Filed 1/23/20 Entrepreneur Media, Inc. v. Smith CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ENTREPRENEUR MEDIA, INC.,

Plaintiff and Respondent,

v.

SCOTT SMITH,

Defendant and Appellant.

A147525

(San Francisco City & County

Super. Ct. No. CGC-13-530730)

This appeal, the latest in the parties’ 20-year history of litigation, is from the grant of plaintiff Entrepreneur Media, Inc.’s (EMI) special motion to strike (Code Civ. Proc., § 425.16) defendant Scott Smith’s cross-complaint. Smith alleged two causes of action in his cross-complaint—abuse of process and intentional infliction of emotional distress. On appeal, he claims the trial court erred in concluding his claims were based on protected activity and thus subject to a special motion to strike, and erred in further concluding he failed to show a probability of prevailing on either claim. We affirm.

BACKGROUND

EMI filed the instant lawsuit for fraudulent conveyance after obtaining a federal court judgment against Smith and its collection efforts met with frustration.

Smith filed a cross-complaint on being served with interrogatories and requests for production of documents. He grounded his cause of action for abuse of process on the propounded discovery and his cause of action for intentional infliction of emotional distress on allegedly abusive and harassing e-mails, which he attributed to “unknown individuals or entities working at EMI’s behest.”

EMI responded with a special motion to strike under the anti-SLAPP statute, section 425.16. Smith filed opposition, which included a declaration with numerous exhibits. Exhibit E purportedly included “true and correct copies of a few of the dozens of e-mails” undergirding his intentional infliction claim.

EMI filed written objections to all of the documents attached to Smith’s declaration, including Exhibit E.

After sustaining EMI’s objections, the trial court granted the special motion to strike. Its written order states in pertinent part: “Plaintiff’s Special Motion to Strike is Granted. Defendants’ abuse of process cross-claim is barred by the litigation privilege under Civil Code section 47(c). Defendant’s Intentional Infliction of Emotional Distress claim is unlikely to prevail on the merits. Harassing emails sent in the course of litigation, such as those Plaintiff received, are injurious but not extreme and outrageous under Cochran v. Cochran (1998) 65 Cal.App.4th [488,] 491 [(Cochran)]. Furthermore, Defendant’s Intentional Infliction of Emotional Distress claim arguably does not arise out of constitutionally protected activity because it is based on threatening behavior.”

DISCUSSION

“ ‘ “The Legislature enacted section 425.16 to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§ 425.16, subd. (a).) Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” ’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” ’ ” (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 216 (Central Valley).) “ ‘[S]ubdivision (a) of section 425.16 expressly mandates, the section “shall be construed broadly.” ’ ” (Ibid.)

“ ‘Subdivision (b)(1) of section 425.16 provides that “[a] cause of action against a person 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 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.” Subdivision (e) of section 425.16 elaborates the four types of acts within the ambit of a SLAPP. . . .’ ” (Central Valley, supra, 19 Cal.App.5th at p. 216.)

Subdivision (e) provides “As used in this section, ‘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’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) 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, (3) 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 (4) 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, subd. (e).)

Thus, a two-step process is used in determining whether an action is a SLAPP. “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).)

“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics omitted.)

We review the grant of an anti-SLAPP motion de novo. (Park, supra, 2 Cal.5th at p. 1067.)

Cause of Action for Abuse of Process

Protected Activity

Smith claims his cause of action for abuse of process was not subject to a special motion to strike because it did “not arise out of ‘a written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . .’ (§ 425.16, subd. (e)(2).)” (Italics omitted.) This is so, he asserts, because the discovery requests, which indisputably were the basis of his cause of action, were “irrelevant to this case and duplicative of the discovery . . . in other cases” and thus were not “ ‘made in connection with an issue under consideration.’ ” (Italics omitted.)

Courts have adopted “ ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ ” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) “The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Ibid.) “Protected activity thus includes the filing of lawsuits, and statements and pleadings made in or in preparation for civil litigation.” (ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1046.) Indeed, even an investigation in furtherance of answering discovery is protected activity under the statute. (Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 611–612.)

