Filed 6/15/20 Alonso v. Chahal CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ENCARNITA ALONSO,

Plaintiff and Appellant,

v.

GURBAKSH CHAHAL,

Defendant and Respondent.

A151250

(City & County of San Francisco

Super. Ct. No. CGC-16-551721)

After Encarnita “Erika” Alonso sued her former employer for discrimination, the company’s CEO Gurbaksh Chahal co-authored an open letter on the company’s website which claimed that Alonso never completed any of her work. About a year later, Chahal posted a blog post written by a third party to his social media which stated that Alonso had a history of suing or threatening to sue her former employers to get a payday. Alonso sued Chahal for defamation over these alleged false statements. Chahal moved to dismiss Alonso’s defamation case as a strategic lawsuit against public participation (SLAPP) (Code Civ. Proc., § 425.16). The trial court denied Chahal’s motion as to the claim based upon the open letter but granted it and struck the claim based upon the blog post. We modify the order to strike only the allegations in the blog post that Alonso sued or threatened to sue her former employers. We affirm the order as modified.

BACKGROUND

According to her complaint, Alonso began working at Gravity4, Inc. (Gravity4) in December 2014 as its Senior Vice President of Global Marketing and was the company’s only female senior executive. She completed all tasks assigned to her by President Wayne Powers, her immediate supervisor. But when she proposed ideas to promote Gravity4’s brand image to Chahal, the company’s founder, chairman, and CEO, he often balked or rejected them. He also belittled or berated Alonso in front of others and favored his younger male employees. Chahal never gave Alonso an opportunity to present her ideas or to explain why she did the things for which she was criticized. In late January 2015, after delivering a marketing plan to Powers as directed, Alonso was terminated.

On April 21, 2015, Alonso filed a wrongful termination suit against Gravity4 and Chahal asserting claims for gender discrimination, retaliation, and harassment.

The evening Alonso filed her wrongful termination case, “An Open Letter from Our Chief of Staff [Michelle Louangamath], Head of Global Recruiting [Staci King], and Chairman & CEO [Chahal]” was published on Gravity4’s website. The open letter contained the following statements: “Here are simple facts about Erika Alonso’s appointment. [¶] . . . [¶] In [her] 6 weeks [of employment with Gravity4] (which included holidays and time off), she failed to produce any tasks assigned by her direct report, Wayne Powers, President of Gravity4. [¶] . . . . [¶] After reviewing the complaint, it is just a sad desperate cry for publicity because of the recent Ellen Pao case. I’m also appalled at her not realizing the harm it could cause the hard-working employees, both male and female, that have put their hearts into working for Gravity4. And, of course sadly this at the end of the day, is about money.”

Almost a year later, on April 9, 2016, someone named Manhoman Singh Grewal published on medium.com a blog post entitled “Why We Must Stand Up for the Injustices forced upon Gurbaksh Chahal.” Grewal’s blog post summarized a number of criminal and civil cases pending against Chahal, including Alonso’s case. Without identifying Alonso by name, the post stated that “a 40 year old female employee brought a charge against Gurbaksh for getting fired on the grounds of age and gender discrimination. Her complaint was based on ‘wrongful termination.’ ” But Grewal’s post stated the company terminated her for “not producing any productive work.” In addition, the blog post said, “It so happens that actually, she has a history of suing or threatening every employer she has ever worked for in the past for a payday. [¶] Once fired, she has a history of threatening her employer to bring a ‘wrongful termination lawsuit’ if the employer doesn’t immediately settle with her.” That same day, Chahal re-posted Grewal’s blog post on his Facebook page and his Twitter feed which had 135,000 followers. The Facebook post was shared by numerous users and received dozens of reactions. Several of Chahal’s followers retweeted or liked his tweet.

A short time later, Alonso filed this suit against Chahal for defamation. Her operative complaint alleged two causes of action. In the first, she alleged the open letter falsely stated that she failed to produce any of the tasks she was assigned at Gravity4 and that Chahal knew or should have known the statement was false. In the second, she alleged that Grewal’s blog post falsely stated that Alonso had a “ ‘history’ of ‘suing or threatening every employer she has ever worked for in the past for a payday’ ” and that Chahal knew or should have known the statement was false when he republished it.

