Filed 7/29/21 Doe v. Lane Fertility Institute etc. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
JANE DOE,
Plaintiff and Respondent,
A162094
v.
LANE FERTILITY INSTITUTE (Marin County
FOR EDUCATION AND Super. Ct. No. CIV 2002299)
RESEARCH, INC., et al.,
Defendants and Appellants.
Defendants Lane Fertility Institute for Education and Research, Inc.
and Danielle Lane, M.D., Inc., a Professional Corporation, appeal from the
trial court’s order denying their special motion to strike the first amended
complaint of plaintiff Jane Doe, pursuant to the provisions of California’s
anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code
Civ. Proc, § 425.16).1 Defendants contend the court erred in denying their
special motion to strike because (1) the entirety of plaintiff’s complaint is
based on defendants’ protected activity, and (2) plaintiff did not show a
probability of prevailing on the merits. We shall affirm the trial court’s
order.
All statutory references are to the Code of Civil Procedure unless
1
otherwise indicated.
1
BACKGROUND
Defendants’ business is an alternative reproductive technology (ART)
program pursuant to the federal Fertility Clinic Success Rate and
Certification Act of 1992 (42 U.S.C. § 263a, et seq.). Defendants are required
to submit certain data annually to the Department of Health and Human
Services, through the Centers for Disease Control (CDC) in order to keep
their certification. (See 42 U.S.C. § 263a, subd. (d)(1)(D).) The data
defendants must report includes patient demographics, patient obstetrical
and medical history, parental infertility diagnosis, clinical parameters of the
ART procedure, and information about resulting pregnancies and births.
They report this information to the Society of Assisted Reproductive
Technologies (SART), which then transmits the information to the National
ART Surveillance System, which ultimately delivers it to the CDC. (See
42 U.S.C. § 263a-1.) The CDC annually publishes the reported pregnancy
success rates reported by ART programs. (42 U.S.C. § 263a-5.)
In September 2018, plaintiff contacted defendants to engage them in
the provision of fertility-related medical services. At that time, defendants
provided plaintiff with a written privacy policy, which stated that defendants
would contact her only through the means she had specifically designated in
writing. Plaintiff designated a private email address as her preferred method
of contact, although she also communicated with defendants through a
personal work email address.
On November 14, 2019, instead of using plaintiff’s designated email
address or her personal work email address, defendants sent an email
containing personal and sensitive medical information to a general work
group email address, g_____@google.com, which goes to plaintiff’s entire work
2
team of nine people at Google and which is monitored by Google’s security,
privacy, and practices teams. The email stated:
“Hello [plaintiff],
“I had emailed you a few weeks ago regarding SART. On behalf of
Lane Fertility Institute in regard to your embryo transfer on 12/6/2018 [sic].
I am in the process of reporting data on the success rate of our clinic to the
national database, called SART. SART is an organization that reports data
regarding IVF and assisted reproductive technology so that it is readily
available to patients and clinicians.
“Please send me the following information, if you would be so kind: the
outcome of the pregnancy (live birth/stillbirth/miscarriage), what method of
delivery occurred (vaginal or cesarean), date of birth (or miscarriage), number
of fetuses born, gender, and weight.2
“Thanks again for choosing Lane Fertility Institute.”
Plaintiff had not informed any of the recipients of the email about the
procedures defendants had performed. Since defendants’ disclosure of her
personal medical information in the work group email, plaintiff suffered
anxiety, mental anguish, and stress about the revelation, and had not
returned to her workplace.
On July 7, 2020, plaintiff filed her original complaint in this matter,
asserting five causes of action, including violation of the Consumer Legal
Remedies Act (Civ. Code, § 1750 et seq.); violation of the Confidentiality of
2
Defendants sent this email to the general work group email address at
Google after receiving an automated response to a previous similar message
they had sent to plaintiff’s personal work email address. The automated
response from plaintiff’s personal work email had stated in the subject line:
“Out of Office: Maternity Leave.” The body of the email stated: “Thank you
for your email! I’m on maternity leave. For immediate assistance, please
contact g_____@google.com.”
3
Medical Information Act (Civ. Code, § 56 et seq.); violation of the
constitutional right to privacy (Cal. Const., art. I, § 1); violation of the unfair
competition law (Bus. & Prof. Code, § 17200 et seq.); and negligence
(negligence per se).
On October 14, 2020, plaintiff filed the operative first amended
complaint, adding a cause of action for public disclosure of private fact.
On November 13, 2020, defendants filed a special motion to strike,
pursuant to section 425.16.
On January 22, 2021, the trial court denied the motion to strike.
On February 17, 2021, defendants filed a notice of appeal.
DISCUSSION
I. Anti-SLAPP Law and Standard of Review
Subdivision (b)(1) of section 425.16 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.” As relevant here, subdivision (e) of section 425.16 provides: “As used
in this section, ‘act in furtherance of a person’s right to petition or free speech
under the United States of 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 . . . .”
