Filed 11/10/15 Pucci v. 495 Productions CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PHILIP PUCCI, B257693
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC538086)
v.
495 PRODUCTIONS, INC., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County.
Richard L. Fruin, Jr., Judge. Affirmed.
Doll Amir & Eley, Gregory L. Doll, Ronald M. St. Marie and L. Katie Fulsher, for
Defendants and Appellants.
Hurwitz, Orihuela & Hayes and Douglas B. Hayes for Plaintiff and Respondent.
_________________________
This case is yet another example of the misuse of the special motion to strike
under Code of Civil Procedure section 425.16, the “anti-SLAPP statute.”1 After an
employee sued his former employer on various causes of action, the employer filed an
anti-SLAPP motion to strike the cause of action for defamation. The trial court denied
the motion finding no protected activity. We affirm the order on both procedural and
substantive grounds.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and appellant 495 Productions, Inc. (495 Productions) produces reality
television shows, including “Jersey Shore.” For four months from October 26, 2012,
until his termination on February 26, 2013, plaintiff and respondent Philip Pucci (Pucci)
worked as an assistant editor for 495 Productions. During this period, defendant and
appellant Ryan Abbott (Abbott) was Pucci’s supervisor.
In August and September 2013, Pucci filed with the National Labor Relations
Board (NLRB) original and amended charges against 495 Productions, alleging that
495 Productions had terminated him in retaliation for engaging in protected union
activities and had an overly broad release agreement. In November 2013, the NLRB
notified Pucci that it was dismissing all but one of his allegations. Specifically, the
NLRB had found insufficient evidence to establish that 495 Productions had violated
labor laws, but the allegation that 495 Productions maintained an overly broad release
agreement remained “subject to further proceedings.” Subsequently, 495 Productions
entered into a settlement agreement with the NLRB regarding the release agreement. The
NLRB notified Pucci in January 2014 that, in light of the settlement, it would not institute
further proceedings. Pucci had the right to appeal the NLRB’s decision until
February 11, 2014, but did not do so.
1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
SLAPP is an acronym for strategic lawsuits against public participation. An order
granting or denying a special motion to strike under section 425.16 is directly appealable.
(§§ 425.16, subd. (i), 904.1, subd. (a)(13).)
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Nearly a year after Pucci had been terminated by 495 Productions, Abbott
received a telephone call sometime between February 4 and 7, 2014, from a prospective
employer of Pucci. According to Abbott, the caller asked whether Pucci had been
employed by 495 Productions and why he had been terminated. Abbott “responded by
stating something to the effect that Plaintiff had filed a lawsuit against 495 Productions,
that Plaintiff’s claims had been dismissed and that [Abbott] did not feel comfortable
commenting any further, given the fact that attorneys were involved.”
In February 2014, Pucci filed a lawsuit against 495 Productions and Abbott and
filed a first amended complaint (FAC) in March 2014. The FAC, which is not part of the
appellate record, contains six causes of action, including a cause of action for defamation.
The FAC apparently alleges that after the settlement agreement was entered into, Abbott
began telling prospective employers that Pucci had filed a “lawsuit” against 495
Productions that had been “thrown out of court.”
495 Productions and Abbott filed a special motion to strike the defamation cause
of action. Pucci opposed the motion, which the trial court denied on the ground that “the
anti-SLAPP statute isn’t implicated by the subject conduct.” This appeal followed.
DISCUSSION
I. Inadequate Record
“‘A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. . . .’” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) This means an appellant has the burden of overcoming the presumption of
correctness by, among other things, providing an adequate appellate record demonstrating
error; failure to do so requires resolution of the issue against the appellant. (Oliveira v.
Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
495 Productions and Abbott (collectively appellants) have failed to provide an
adequate record on appeal because there is no copy of the FAC before us. Appellants are
challenging the denial of a motion they brought to strike a defamation cause of action, but
have not seen fit to provide us with the operative pleading containing the specific
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allegations of the defamatory statements. As an example of a problem this creates for us
in making a meaningful review, appellants argue in their opening brief that “Pucci’s
argument, however, was not supported by the allegations of the FAC or the evidence
offered.” Given the frequency with which appellants refer to the “allegations” of the
FAC, it is baffling that no copy of the FAC is before us.