In November 2016, Chahal moved to strike both defamation claims under California’s anti-SLAPP statute. He argued Alonso’s suit was designed “to punish” him because “his company exercised its free speech right to give its side of a dispute of interest to the public that plaintiff herself promoted in the media.” The motion was supported with media reports of Chahal’s career as an entrepreneur in the technology industry whose “success garnered him national media attention” including a publishing deal for his book “The Dream: How I Learned the Risks and Rewards of Entrepreneurship and Made Millions” and an interview with Oprah Winfrey. Chahal also included media reports of domestic violence charges against him in 2014, before Alonso joined Gravity4.

Chahal’s motion was also supported with media reports published on or around the day Alonso filed her wrongful termination lawsuit. There was an article on forbes.com entitled “Gurbaksh Chahal and Gravity4 Hit With Gender Discrimination, Illegal Surveillance Lawsuit” in which Alonso’s counsel relied on Chahal’s domestic violence and Gravity4’s prior record of hiring women to explain the root of the problem was Chahal’s apparent lack of respect for women. In a Wall Street Journal article entitled “New Sexism Suit Brought Against Fired CEO Gurbaksh Chahal,” Alonso was quoted as saying, “I’m not a coward. My family raised me to believe that if I was not part of the solution, then I was part of the problem. . . . I could not stay silent. No woman or human being in the United States should have to deal with this in 2015.”

Alonso’s wrongful termination complaint was also an exhibit to Chahal’s motion. Alonso’s complaint alleged multiple times that Chahal lost his previous CEO position after pleading to charges of domestic violence against his girlfriend. She also alleged Chahal was “plagued by his abusive, criminal past” and hired Alonso, to rehabilitate his gender-biased past and to assist the company in rebuilding its brand, which had been damaged by Chahal’s widely reported behavior. Alonso alleged her termination was part of Chahal’s “pattern and practice of humiliating and abusing women who dared to question Chahal” and that she filed the employment suit to expose Chahal’s “pattern and practice” of violating his legal obligations, including but not limited to “maintaining a workplace free of discrimination and harassment.”

Alonso’s declaration in opposition to Chahal’s motion to strike recited nearly a dozen tasks she had completed as assigned by Powers. She denied that she ever sued or threatened to sue an employer for wrongful termination other than Gravity4 or ever “attempted to coerce payment from an employer for anything beyond the confines of the law.” Her opposition included screen shots of Chahal’s republication of Grewal’s blog post. On his Facebook post, Chahal commented, “Thank you to Manhoman Singh Grewal, a community activist, whom I’ve never met, for doing what no media outlet has done to date: actually show the injustices, prejudice, and racial discrimination I have faced from George Gascon for the last 2+ years.” On his retweet, he commented, “Thank you @ManmohanGrewal, whom I’ve never even met, for showing racial discrimination I have faced w/ @GeorgeGascon.”

Chahal’s reply argued that Alonso had failed to produce any competent evidence that she completed the tasks assigned by Powers, or that Powers believed or agreed that she had. He included an email exchange he had with Alonso in late January 2015 regarding a draft LinkedIn summary for Gravity4 employees she had prepared with her staff. In response to Alonso’s request for additional time to work on the task, Chahal wrote: “I’ve already approved. You have a bunch of other things to do. I am not a believer of analysis/paralysis. So, please get on with the program and move on to your next assignment.” Chahal’s reply stated that Alonso republished Grewal’s blog post on her social media and argued he could not be held liable for defamation for publishing the same material she did.