The promulgation of discovery requests, accordingly, falls squarely within the confines of protected activity.

Probability of Prevailing

Smith further asserts that even if his abuse of process claim was based on protected activity and thus subject to a special motion to strike, he made a sufficient showing of “ ‘minimal merit’ ” to defeat the motion.

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. [Citations.] It has been ‘interpreted broadly to encompass the entire range of “procedures” incident to litigation.’ [Citation.] ‘[T]he essence of the tort [is] . . . misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.’ [Citation.] To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056–1057.)

The trial court concluded Smith’s abuse of process claim was “barred by the litigation privilege.” “A privileged publication or broadcast is one made: [¶] . . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2. . . .” (Civ. Code, § 47, subd. (b).)

The litigation privilege “has been given broad application. Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] 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.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 211–212.)

Smith asserts “irrelevant discovery can be the subject of an abuse of process claim and is not barred by the litigation privilege,” citing Younger v. Solomon (1974) 38 Cal.App.3d 289 (Younger). In that case, the plaintiff sued the defendant for intentional infliction of emotional distress, claiming to have been the victim of an alleged “ambulance chasing” scheme by the defendant and his law firm. In the course of discovery, the plaintiff propounded an interrogatory stating a State Bar complaint had been made against the defendant and his firm, and attaching a copy of the letter complaint signed by a number of local attorneys. This triggered a cross-complaint by the defendant against the attorneys, alleging the intentional infliction lawsuit had been filed as a ruse to make public the complaint, which was otherwise confidential under State Bar rules. (Id. at pp. 293–295.) The trial court granted summary judgment against the cross-complainant; the Court of Appeal reversed. (Id. at pp. 295, 302.)

The appellate court first reaffirmed that the privilege applies in abuse of process cases, just as it does in defamation and similar kinds of cases. (Younger, supra, 38 Cal.App.3d at pp. 300–301.)

However, the privilege attaches “ ‘only to a publication that has a reasonable relation to the action.’ ” (Younger, supra, 38 Cal.App.3d at p. 301.) And that, said the court, was the difficulty in the case before it. While the information sought by the interrogatory was related to the case and to that extent the discovery was within the privilege, the fact a State Bar complaint had been filed was not related and to that extent the interrogatory and the attached copy of the State Bar complaint were not protected. (Id. at pp. 301–302.) Publication of the confidential State Bar complaint had “no logical relation or connection with [the plaintiff’s] action and,” in the court’s “opinion, no reasonable person” would have “doubt[ed] its impropriety.” (Ibid.) “To come within the privilege, the fact communicated itself must have some bearing on or connection with the subject matter of the litigation. That charges were pending against appellant before the State Bar had no such relation to [plaintiff’s] action.” (Id. at p. 302.)

EMI’s discovery suffered from no such defect. On the contrary, it was squarely related to EMI’s efforts to identify and retrieve property Smith allegedly conveyed to avoid paying the federal court judgment against him.

Accordingly, the litigation privilege is an absolute bar to Smith’s abuse of process claim, and the trial court properly determined Smith failed to show this claim had even “minimal merit.”

Cause of Action for Intentional Infliction of Emotional Distress

Protected Activity

Smith based his cause of action for intentional infliction of emotional distress on a series of “harassing and abusive” e-mails he allegedly received from a “James Johnson” using an e-mail address of “ ‘jamesjtechinfo@gmail.com.’ ” Smith claimed these e-mails “can only be from EMI” or “unknown individuals or entities working at EMI’s behest.” He further alleged “[t]he e-mails . . . contain such specific details about the various legal proceedings involving EMI and Smith that they can only come from EMI as a participant in these actions. In addition, the e-mails have repeatedly referenced facts and details from these cases that were not part of the public record or took place before there were any means for that information to have become publicly available in the record for any non-EMI connected person to have noticed.” He alleged the e-mails have “often been sent right before or after key hearing dates on motions in various cases with EMI and have taunted Smith, calling him a ‘pathological liar,’ a ‘con artist,’ and a ‘huge hypocrite.’ In addition a photo of a jail cell was repeatedly sent to Smith before a series of hearings in the Eastern District of California case between EMI and Smith.” Smith alleged the e-mails called him “ ‘despicable,’ ‘detestable,’ ‘cowardly,’ ‘spineless,’ ‘scamming,’ and a ‘total failure’ ” and were “so offensive as to slander Smith’s girlfriend, co-defendant Karen Mix, as being ‘obviously very weak minded and has very, very low self esteem’ to be in a relationship with Smith.”

