ‘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.’ (§ 425.16, subd. (b)(1).)” (Id. at p. 884.) “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.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) “If the plaintiff fails to meet that burden, the court will strike the claim. Subject to certain exceptions not relevant here, a defendant that prevails on a special motion to strike is entitled to attorney fees and costs. (§ 425.16, subd. (c).)” (Wilson, at p. 884.)

We review the trial court’s ruling on an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)

a. Step One: Claims arising from protected activity
b.
A suit is subject to an anti-SLAPP motion if it arises 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.” (§ 425.16, subd. (b)(1).) Such acts include “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” and “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.” (Id., subd. (e)(1) & (e)(2).)

Drevaleva’s libel, abuse of process, and IIED claims stem from defendants’ statement in their federal appellate brief that AHS terminated her for poor performance. On its face, this statement satisfies section 425.16, subdivision (e)(1) because it was a “written . . . statement or writing made before a . . . judicial proceeding.” It also satisfies section 425.16, subdivision (e)(2) as a statement “made in connection with an issue under consideration . . . by a . . . judicial body” because it was connected to the question of whether the trial court had jurisdiction over Drevaleva’s earlier suit. We therefore agree with the trial court that defendants carried their burden of showing Drevaleva’s claims arose from protected activity.

Drevaleva offers three arguments to avoid this conclusion, none of which is persuasive. She first contends defendants’ showing was insufficient because they did not prove that her lawsuit concerned an issue of public importance. This argument is frivolous. “[S]tatements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest.” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35; see also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.) Drevaleva points us to FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, but that case examined the meaning of “public issue” or “issue of public interest” as used in section 425.16, subdivision (e)(4) and has no bearing on the scope of subdivisions (e)(1) and (2). (Id. at pp. 144–145 [citing Briggs and contrasting the various subdivisions of section 425.16].)

Second, Drevaleva argues the anti-SLAPP statute does not apply because defendants’ statement was illegal as a matter of law. Drevaleva relies on Flatley, supra, 39 Cal.4th at p. 320, which held that when a defendant files an anti-SLAPP motion and “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.” She argues this rationale applies here because defendants’ conduct constituted libel.

Drevaleva has forfeited this issue because she did not raise it in the trial court. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) Drevaleva’s argument also fails on the merits. Cases after Flatley have clarified that Flatley’s “use of the phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute.” (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) The allegedly libelous nature of defendants’ statements does not deprive them of the anti-SLAPP statute’s protection.

In her reply brief, Drevaleva contends for the first time that defendants’ conduct was criminal because it violated Labor Code section 1050, which prohibits employers from using misrepresentations to prevent or attempt to prevent former employees from obtaining new employment. This argument is doubly forfeit, both from Drevaleva’s failure to argue the illegality issue below and because she did not raise this theory until her reply. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 [“points raised for the first time in a reply brief on appeal will not be considered, absent good cause for failure to present them earlier”].) In any event, the record does not support this argument. Drevaleva has not cited any evidence that defendants’ statement prevented her from securing new employment or was an attempt to do so. To the contrary, defendants’ inclusion of the statement in an appellate brief does not suggest they intended to prevent Drevaleva from securing new employment. Drevaleva also attached to her complaint a favorable letter of reference from AHS, further contradicting this new theory. Thus, we cannot conclude that defendants’ conduct violated Labor Code section 1050, much less that it violated that statute as a matter of law.

Finally, Drevaleva argues that even though she filed her lawsuit to object to defendants’ statement, her claims did not arise from the statement for anti-SLAPP purposes. Instead, she contends her claims arose from defendants’ refusals to provide her the evidence and an explanation for the statement when she asked for it. This argument has no merit, as the trial court correctly concluded. Libel “ ‘involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.’ ” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27.) Drevaleva based her libel claim directly on defendants’ statement about her termination, since, as she argues elsewhere in her briefing here, defendants’ “statement was a Libel Per Se and it was actionable.” While defendants’ failure to provide evidence to substantiate the statement may be relevant to its falsity, as she alleged in her complaint and argues here, Drevaleva’s libel claim still necessarily rests on the statement itself. The same is true of Drevaleva’s abuse of process and IIED claims. Even assuming defendants’ failure to provide an explanation for the statement may have furthered the alleged abuse of process and IIED, those claims nonetheless arose from the statement in the federal court, not any ensuing events.

c. Step Two: Probability of prevailing
d.
Because defendants have established that Drevaleva’s claims arise from protected activity, the burden shifts to Drevaleva to demonstrate a probability of prevailing on the claims, meaning the claims have “at least ‘minimal merit.’ ” (Park, supra, 2 Cal.5th at p. 1061.) This second step is “a ‘summary-judgment-like procedure.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.)