The trial court partially denied and partially granted Chahal’s anti-SLAPP motion. The court found that that statements in the open letter and in the Blog Post each arose from protected activity within the meaning of section 425.16. The court considered Alonso to be a limited purpose public figure. Thus, she had the burden to come forward with admissible evidence showing a basis to find Chahal acted with actual malice in writing the open letter and republishing the blog post. The court found she carried her burden with respect to the open letter because she showed Chahal knew his statement that “Alonso failed to produce any tasks assigned” was false. The court discussed the late January 2015 email exchange, and determined “there [was] evidence in the record . . . upon which a jury could find that [Chahal] knew that the statement in the open letter that ‘plaintiff failed to produce any tasks assigned’ was false at the time it was posted on the website of Gravity4, Inc.” His knowledge of its falsity provided the requisite evidence of actual malice, and the court denied the motion with respect to the claim based upon the open letter.

But the claim concerning the blog post was a different matter. The court found that Alonso presented no admissible evidence that Chahal knew the statements in the blog post regarding her suits or threats against prior employers were false or that he recklessly disregarded their falsity. Because Alonso likely could not provide admissible evidence that Chahal acted with actual malice in republishing the blog post, the court granted the motion to strike her second cause of action. The court awarded Chahal $36,013.69 in attorney’s fees and costs. Alonso appeals. No respondent’s brief has been filed.

DISCUSSION

A, The Anti-SLAPP Statute and Standard of Review

“ ‘Code of Civil Procedure section 425.16 sets out a procedure for striking complaints in harassing lawsuits that are commonly known as SLAPP suits . . . , which are brought to challenge the exercise of constitutionally protected free speech rights.’ [Citation.] A cause of action arising from a person’s act in furtherance of the ‘right of petition or free speech under the [federal or state] Constitution in connection with a public issue 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 claim will prevail. (§ 425.16, subd. (b)(1).) ‘The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.” [Citation.] 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. [Citation.] “[C]laims with the requisite minimal merit may proceed.” ’ [Citation.] ‘We review de novo the grant or denial of an anti-SLAPP motion.’ [Citation.] As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ ” (Sweetwater Union High School Dist. v. Gilbane Building. Co. (2019) 6 Cal.5th 931, 940.)

In cases when there is no respondent’s brief on appeal, we examine the record and consider the opening brief and oral argument, if any, to determine whether the trial court’s ruling involved prejudicial error. (See Conness v. Satram (2004) 122 Cal.App.4th 197, 200, fn. 3; Cal. Rules of Court, rule 8.220(a)(2).)

B. Protected Activity

Alonso first contends that Chahal did not meet his burden to show the alleged defamation arose from protected activity because his republication of the blog post was not in connection with an issue of public interest. We disagree.

“A defendant can meet the burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating the act underlying the plaintiff’s cause of action falls within one of the four categories identified in section 425.16, subdivision (e).” (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1086 (Cabrera).) One such area is an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” and includes “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest” or “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.” (§ 425.16, subds. (b)(1), (e)(3)¬¬¬¬–(4).)

But public issues and matters of public interest are not defined in section 425.16. The court in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913 described three situations in which statements may concern a public issue or a matter of public interest: (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; or (3) the statement or activity precipitating the claim involved a topic of widespread public interest. (Id. at p. 924.)

Here, Chahal produced evidence he was someone in the public eye. The various media reports included with his motion showed that he attracted national media attention for his success in the technology sector. He also produced evidence that, as a renowned technology entrepreneur, his incident of domestic violence attracted public interest and was reported in the media. This included a report of his guilty plea to charges brought for beating his girlfriend. Although Alonso joined Gravity4 some months after Chahal’s plea, her complaint referred to the domestic violence charges several times. In addition, Alonso couched her termination in the context of Chahal’s general mistreatment of women. She alleged her “termination occurred as part of a pattern and practice of humiliating and abusing women who dared to question Chahal, a serial entrepreneur with a legendary temper.” This theme was repeated in media reports published around the time Alonso filed suit that were based on interviews with Alonso or her attorney. Both the forbes.com article and the Wall Street Journal piece set Alonso’s case against “a certain backdrop of the conduct of the CEO of this company,” who “ ‘does not appear to respect women, period.’ ”

Chahal’s evidence showed that due to his visibility and reputation as a technology entrepreneur, his mistreatment of women was a matter of public interest as were the responses to his conduct. Alonso’s wrongful termination suit and its surrounding publicity were framed around a narrative of Chahal’s abusive behavior directed toward women. The public interest in Chahal’s misconduct clearly included Alonso’s employment and her termination as discussed in the blog post. We agree with the trial court that Chahal’s republication of the post concerned a matter of public interest within the meaning of section 425.16.

