Lillie v. Cal. Institute of Technology CA2/1 ( 2021 )

Filed 4/23/21 Lillie v. Cal. Institute of Technology CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
DAVID LILLIE, B302941
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19BBCV00346)
v.
CALIFORNIA INSTITUTE OF
TECHNOLOGY,
Defendant and Respondent.
APPEAL from an order and a judgment of the Superior
Court of Los Angeles County, John J. Kralik, Judge. Reversed.
Law Office of Jan T. Aune and Jan T. Aune for Plaintiff and
Appellant.
DLA Piper, Holly R. Lake and Ryan Matthew Estes for
Defendant and Respondent.
____________________________
Defendant and respondent California Institute of
Technology (Caltech) manages the Jet Propulsion Laboratory
(JPL) pursuant to a contract with the National Aeronautics and
Space Administration (NASA). In 2014, plaintiff and appellant
David Lillie (Lillie), who at that time was an employee of
ManTech International Corporation (ManTech), worked at JPL
in accordance with a contractual arrangement between Caltech
and ManTech. Lillie claims that Caltech personnel provided him
with access to a third-party government contractor’s proprietary
data to facilitate his completion of assigned tasks. According to
Lillie, he later discovered that he lacked authorization to access
this data and that Caltech personnel had attempted to conceal
Lillie’s use of the data.
Lillie claims to have reported these events to Caltech’s
Ethics Department, and that he later relayed them to
Congresswoman Judy Chu’s office. ManTech subsequently
terminated Lillie’s employment. Next, at a meeting arranged by
Congresswoman Chu’s office, Lillie alleges he returned to Caltech
the only copy of the third-party proprietary data that he had in
his possession. Nonetheless, shortly after he returned the data,
Caltech personnel apparently told ManTech employees (among
other things) that Lillie retained this data in violation of his
nondisclosure agreement. Lillie maintains that ManTech
thereafter changed his rehire eligibility status from eligible to
ineligible in part because of Caltech’s statements.
Lillie sued Caltech for defamation, negligence, intentional
infliction of emotional distress, negligent infliction of emotional
distress, intentional misrepresentation, and negligent
misrepresentation. Caltech responded by filing a special motion
to strike Lillie’s operative first amended complaint under Code of
2
Civil Procedure section 425.16,1 the Strategic Lawsuit Against
Public Participation (anti-SLAPP) statute. The trial court
granted the motion and struck the entirety of Lillie’s operative
pleading. Lillie appeals that decision.
On de novo review of the trial court’s ruling, we conclude
that Caltech has failed to satisfy its burden of showing that
Lillie’s claims arose from conduct protected by the anti-SLAPP
statute. Specifically, Caltech does not show that it made the
statements that are the subject of Lillie’s claims in connection
with an issue under review or consideration by a legislative body
or any other official proceeding authorized by law (§ 425.16,
subd. (e)(2)), or that Caltech engaged in “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” (id., subd. (e)(4)).
Accordingly, we reverse without addressing whether Lillie
established a probability of prevailing on his claims.
FACTUAL AND PROCEDURAL BACKGROUND2
We summarize only those facts relevant to this appeal.
1Undesignated statutory citations are to the Code of Civil
Procedure.
2 We base much of this part on the operative first amended
complaint and undisputed portions of the parties’ briefing and
the trial court’s decision. (See § 425.16, subd. (b)(2) [providing
that “the court shall consider the pleadings[ ] and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based” when ruling on an anti-SLAPP motion]; Artal v.
Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
3
Caltech is a research university in Southern California.
JPL is a federally-funded research and development center,
which is managed by Caltech pursuant to a contract with NASA.
In 2014, Caltech and ManTech had a contractual arrangement
whereby ManTech provided Caltech with engineering analysis
and software reliability support services.
In July 2014, Lillie was a ManTech employee who ManTech
assigned to JPL pursuant to ManTech’s contract with Caltech.
Lillie avers that in September 2014, Caltech personnel provided
him with access to a third-party government contractor’s3
“MathCAD files” in order to assist him in completing his assigned
tasks. Lillie alleges that he created a CD-ROM copy of the
MathCAD files so he could work at home, and that he later
prepared a technical report that he forwarded to a Caltech
employee. According to Lillie, this Caltech employee later asked
Lillie to delete the references to the MathCAD files from the
technical report, but Lillie refused to do so.
statements therein as admissions against the party.