4
“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.]
‘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.’ [Citation.]
“Finally, and as subdivision (a) of section 425.16 expressly mandates,
the section ‘shall be construed broadly.’ ” (Hecimovich v. Encinal School
Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463; see also Kibler
v. Northern Inyo County Local Hospital District (2006) 39 Cal.4th 192, 197;
Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, Inc.
(2019) 32 Cal.App.5th 458, 466.)
We review de novo a trial court’s ruling granting or denying an anti-
SLAPP motion. (Hecimovich v. Encinal School Parent Teacher Organization,
supra, 191 Cal.App.4th at p. 464.)
5
Here, because the trial court found that defendants had failed to carry
their initial burden, we are concerned solely with the first step of the analysis
discussed in section 425.16. (See § 426.16, subds. (b)(1), (e)(1), (e)(2); Wilson
v. Cable News Network (2019) 7 Cal.5th 871, 884.)
II. Legal Analysis
The trial court found that defendants had “not shown that there was
any current or anticipated ‘official proceeding’ triggering the application of
[section] 425.16 [subdivision] (e)(1) or (2).” The court explained that to fall
within the ambit of section 425.16, subdivision (e)(1), “the communication
must be made in or ‘before’ the official proceeding. To fall within subsection
(e)(2), the communication must generally concern an issue under review or
determine a disputed matter. [Citations.] [¶] Defendants do not identify any
current or anticipated official proceeding or investigation to which the
November 14th email is connected in any way. Rather, the email appears to
have been sent to collect information for the routine reporting of information
to the Center for Disease Control through SART. The fact that defendants
are engaging in activity to comply with the law does not transform their
conduct into an official proceeding required [sic] by law. (Olaes v. Nationwide
Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1508–1509.)” We agree with
the trial court that defendants have failed to demonstrate that their email to
plaintiff constituted protected activity under section 425.16, subdivision (e)(1)
or (e)(2).
“[P]lainly read,” section 425.16—including subdivisions (e)(1) and
(e)(2)—“encompasses any cause of action against a person arising from any
statement or writing made in, or in connection with an issue under
consideration or review by, an official proceeding or body.” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.) “Not all
6
writings submitted to a government agency for action fall within the ambit of
the anti-SLAPP statute.” (A.F. Brown Electrical Contractor, Inc. v. Rhino
Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1129.)
First, with respect to subdivision (e)(1) of section 425.16, the fact that
defendants were attempting to obtain information from plaintiff in
preparation for their annual reporting of information to the CDC does not
transform their conduct in emailing plaintiff’s personal medical information
to her work group into a statement made in connection with an anticipated or
existing “official proceeding authorized by law.” (§ 426.16, subd. (e)(1);
cf. Olaes v. Nationwide Mutual Insurance Co., supra, 135 Cal.App.4th at
p. 1508 [defendant’s duty under section 12940 of the Government Code to
take all reasonable steps necessary to prevent harassment in its workplace
did “not automatically transform a private employer into an entity
conducting ‘official’ proceedings” when it investigated sexual harassment
complaints against plaintiff]; Blackburn v. Brady (2004) 116 Cal.App.4th 670,
677 [“The ministerial event of a sheriff’s sale or auction simply does not
concern an issue under review or determine some disputed matter as
contemplated under the anti-SLAPP law”].) Instead, as the trial court found,
defendants engaged in conduct related to the routine statutory reporting
requirement applicable to all fertility clinics, which the CDC, as part of its
ministerial duties, publishes.
Second, “[s]ection 425.16, subdivision (e)(2) protects only those ‘written
or oral statement[s] or writing[s] made in connection with an issue under
consideration or review.’ (Italics added.) The subdivision thus appears to
contemplate an ongoing—or, at the very least, immediately pending—official
proceeding. Conversely, if an issue is not presently ‘under consideration or
review’ by such authorized bodies, then no expression—even if related to that
7
issue—could be ‘made in connection with an issue under consideration or
review.’ (§ 425.16, subd. (e)(2).)” (Rand Resources, LLC v. City of Carson
(2019) 6 Cal.5th 610, 627 (Rand); see also Maranatha Corrections, LLC v.
Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075,
1085 [“As used in section 425.16[, subdivision] (e)(2), a matter is ‘under
consideration’ if it ‘is one kept “before the mind,” given “attentive thought,
reflection, meditation” [and a] matter under review is one subject to “an
inspection, examination” ’ ”].)
Here, the statements in defendants’ email were not made “in
connection with an issue under consideration or review” by the Department
of Health and Human Services or the CDC. (§ 425.16, subd. (e)(2).) Again,
the email in question contained a request for information that defendants
collected for their annual reporting of data to the federal government, as is
required of all ART programs. (See 42 U.S.C. § 263a-1.) That the reporting
is required for defendants’ annual renewal of certification (42 U.S.C.