We also agree with Alonso that her employment history is “decidedly not a matter of public interest” and that the real interest is “Chahal, his criminal past, and the allegations concerning his violent treatment of women, not Alonso or her legal claims.” But given the nexus between Alonso’s employment claim and Chahal’s “pattern and practice of humiliating and abusing women” we cannot so easily separate the two. Alonso placed her employment lawsuit into the broader discussion in national media regarding Chahal’s mistreatment and abuse of women. Her lawsuit and employment history became part and parcel of this larger matter of public interest.

C. Probability of Prevailing

Alonso challenges the superior court’s determination that she could not show a probability of success on her second claim in two ways. She contends the court erred when it found she was a limited purpose public figure who had to prove actual malice to recover for defamation. She also asserts that even if the actual malice standard applied, she satisfied her burden of demonstrating a probability of success. Again, we disagree.

1. Limited purpose public figure
2.
“ ‘When a defamation action is brought by a public figure, the plaintiff, in order to recover damages, must show that the defendant acted with malice in publishing the defamatory communication.’ [Citation.] ‘A person may become a public figure in several different ways. Some persons have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts.’ [Citation.] A person may also become a ‘ “limited” purpose public figure.’ ” (Cabrera, supra, 197 Cal.App.4th at p. 1091.) “The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.) In order to characterize a plaintiff as a limited purpose public figure, three elements must be present. “First, there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged defamation must be germane to the plaintiff’s participation in the controversy.” (Ibid.)

There is no basis here to question the trial court’s conclusion that Alonso became a limited purpose public figure. As we have explained, Chahal’s mistreatment of women was a matter of public interest. In her employment lawsuit, Alonso invoked the domestic violence charges against Chahal and alleged his “pattern and practice of humiliating and abusing women.” She injected herself into the public discussion about Chahal’s sexism. The nexus is underscored by the publicity Alonso and her attorney undertook regarding the lawsuit. Chahal’s republication of the blog post was a response to Alonso’s participation in the public controversy as the post attempted to undermine the merits of Alonso’s lawsuit and her motivation for filing it. Alonso’s lawsuit and the publicity surrounding it were not detached from Chahal’s widely reported mistreatment and abuse of women. By alleging her termination was part of Chahal’s pattern and practice of abusing women and publicizing it as such, Alonso inserted her employment lawsuit into the public discussion and became a limited purpose public figure. Accordingly, in order to recover against Chahal for defamation, Alonso needed to demonstrate a probability that she could prove actual malice.

2. Malice

To establish malice at trial Alonso would have to show by clear and convincing evidence that Chahal made the allegedly defamatory statements with knowledge, or reckless disregard, of their falsity. (See Cabrera, supra, 197 Cal.App.4th at p. 1093; Copp v. Paxton (1996) 45 Cal.App.4th 829, 846.) “This requirement presents ‘ “a heavy burden, far in excess of the preponderance sufficient for most civil litigation.” ’ ” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84.) “The burden of proof by clear and convincing evidence ‘requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.’ ” (Copp, at p. 846.)

In light of the showing Alonso would have to make at trial, we cannot conclude that she demonstrated a likelihood of success on her claim that Chahal republished the blog post with malice. The gravamen of this second cause of action was that “Chahal publicly posted . . . a link to the Blog Post containing false statements about Alonso, including that Alonso has a ‘history’ of ‘suing or threatening every employer she has ever worked for in the past for a payday.’ (the ‘Blog Post Statements’).” She alleged Chahal failed to “engage in any reasonable investigation, such as speaking with Alonso or any of her prior employers to ascertain whether she had actually sued or ‘threatened’ all – or any – of her prior employers.” Although the blog post also referred to Alonso’s failure to “produce any productive work,” Alonso’s second cause of action focused on the statements regarding her alleged practice of suing employers for a payday.

