Filed 10/23/14 Powers v. McCandless CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
DEBORAH POWERS,
Plaintiff and Respondent,
A137568
v.
TIMOTHY McCANDLESS et al. (Contra Costa County
Super. Ct. No. C12-01591)
Defendants and Appellants.
Plaintiff Deborah Powers filed an action, arising from alleged sexual harassment
during her employment, against Timothy McCandless; McCandless’s law firm; and his
office manager, Mike Hodges (collectively defendants). The trial court denied
McCandless’s special motion to strike the complaint, brought pursuant to the provisions
of California’s strategic lawsuit against public participation (anti-SLAPP) statute (Code
Civ. Proc., § 425.16).1 McCandless now appeals, contending that the trial court erred
when it denied his motion because, first, McCandless’s statements to Powers fell within
the parameters of protected speech for purposes of section 425.16, subdivision (e)(4), and
second, Powers did not show a probability of prevailing on the merits. Because we
conclude Powers’s action did not arise from a protected activity, we shall affirm the trial
court’s order.
1
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
1
BACKGROUND
On June 29, 2012, Powers filed a complaint for damages against McCandless;
Timothy McCandless, a Law Corporation; Project Property One; and Mike Hodges,
alleging causes of action for (1) sexual harassment, (2) sexual hostile work environment,
(3) sex discrimination, (4) failure to prevent sexual harassment from occurring, (5)
retaliation, (6) negligent supervision of employee, and (7) intentional infliction of
emotional distress. Powers’s complaint contained the following factual allegations: In
January 2012, she was hired as a paralegal in McCandless’s law office in Martinez.
From January to March 2012, Hodges, who was McCandless’s employee and Powers’s
supervisor, sexually harassed Powers at work.2 Defendants did nothing to stop the
harassment and, after Powers complained about the harassment, she was fired from her
job in retaliation for her complaints. Powers suffered anxiety, depression, and emotional
distress as a result of defendants’ conduct.
On October 3, 2012, McCandless filed a motion to strike Powers’s complaint,
pursuant to section 425.16. In a declaration filed in support of the motion, McCandless
stated, inter alia, the following: he hired Powers on January 18, 2012, as a paralegal in
his law office, in which he worked as a sole practitioner. Hodges was his office manager.
On March 10, 2012, Powers called McCandless and complained about an inappropriate
text message she had received from Hodges. At McCandless’s request, she forwarded to
him Hodges’s text message, which stated, “ ‘you must have been close to my heart, LOL,
have a nice weekend, see you Monday.’ ” McCandless spoke with Hodges, who
admitted that he had accidentally “pocket dialed” Powers with his cell phone. It was
McCandless’s impression that Hodges had been joking with Powers about having his cell
phone in his shirt pocket when it accidentally dialed her cell phone.
McCandless, who had never before received any notification of inappropriate
conduct on the part of Hodges towards Powers or any other employee in the Martinez
office, instructed “Hodges to leave the Martinez office and return to the Southern
2
The complaint included several examples of the alleged sexual harassment.
2
California office” until McCandless could ascertain what had happened. A few days
later, McCandless asked Powers to provide him with “a list of possible services she could
provide to the office,” which she did. Because Hodges had been sent away, McCandless
was considering whether Powers had the skills to be the new office manager. Since
Powers was hired, she had experienced personal difficulties that kept her from coming
into the office as expected. In addition, her skills were not “up to what was represented
by her” in that she was having difficulty preparing even simple documents.
On March 22, 2012, McCandless met with Powers “to discuss her problems with
Defendant Hodges, her hours, the possibility of taking-over the position of the office
manager, what hours she wanted to work, and her general availability.” He suggested
possible changes in her hours and also suggested that she “might be interested in opening
the mail, filing documents in the filing cabinets, and meeting clients.” Powers responded
that another employee, Eric Santos, “could perform those tasks, that she was not
interested in doing this type of work, and that she preferred to resign. During the entire
discussion, there was no mention of inappropriate conduct by [Powers] as to Defendant
Michael Hodges whatsoever.” This discussion was overheard by Eric Santos, who was in
the office at the time.
Hodges filed a declaration in support of McCandless’s anti-SLAPP motion, in
which he denied engaging in any form of sexual harassment of Powers. For example, he
had accidentally dialed her cell phone, but that call and the follow-up text message were
never intended to have any sexual connotations. Hodges also referred to Powers’s
personal difficulties that caused her to be out of the office more than expected and
described her skills as being below what she had represented them to be.