The trial court ruled Drevaleva did not have a probability of prevailing because the litigation privilege defeated all three of Drevaleva’s claims and because Drevaleva failed to plead sufficient facts to sustain each of the elements of her claims. We agree with the first conclusion, so we need not consider the second.

“The litigation privilege is codified in Civil Code section 47 (section 47): ‘[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . .” (§ 47, subd. (b).)’ (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “ ‘The privilege “immunizes defendants from virtually any tort liability (including claims for fraud), with the sole exception of causes of action for malicious prosecution.” ’ ” (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 786.) “ ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ [Citation.] Thus, ‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the litigation privilege.” (Rusheen, at p. 1057.) Because the privilege is absolute, “it applies, if at all, regardless whether the communication was made with malice or the intent to harm.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.)

Defendants’ statement underlying Drevaleva’s claims satisfies the elements of the litigation privilege. Defendants included the statement in their answering brief in an appeal, so they made it during a judicial proceeding in which they were litigants or counsel. And the statement described the factual background of Drevaleva’s federal suit at issue in the appeal and was part of defendants’ attempt to protect the district court’s judgment dismissing the suit, so it was logically connected and related to the action.

Drevaleva’s two arguments against the application of the litigation privilege are baseless. First, she contends the litigation privilege does not apply because it only protects communications or publications, not conduct. Drevaleva’s statement of the law is correct, but her application of it is not. “Because the litigation privilege protects only publications and communications, a ‘threshold issue in determining the applicability’ of the privilege is whether the defendant’s conduct was communicative or noncommunicative.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058.) Drevaleva argues that her claims rest on conduct, not communication, because they are based on defendants’ refusal to provide an explanation or evidence for the statement, not the statement itself. As set forth above, Drevaleva’s claims are in fact based on defendants’ statement. Moreover, “where the cause of action is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act.” (Id. at p. 1052 [postjudgment efforts to enforce default judgment procured through allegedly false declaration of service protected by litigation privilege].) Defendants’ refusal to respond to Drevaleva’s inquiries about the statement after they filed the appellate brief is necessarily related to the statement itself, so those actions are protected as well.

Second, Drevaleva argues the trial court failed to follow the proper anti-SLAPP procedure because it did not grant her request for judicial notice of certain evidence or consider other evidence she offered demonstrating she was not terminated for poor performance. We need not detail Drevaleva’s evidentiary submissions. Nowhere does Drevaleva explain how her evidence could overcome the operation of the litigation privilege, so even if the trial court erred by failing to consider it, such error was harmless. “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant’s liability on the claim.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1172; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 972, fn. 15 [because court found litigation privilege applied, it did not need to consider whether the plaintiff showed a probability of prevailing on the elements of the claims].) For example, even if Drevaleva could demonstrate that defendants’ statement was untrue or made with malice, as she contends her libel evidence showed, such proof would not defeat the litigation privilege. (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 920 [communications made in connection with litigation do not necessarily fall outside the privilege simply because they are alleged to be perjurious or unethical].)

E. Remaining contentions
F.
We quickly dispose of Drevaleva’s few remaining arguments. First, she contends existing case law does not clearly establish that the law firm could be represented by one of its employees who is a licensed attorney. Because Drevaleva does not actually argue, either based on reason or authority, that the law firm’s representation was improper, we need not delve into this contention. (Lafferty v. Wells Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, 428 [trial court’s decision is presumed to be correct and appellant has the burden to demonstrate error to obtain reversal].)

Second, Drevaleva argues the trial court erred by denying her motion for discovery under section 425.16, subdivision (g), which she filed with her motion asking the court to reconsider its order granting defendants’ anti-SLAPP motion. Section 425.16, subdivision (g) states that discovery is stayed upon the filing of an anti-SLAPP motion, but that the “court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” Orders under section 425.16, subdivision (g) are reviewed for abuse of discretion. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1061.)

Drevaleva contends discovery was necessary both to establish whether AHS or the law firm was actually liable for making the statement and because only the party that made the statement could receive the benefit of the anti-SLAPP motion or recover attorneys’ fees. Attributing the statement to AHS or the law firm was not necessary for the trial court to rule on liability, because whichever party made the statement did so in the course of the litigation and therefore was protected by the litigation privilege. Discovery was also unnecessary to determine which party could claim the benefit of the anti-SLAPP statute. Drevaleva alleged her claims against both parties, so both parties are entitled to invoke the anti-SLAPP statute. In any event, only AHS requested and was awarded attorneys’ fees, so there is no possible monetary duplication.

V. DISPOSITION
VI.
The trial court’s order is affirmed.

_________________________

BROWN, J.

WE CONCUR:

_________________________

STREETER, ACTING P. J.

_________________________

TUCHER, J.

Drevaleva v. AHS (A158862)