There is no evidence in the record that shows Chahal knew the statements about Alonso suing past employers were false or that he had serious doubts about their accuracy. Alonso included screen shots of Chahal’s posts on his Facebook account and Twitter feed. In both his Facebook post and his retweet of the blog post, Chahal thanks the author of the post for exposing purported racial discrimination of the district attorney who prosecuted him for domestic violence. Chahal did not specifically mention Alonso or her employment lawsuit, even though her suit was one of the many civil and criminal matters discussed in the blog post.

Alonso contends that because “Chahal thoroughly investigated [her] background and work history, and was sufficiently satisfied with the results to hire her,” he knew she had no trouble with her past employers. But the circumstantial evidence she relies on does not establish actual malice or reckless disregard for truth. She cites her own declaration describing her recruitment and her acceptance of the Gravity4 job shortly after interviews with Chahal and others. But the fact she was hired by Gravity4 does not warrant a conclusion that Chahal “thoroughly investigated” her background or that if he did, he investigated every employer Alonso ever had. It is also reasonably possible that Gravity4’s director of recruiting, not Chahal, conducted Alonso’s background investigation.

Alonso’s other basis for actual malice is Chahal’s apparent reliance on the truthfulness or accuracy of the original author of the blog post. She says this was at least reckless because Chahal didn’t know the author and had no reasonable basis to trust the author’s statements. However, “[t]he reckless disregard test is not a negligence test measured by whether a reasonably prudent person would have published, or would have investigated before publishing, the defamatory statement. [Citation.] Instead, the evidence must ‘permit the conclusion that the defendant actually had a “high degree of awareness of . . . probable falsity.” [Citation.] As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. [Citations.]’ [Citation.] Instead, to support a finding of actual malice, the failure to investigate must fairly be characterized as demonstrating the speaker purposefully avoided the truth or deliberately decided not to acquire knowledge of facts that might confirm the probable falsity of charges.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 114.) There is no such showing here.

Neither is Chahal’s apparent ill will towards Alonso and his offensive behavior enough to demonstrate the requisite malice and disregard for truth. The test is “a subjective test, under which the defendant’s actual belief concerning the truthfulness of the publication is the crucial issue. [Citation.] This test directs attention to the ‘defendant’s attitude toward the truth or falsity of the material published[,] . . . [not] the defendant’s attitude toward the plaintiff.’ ” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.)

The trial court correctly struck the allegation that Chahal defamed Alonso by repeating the blog post statement that she sued or threatened all her previous employers. However, to the extent that the blog post repeated Chahal’s claim that Alonso was terminated “for not producing any productive work,” this statement was so substantially similar to the actionable statement in the open letter that it should not be stricken from the complaint. An anti-SLAPP motion may attack parts of a count or cause of action as pleaded, just like a conventional motion to strike. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) To the extent Alonso’s second cause of action is based on the statement that Alonso was terminated “for not producing any productive work,” she has demonstrated sufficient malice to overcome the motion to strike and those comments remain actionable. (See Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 273 [“[I]t is also the general rule that every repetition of the defamation is a separate publication and hence a new and separate cause of action even though the repeater states the source.”].)

DISPOSITION

The order granting Chahal’s anti-SLAPP motion directed to the allegations in Alonso’s second cause of action for defamation is modified to strike only the following portions of the second amended complaint. Paragraph 51 of the second amended complaint is stricken in its entirety, and the phrase “or any of her prior employers to ascertain whether she had actually sued or ‘threatened’ all – or any – of her prior employers” is stricken from paragraph 54. As modified, the order is affirmed. In all other respects, Alonso’s defamation claims remain actionable and unaffected by the motion to strike. The parties shall bear their own costs on appeal.

 

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Petrou, J.

Alonso v. Chahal, A151250