Smith maintains the e-mails cannot be characterized as “statements made in a judicial proceeding” or “commentary on the issues before the courts” protected under section 425.06, subdivision (e)(2), but rather “are purely personal attacks on [Smith] and his character, as well as his girlfriend.” Thus, according to Smith, his intentional infliction claim was not based on protected activity and was not subject to a special motion to strike.

Regardless of their allegedly insulting language, however, Smith specifically alleged the e-mails were replete with commentary on the issues before the federal and state courts. Indeed, he alleged the e-mails “contain such specific details about the various legal proceedings involving EMI and Smith that they can only come from EMI as a participant in these actions. In addition, the e-mails have repeatedly referenced facts and details from these cases that were not part of the public record or took place before there were any means for that information to have become publicly available in the record for any non-EMI connected person to have noticed.” Given the directive in the anti-SLAPP statute that it “shall be construed broadly” (§ 425.16, subd. (a)), we conclude the trial court did not err in concluding Smith’s intentional infliction claim was also based on protected activity and thus was subject to a special motion to strike.

Probability of Prevailing

“ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ [Citations.] ‘ “Conduct, to be ‘ “outrageous ” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“In evaluating whether the defendant’s conduct was outrageous, it is ‘not . . . enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” (Cochran, supra, 65 Cal.App.4th at p. 496.)

“Further, the tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . .’ ” (Cochran, supra, 65 Cal.App.4th at p. 496, italics omitted.)

In Cochran, for example, the plaintiffs, a mother and daughter, asserted a claim for intentional infliction of emotional distress based on a message left by the defendant on their son’s/brother’s answering machine, which they construed as a death threat. (Cochran, supra, 65 Cal.App.4th at p. 491.) The message stated, “he was about to go to Florida, where [daughter] was living at the time. Respondent’s message continued: ‘ “What I am going to do is go down and deliver for [daughter] the Value Jet around the world vacation package. She can fly any time she wants to as soon as they start flying again. Ok [son], I just wanted you to be aware of that. A little special thing I got for her.” ’ This message referred to the then recent crash of a Value Jet airliner in the Florida Everglades which killed all aboard. Respondent knew that [mother] was living with their son at the time and would both hear the message and relay it to [daughter]. Respondent intended the message to be taken as a death threat against [daughter], and appellants, upon hearing the message, understood it as such. As a result of hearing the message, appellants suffered severe and extreme emotional distress.” (Id. at p. 492.)

The court concluded the alleged message “was the ‘steam’ of an irascible temper and not smoke from the fire of an actionable death threat. [¶] . . . [¶] There is no indication that respondent ever took any steps to either carry out his alleged thereat or, at the least, make the threat appear more real. Without more, the ‘Value Jet’ message . . . is little more than the release of steam from the pressure cooker of the parties’ ill will. As such, it is precisely what the Restatement had in mind when it excluded ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’ from the tort.” (Cochran, 65 Cal.App.4th, supra, at pp. 497–498.)

In this case, the alleged content of the e-mails, while childish and unprofessional, can best be characterized as a litany of petty insults and sophomoric jokes. While no doubt annoying, the alleged messages are the types of “ ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’ ” which “plaintiffs must necessarily be expected and required to be hardened to.” (Cochran, supra, 65 Cal.App.4th at p. 496.)

Accordingly, the trial court did not err in concluding Smith also failed to show his intentional infliction claim had even “minimal merit.”

DISPOSITION

The order granting the motion to strike is affirmed. Each party to bear their own costs on appeal.

 

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A147525, Entrepreneur Media Inc. v. Smith