[Citations.]’ ”]; Baxter v. State Teachers’ Retirement System (2017)
18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts
provided in the trial court’s ruling].) Of particular note, Caltech
asserts that actions Lillie claims JPL personnel took are actually
attributable to Caltech’s employees, including the allegedly
defamatory statements of which Lillie complains. We proceed
on this assumption as well because Lillie does not dispute it in
his reply. (See Rudick v. State Bd. of Optometry (2019)
41 Cal.App.5th 77, 89–90 [concluding that the appellants made
an implicit concession by “failing to respond in their reply brief to
the [respondent’s] argument on th[at] point”].)
3 Lillie claims that this third-party government contractor
is Lockheed Martin.
4
On October 7, 2014, Lillie reported to Caltech’s Ethics
Department that the aforesaid Caltech employee was covering up
that Lillie had used the MathCAD files. Lillie contends that it
was inappropriate for the Caltech employee to tell him not to
report that he had used the MathCAD files where the third-party
government contractor to whom the files belonged (Lockheed
Martin) did not permit him to access them.
Later in October 2014, ManTech placed Lillie on furlough.
Although Lillie returned to work full-time in November 2014,
ManTech placed him on furlough again in December 2014.
Also in December 2014, Lillie informed Congresswoman
Judy Chu’s office of his complaint to Caltech’s Ethics
Department. Caltech avers that “[o]n January 7, 2015,
Congresswoman Judy Chu’s office advised Caltech that Lillie
contacted the office and expressed concern about proprietary
information which he accessed while he was working for
ManTech on a project for Caltech.”
ManTech terminated Lillie’s employment on
February 6, 2015.
On April 13, 2015, at a meeting arranged by
Congresswoman Chu’s office, Lillie returned a CD-ROM
containing the MathCAD files to Caltech’s Ethics Department.
Lillie avers that Caltech thereafter made five defamatory
statements to ManTech concerning Lillie, each of which is
summarized below.
First, on April 13, 2015, after Lillie returned the CD-ROM
containing the MathCAD files, a Caltech subcontracts manager
stated the following in an e-mail to a ManTech employee:
Caltech had “been made aware by David Lillie that he is in
5
possession of third party and ITAR controlled data[4] which he
took from JPL.”
Second, in the next sentence of this April 13, 2015 e-mail,
the Caltech subcontracts manager further stated: “This action is
in violation of the terms of JPL subcontract number 1384568 and
the non-disclosure agreement (NDA) signed by Mr. Lillie.”
Third, later that day, the ManTech employee who received
the April 13, 2015 e-mail forwarded this correspondence to
another Caltech employee and stated, “I’m assuming that you are
aware of this situation,” and, on April 14, 2015, this second
Caltech employee responded in pertinent part: “Lillie is playing
really dirty.”
Fourth, on April 15, 2015, the Caltech subcontracts
manager sent another e-mail to the ManTech employee who
received the April 13, 2015 e-mail, wherein the subcontracts
manager stated: (1) Caltech’s Ethics and Human Resources
Departments had requested that the subcontracts manager send
that April 13, 2015 e-mail to ManTech, and (2) the subcontracts
manager did “not have much insight on the issue other than what
is in the email [she had sent on April 13, 2015] and the fact that
David Lillie is disgruntled.”
4 Neither party defines the term “ITAR controlled data.”
The Department of State’s regulations define “ITAR” as
“International Traffic in Arms Regulations,” which govern the
“exports of defense articles and defense services . . . .” (See
Amendment to the International Traffic in Arms Regulations:
Changes to Authorized Officials and the UK Defense Trade
Treaty Exemption, 79 Fed.Reg. 8082, 8084 (Feb. 11, 2014).)
We take judicial notice of this regulation. (Evid. Code §§ 452,
subds. (b)–(c), 459.)
6
Finally, on April 16, 2015, the ManTech employee who
received the foregoing e-mails from Caltech personnel sent an
e-mail to a ManTech contracts manager concerning a telephone
conference these two ManTech employees had with the Caltech
subcontracts manager. The e-mail stated: (1) Lillie “has copies”
of “3rd party proprietary” and “ITAR sensitive data” on “his own
personal computer”; (2) Lillie “appears to be a disgruntled
employee”; and (3) Lillie “thought the CD would substantiate his
claims about inappropriate behavior by ManTech” but “[h]e has
been discredited by his own actions.” The e-mail did not
explicitly clarify whether, and if so, to what extent, Caltech’s
subcontracts manager supplied this information to the
two ManTech employees during the telephone conference.
Lillie claims that in 2018, he discovered Caltech’s allegedly
defamatory statements in connection with a federal False Claims
Act lawsuit he filed against ManTech. Lillie further maintains
that in September 2018, he learned in the federal action that on
or about April 23, 2015, ManTech had changed his rehire
eligibility from eligible to ineligible in part because of Caltech’s
April 2015 statements.