§ 263a(d)(1)(D)) and that failure to comply with the reporting requirements
could possibly lead to future action by the CDC (42 U.S.C. § 263a-4) does not
transform the email sent to plaintiff’s work group into a writing made in
connection with an issue presently under consideration or review by a
governmental entity. (§ 425.16, subd. (e)(2); see Rand, supra, 6 Cal.5th at
p. 627 [“ ‘[u]nder consideration or review’ does not mean any issue a
[governmental] body may conceivably decide to take up months or years in
the future”]; compare Braun v. Chronicle Publishing Co. (1997) 52
Cal.App.4th 1036, 1048 [newspaper reporting on state auditor’s investigative
audit constituted statements made on issues under consideration or review in
an official proceeding].)
8
Defendants discuss numerous cases in which appellate courts found
that a defendant’s conduct constituted protected activity under subdivision
(e)(1) and/or (e)(2), all of which are distinguishable from the present case.
(See, e.g., Kibler v. Northern Inyo County Local Hospital District, supra,
39 Cal.4th at pp. 196–197 [hospital’s peer review proceedings qualified as an
official proceeding because procedure was required under Business and
Professions Code and because a hospital’s decision resulting from such
proceedings was subject to judicial review by administrative mandate];
Comstock v. Aber (2012) 212 Cal.App.4th 931, 941–945 [in defamation action,
defendant’s reporting of information to police, nurse, and employer’s manager
was protected activity because it was related to an investigation or other
official proceeding and/or statements prior to litigation]; Maranatha
Corrections, LLC v. Department of Corrections and Rehabilitation, supra, 158
Cal.App.4th at pp. 1080–1082, 1085 [where a private firm sued an executive
branch department based on alleged defamatory statements in publicized
letter terminating firm’s contract following an ongoing dispute between
parties about firm’s right to retain revenue from inmate telephone calls at
California correctional facilities, statements were protected under section
425.16, subdivision (e)(2) because those statements related to issues under
consideration by a governmental body, i.e., by that executive branch
department]; Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1396 [state
university employee’s lawsuit against his manager for denying his
administrative grievances related to alleged sexual harassment was based on
protected activity where manager had reviewed plaintiff’s grievances
pursuant to personnel policies of Regents of University of California, which is
a constitutional entity with quasi-judicial powers]; Dove Audio, Inc. v.
Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784 [defendants’ pre-
9
litigation communications to other private citizens preparatory to filing a
complaint to Attorney General seeking an investigation was protected speech
“made in connection with an official proceeding authorized by law”]; Mindys
Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F.3d 590, 596 [because
defendant’s “filing of a trademark application [was] a formal communication
to the [United States Patent and Trademark Office] seeking official action in
a process governed by statute . . . , the application [was] protected by the
anti-SLAPP statute as a ‘writing made before . . . [an] executive [or] . . . other
official proceeding authorized by law’ ” under subd. (e)(1) of section 425.16].)
In all of the cited cases, the protected statements were made in
anticipation of, or during an official proceeding or were related to matters
actively under consideration by a governmental body. (See § 425.16, subd.
(e)(1)-(2).) Here, on the other hand, defendants were merely attempting to
gather information for their annual report to the CDC regarding their ART
program when they sent the email to plaintiff’s work group. The statements
in the email were not protected speech related to any official proceeding,
either anticipated or in progress, for purposes of section 425.16, subdivision
(e)(1). (See A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply,
Inc., supra, 137 Cal.App.4th at p. 1129.) Nor was there any issue “presently
‘under consideration or review’ ” by a governmental body that related to the
statements in the email, for purposes of section 425.16, subdivision (e)(2).
(Rand, supra, 6 Cal.5th at p. 627.)
In short, defendants have not satisfied their initial burden of
demonstrating that plaintiff’s lawsuit was brought primarily to chill their
“valid exercise of the constitutional rights of freedom of speech and petition
10
for the redress of grievances.” (§ 425.16, subd. (a).) The trial court’s order
denying defendants’ anti-SLAPP motion must therefore be affirmed.3
DISPOSITION
The order denying defendants’ special motion to strike plaintiff’s first
amended complaint is affirmed. Costs on appeal are awarded to plaintiff.
3
Having found that the court properly denied defendants’ anti-SLAPP
motion on the grounds discussed in this opinion, we need not address the
court’s second basis for denying the motion: that plaintiff’s lawsuit arose
from the harm caused by defendants’ allegedly unlawful disclosure of
plaintiff’s private medical information to her work colleagues, rather than
from any alleged impropriety in the contents of the email. (See, e.g., City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“the statutory phrase ‘cause of
action . . . arising from’ ” in subd. (b)(1) of § 426.16 “means simply that the
defendant’s act underlying the plaintiff’s cause of action must itself have been
an act in furtherance of the right of petition or free speech”].)
11
_________________________
KLINE, P.J.
WE CONCUR:
_________________________
RICHMAN, J.
_________________________
STEWART, J.
Doe v. Lane Fertility Institute For Education and Research, Inc., et al.
(A162094)
12