For this reason alone, we find that appellants have failed to meet their burden on
appeal and affirm the order denying their special motion to strike. Even addressing the
merits, we still affirm.
II. Anti-SLAPP Statute
Section 425.16, subdivision (b)(1) provides: “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.” The defendant bringing the special motion to strike has the
initial burden of making a prima facie showing that the claims arise from protected
activity. If the defendant makes this showing, the burden shifts to the plaintiff to
establish a probability of prevailing on the claims. (Mundy v. Lenc (2012) 203
Cal.App.4th 1401, 1408.) An appellate court reviews de novo an order denying an anti-
SLAPP motion. (Ibid.)
Section 425.16, 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
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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.” (Italics added.)
Appellants claim that the highlighted subdivisions—(e)(2) and (4)—are implicated here.
III. No Protected Activity
A. Section 425.16, subdivision (e)(2)
In their special motion to strike, appellants argued that section 425.16, subdivision
(e)(2) applied because “Plaintiff’s defamation claim arises directly from statements made
by Defendants in connection with an official proceeding authorized by law, namely,
Plaintiff’s case before the NLRB.”
“[A] a statement is ‘in connection with’ litigation under section 425.16,
subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to
persons having some interest in the litigation.” (Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1266.) “The statute does not accord anti-SLAPP protection to suits
arising from any act having any connection, however remote, with an official proceeding.
The statements or writings in question must occur in connection with ‘an issue under
consideration or review’ in the proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th
853, 866.)
Here, Abbott’s alleged defamatory statements to Pucci’s prospective employer that
Pucci’s “lawsuit” had been “thrown out of court” were unrelated to any substantive issues
under review by the NLRB. The issues under review by the NLRB were whether 495
Productions had violated labor laws and had an overly broad release agreement. There is
no indication in the record before us that Abbott even knew much about the NLRB
proceeding or that he said anything about the issues being reviewed.
Moreover, Abbott’s statements were made to someone who was a complete
stranger to him and to the NLRB proceeding. Thus, the statements were not made to
someone with an interest in the proceeding. Appellants’ argument that statements to a
prospective employer by a former employer made without malice are immune from tort
liability under Civil Code section 47 goes to the merits of the defamation claim, not to the
first step of section 425.16 as to whether the alleged speech is constitutionally protected.
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B. Section 425.16, subdivision (e)(4)
In their special motion to strike, appellants also argued that the alleged statements
were protected under section 425.16, subdivision (e)(4), which applies to “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 definition of ‘public interest’ within the meaning of the anti-SLAPP statute
has been broadly construed 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.” (Damon v. Ocean Hills Journalism
Club (2000) 85 Cal.App.4th 468, 479.)
Appellants’ argument that section 425.16, subdivision (e)(4) applies was based
almost entirely on their claim that 495 Productions is “an entity in the public eye.”
According to appellants, 495 Productions “is the producer of the wildly popular and
controversial reality television series, Jersey Shores, which Plaintiff worked on. . . .
495 Productions continues to produce reality television and has seven (7) shows that are
either currently airing or will be airing in the near future on various cable television
networks.”
We are not so confident that appellants’ mere claim that 495 Productions is a
public entity actually makes it so. But even assuming 495 Productions is a public entity,
not every statement made by it, or its representatives, is sufficient to meet the public
interest requirement. Appellants claimed that the requirement was met because
“Defendants’ statements, although private, were made in the context of an ongoing
controversy or dispute—Plaintiff’s NLRB action against 495 Productions.” But
appellants never addressed or identified the broad segment of society affected by the
private statements made between two people. In their opening brief, appellants assert
“there is a manifest public interest involved in the alleged defamatory statement: the
outcome of the NLRB action involving 495 Productions.” But there is nothing in the
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record to support their assertion that anyone besides the parties to the action even knew,
let alone cared about, the NLRB action or its outcome.
Because we conclude that appellants did not meet their initial burden of showing
their conduct was constitutionally protected, we do not reach the second step of the anti-
SLAPP analysis of whether Pucci demonstrated a sufficient probability of prevailing on
his defamation claim.
DISPOSITION
The order denying the special motion to strike is affirmed. Pucci is entitled to
recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, Acting P. J.
ASHMANN-GERST
We concur:
_____________________________, J.
CHAVEZ
____________________________, J.
HOFFSTADT
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