Eric Santos also filed a declaration in support of McCandless’s motion, in which
he stated that he worked in McCandless’s law office and had had regular contact with
both Powers and Hodges. Although he had heard Hodges mention “that it was nice to
have a beautiful and/or good looking staff, because the clients would feel comfortable
with them,” Santos did not consider that statement sexual harassment and had never
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witnessed any conduct by Hodges that could reasonably be considered sexual harassment
of Powers or anyone else.
On March 22, 2012, Santos overheard a meeting between McCandless and
Powers, in which, inter alia, McCandless suggested Powers might be interested in
opening the mail, filing documents, meeting clients, and acting as the office manager.
Powers responded that Santos “could perform those tasks, that she was not interested in
doing this type of work, and that she preferred to resign.” Santos never heard Powers
“mention anything about inappropriate conduct on the part of . . . Hodges”; she merely
indicated her desire to quit. Nor had Santos ever heard McCandless express any negative
words or hatred towards Powers.
Powers subsequently filed a declaration in support of her opposition to
McCandless’s anti-SLAPP motion, in which she stated that she worked as a paralegal in
McCandless’s law office from January 2012, to March 22, 2012. The declaration set
forth various examples of how Hodges—who had hired, trained, and supervised her—
sexually harassed her during her employment. On March 15, 2012, Powers complained
to McCandless about the sexual harassment. Approximately one week later, on March
22, 2012, McCandless fired her. Before terminating her, McCandless told her that “he
either had to let [her] go or let defendant Hodges go, and he wasn’t letting defendant
Hodges go.” Powers had never been disciplined or given any indication that her
employment was in jeopardy before she complained about Hodges sexually harassing
her.
On December 12, 2012, the trial court adopted its tentative ruling denying
McCandless’s motion, as follows: “Defendant Timothy McCandless’s motion to strike
Plaintiff’s Complaint pursuant to . . . [s]ection 425.16 is denied. Defendant Mike Hodges
has not been served with the Complaint and therefore cannot move to strike it pursuant to
the statute.[3] None of Defendant’s conduct alleged in the Complaint falls within any of
3
McCandless asserts that the trial court incorrectly stated in its ruling that Hodges
had not been served with the complaint and also wrongly implied that Hodges was a
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the four categories of First Amendment conduct identified in [s]ection 425.16[,
subdivision] (e). Plaintiff’s Complaint arises from sexual harassing conduct by Hodges,
which is alleged to have been known about by McCandless, yet overlooked. There are no
statements made by Defendant even alleged in the Complaint, let alone statements made
by McCandless before an official proceeding or made in connection with an issue under
consideration or review in an official proceeding, as required under the first two
categories of conduct in [s]ection 425.16[, subdivisions] (e)(1), (2).
“As to statements made ‘in a place open to the public or a public forum in
connection with an issue of public interest,’ the Complaint alleges no statements by
McCandless at all, let alone ones in a place open to the public or a public forum in
connection with an issue of public interest. Hodges’s alleged sexual harassment of
Plaintiff and McCandless’s alleged permission of it occurred in a private workplace. See
. . . [s]ection 425.16[, subdivision] (e)(3).
“Nor does the Complaint allege ‘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.’ The ‘right to petition’ refers
to the right to petition the government for the redress of grievances and is clearly not
implicated in any of the conduct alleged by Hodges and McCandless [sic] in the
Complaint. See . . . [s]ection 425.16[, subdivision] (e)(4).”
DISCUSSION
I. The Anti-SLAPP Statute and Standard of Review
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
moving party as to the motion to strike. Neither of these alleged mistakes in any way
affect our analysis of the issues raised on appeal.
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plaintiff will prevail on the claim.” Subdivision (e) of section 425.16 elaborates the types
of acts within the purview of the anti-SLAPP law: “As used in this section, ‘act in
furtherance of a person’s right to 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 to petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.”
“A two-step process is used for determining whether an action is a SLAPP. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity, that is, by demonstrating
that the facts underlying the plaintiff's complaint fits one of the categories spelled out in
section 425.16, subdivision (e). If the court finds that such a showing has been made, it
must then determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim. [Citation.]” (Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 463 (Hecimovich), citing Navellier v. Sletten
(2002) 29 Cal.4th 82, 88.)
“ ‘The Legislature enacted section 425.16 to prevent and deter “lawsuits [SLAPPs]
brought primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for 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.’ [Citation.]”
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(Hecimovich, supra, 203 Cal.App.4th at p. 463, quoting Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 192.) Finally, subdivision (a) of section 425.16 expressly
mandates that the statute “shall be construed broadly.”
We review the trial court’s ruling on an anti-SLAPP motion de novo.
(Hecimovich, supra, 203 Cal.App.4th at p. 464.)
II. Whether Powers’s Cause of Action Arises from Protected Activity
McCandless contends the conversation between him and Powers on March 22,
2012, in which she claims he fired her and he claims he offered her a promotion,
constitutes protected speech on a public issue under the provisions of section 425.16,
subdivision (e)(4).
In World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (World
Financial Group) (2009) 172 Cal.App.4th 1561, the appellate court discussed subdivision
(e)(4) of section 425.16, which applies to claims “arising from” speech or conduct “ ‘in
furtherance of the exercise of the constitutional right of . . . free speech in connection
with a public issue or an issue of public interest’ ”: “ ‘As courts applying the anti-SLAPP
statute have recognized, the “arising from” requirement is not always easily met.
[Citations.]’ A claim does not arise from constitutionally protected activity simply
because it is triggered by such activity or is filed after it occurs. [Citation.] Rather, the
focus is on the substance of the lawsuit. ‘[T]he critical point is whether the plaintiff’s
cause of action itself was based on an act in furtherance of the defendant’s right of
petition or free speech. [Citations.]’ [Citation.] In other words, ‘ “ ‘the act underlying
the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’
must itself have been an act in furtherance of the right of petition or free speech.”
[Citation.]’ [Citation.] To determine whether the ‘arising from’ requirement is met, we
look to ‘the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.’ (§ 425.16, subd. (b)(2) . . . .)” (World Financial
Group, at pp. 1568-1569, citing, inter alia, Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 66; see also Moriarty v. Laramar Management Corp. (2014) 224
Cal.App.4th 125, 133-134.)
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In World Financial Group, supra, 172 Cal.App.4th at page 1564, a corporation
filed an action alleging that former employees had misappropriated trade secrets and
utilized confidential information to solicit its associates and customers. The defendants
argued that their conduct was protected activity because their actions involved “ ‘the
pursuit of lawful employment’ ” and “ ‘workforce mobility and free competition,’ ”
which they claimed were “matters ‘of public interest and protected public policy.’ ” (Id.
at p. 1569.) The appellate court rejected these arguments, explaining that, “[w]hile
employee mobility and competition are undoubtedly issues of public interest when
considered in the abstract, one could arguably identify a strong public interest in the
vindication of any right for which there is a legal remedy. ‘The fact that “a broad and
amorphous public interest” can be connected to a specific dispute is not sufficient to meet
the statutory requirements’ of the anti-SLAPP statute. [Citation.] By focusing on
society’s general interest in the subject matter of the dispute instead of the specific speech
or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-
called ‘synedoche theory of public issue in the anti-SLAPP statute,’ where ‘[t]he part [is
considered] synonymous with the greater whole.’ [Citation.] In evaluating the first
prong of the anti-SLAPP statute, we must focus on ‘the specific nature of the speech
rather than the generalities that might be abstracted form it. [Citation.]’ [Citation.]” (Id.
at p. 1570.)
World Financial Group cited Rivero v. American Federation of State, County and
Municipal Employees, AFL-CIO (Rivero) (2003) 105 Cal.App.4th 913, 915-917, in which
a janitorial supervisor at a public university filed an action against a union, alleging, inter
alia, libel and slander, after the union published information about him in union
publications and a petition. A panel of this Division addressed the “public issue,” or
“issue of public interest” requirement of section 425.16, subdivision (e)(4). We
discussed various cases, noting that courts had broadly construed “public interest” “ ‘to
include not only governmental matters, but also private conduct that impacts a broad
segment of society and/or that affects a community in a manner similar to that of a
governmental entity. [Citations.]’ [Citation.]” (Rivero, at p. 920.) Although none of the
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cases defined “the precise boundaries of a public issue,” in each case, “the subject
statements either concerned a person or entity in the public eye [citations], conduct that
could directly affect a large number of people beyond the direct participants [citations],
or a topic of widespread public interest [citation].” (Id. at p .924.)
We observed that the union’s statements concerned supervision of eight custodians
by Rivero, “an individual who had previously received no public attention or media
coverage. Moreover, the only individuals directly involved in and affected by the
situation were Rivero and the eight custodians. Rivero’s supervision of those eight
individuals is hardly a matter of public interest.” (Rivero, supra, 105 Cal.App.4th at
p. 924.) The union nonetheless argued that whenever a person criticizes an unlawful
workplace activity his or her statements concern a public issue because public policy
favors such criticism. We disagreed, stating that, “if the Union were correct, discussion
of nearly every workplace dispute would qualify as a matter of public interest. We
conclude, instead, that unlawful workplace activity below some threshold level of
significance is not an issue of public interest, even though it implicates a public policy.”
(Ibid.) We held that the union had not met its burden of establishing that its statements
had exceeded that threshold level of significance. (Ibid.)
McCandless cites Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos), which
also involved a sexual harassment claim. Vergos, however, is distinguishable. An
employee who claimed he had been sexually harassed at work brought a civil rights
action against, among others, the manager who exercised discretion in hearing,
processing, and deciding his grievances. (Id. at p. 1396.)4 The appellate court explained
that because one of the plaintiff’s causes of action arose from the manager’s denial of his
4
The manager in Vergos had reviewed the plaintiff’s grievances pursuant to
personnel policies established by the Regents of the University of California, “which is a
constitutional entity having quasi-judicial powers. [Citations.] The Regents ‘have
rulemaking and policymaking power in regard to the University; their policies and
procedures have the force and effect of statute.’ [Citation.] Statutory hearing procedures
qualify as official proceedings authorized by law for [section] 425.16 purposes.
[Citation.]” (Vergos, supra, 146 Cal.App.4th at p. 1396.)
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grievances, the manager was entitled to relief under section 425.16, subdivision (e)(2)
(a statement or writing made in connection with an issue under consideration or review in
an official proceeding authorized by law), since hearing officers in an official proceeding
deserve the protection of the anti-SLAPP statute. (Vergos, at pp. 1399-1400.)
Although his argument is not particularly clear, McCandless seems to believe that
Vergos supports his position because, as a licensed attorney, he is an officer of the court,
which means that his situation is analogous to the manager who decided the plaintiff’s
grievances in Vergos. Unlike in Vergos, however, Powers’s action plainly did not arise
from a statement made by McCandless in an official proceeding. Vergos is wholly
inapplicable to the circumstances of this case, in which Powers’s claims are based on
alleged sexual harassment in a private law office and retaliation by McCandless for
complaining about the harassment.5
In this case, as in World Financial Group and Rivero, the statements McCandless
alleges constituted protected activity related solely to his supervision of two of his
employees, Powers and Hodges. The fact that McCandless is a lawyer and that his
alleged statements led in part to the filing of an action alleging sexual harassment, sex
discrimination, and retaliation may touch on matters of “ ‘ “a broad and amorphous
public interest.” ’ ” (World Financial Group, supra, 172 Cal.App.4th at p. 1570.) These
circumstances cannot, however, transform the personal dispute between McCandless and
Powers into a matter subject to the anti-SLAPP statute. (See Rivero, supra, 105
Cal.App.4th at p. 924.) The trial court correctly found that McCandless did not satisfy
5
McCandless also cites Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257,
apparently for the same proposition: that his role as an attorney somehow transforms his
conversation with Powers into a protected activity. (See id. at pp. 261-262 [in sex
discrimination action, because “plaintiff’s allegations were based on communications and
statements defendants made ‘in connection with an issue under consideration or review
by a . . . judicial body . . .’ (§ 425.16, subd. (e)(2)), namely defendants’ attorney selection
and litigation funding decisions” on behalf of a prepaid legal services plan, plaintiff’s
cause of action was based on protected activities].) Here, in contrast, McCandless’s
statements were not made in connection with any issue under consideration by a judicial
body.
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his burden of showing that Powers’s claims arose from speech or conduct “in furtherance
of the exercise of the constitutional right of . . . free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e)(4); see World Financial Group,
at pp. 1568, 1570.)
Because McCandless has not made the requisite showing pursuant to the first step
of the anti-SLAPP analysis, we do not reach step two: whether Powers has demonstrated
a probability of prevailing on her claim. (See Hecimovich, supra, 203 Cal.App.4th at
p. 463.)
DISPOSITION
The order denying the motion to strike the complaint pursuant to section 425.16 is
affirmed. Costs on appeal are awarded to plaintiff Deborah Powers.
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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
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