On April 24, 2019, Lillie commenced the instant action
against Caltech. On August 5, 2019, Lillie filed the operative
first amended complaint against Caltech, alleging the
following six causes of action: (1) defamation, (2) negligence,
(3) intentional infliction of emotional distress, (4) negligent
infliction of emotional distress, (5) negligent misrepresentation,
and (6) intentional misrepresentation.
On August 16, 2019, Caltech moved to strike the entirety of
the first amended complaint under the anti-SLAPP statute,
asserting that Lillie’s claims arise from activity protected under
7
section 425.16, subdivisions (e)(2) and (e)(3), and that he could
not establish a probability of prevailing on his claims. Lillie
opposed the motion on October 28, 2019, and Caltech filed its
reply on November 1, 2019.
On November 8, 2019, the trial court heard Caltech’s
motion and issued a written ruling granting it. The court agreed
with Caltech that Lillie’s claims fall within the scope of
section 425.16, subdivision (e)(2), given that “the alleged
statements made between Caltech and ManTech regarding
[Lillie] were made in connection with an internal investigation
that took place as a result of Congresswoman Chu’s request.”
Conversely, the court found that section 425.16, subdivision (e)(3)
was inapplicable because Caltech did not make its statements in
a place open to the public or a public forum, and they were not
made in connection with an issue of public interest.
Because the trial court found Caltech had established that
Lillie’s claims arose from activity protected by the anti-SLAPP
statute, it assessed whether he had demonstrated a probability of
prevailing on his claims. The lower court struck Lillie’s
defamation cause of action on the following grounds: Lillie had
failed to establish the falsity of Caltech’s assertion that Lillie
violated a nondisclosure agreement; Caltech’s claims that he was
disgruntled were nonactionable opinions; and all of the allegedly
defamatory statements were privileged under Civil Code
section 47, subdivision (c) because Caltech made them in the
context of its “company-contractor relationship” with ManTech
and Lillie did not show that Caltech acted with malice.5
5 Civil Code section 47, subdivision (c) provides in
pertinent part: “A privileged publication or broadcast is one
made: [¶] . . . [¶] (c) In a communication, without malice, to a
8
Next, the trial court found Lillie’s negligence cause of
action failed because Lillie did not demonstrate that Caltech
owed him a duty of care and Caltech’s statements to ManTech
were privileged under Civil Code section 47, subdivision (c). The
court also struck Lillie’s cause of action for negligent infliction of
emotional distress because it was a species of negligence (a cause
of action the lower court had already rejected), and Lillie did not
clarify whether he brought a claim under a bystander or direct
victim theory.
Further, the trial court struck Lillie’s intentional infliction
of emotional distress claim because he did not show he suffered
severe emotional distress, Caltech’s statements were privileged,
and Caltech did not make them with the intent of causing Lillie
emotional distress. Lastly, the court concluded that Lillie’s
intentional and negligent misrepresentation causes of action
failed because he did not show that Caltech intended to defraud
ManTech and Caltech’s statements were privileged under Civil
Code section 47, subdivision (c).
On November 25, 2019, the trial court entered judgment in
favor of Caltech, which stated that Caltech was entitled to
recover its fees and costs pursuant to section 425.16,
subdivision (c).
person interested therein, (1) by one who is also interested, or
(2) by one who stands in such a relation to the person interested
as to afford a reasonable ground for supposing the motive for the
communication to be innocent, or (3) who is requested by the
person interested to give the information.” (Civ. Code, § 47,
subd. (c).)
9
On December 10, 2019, Lillie filed a notice of appeal.6
DISCUSSION
The anti-SLAPP statute 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.” (§ 425.16, subd. (b)(1).)
For the purposes of the anti-SLAPP statute, the phrase
“ ‘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,
6 Although Lillie’s notice of appeal is somewhat unclear as
to whether he intended to appeal the judgment (and not simply
the order granting the anti-SLAPP motion), the parties treat the
notice as if it encompasses both the trial court’s ruling and the
resulting judgment. Under these circumstances, we deem the
notice of appeal to cover the order and the judgment. (See
K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882
[“ ‘ “[N]otices of appeal are to be liberally construed so as to
protect the right of appeal if it is reasonably clear what [the]
appellant was trying to appeal from, and where the respondent
could not possibly have been misled or prejudiced.” ’
[Citations.]”.)
10
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.” (See § 425.16,
subd. (e).)
Resolution of an anti-SLAPP motion involves a two-step
procedure. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).) “First, the
defendant must establish that the challenged claim arises from
activity protected by section 425.16.” (Baral v. Schnitt (2016)
1 Cal.5th 376, 384 (Baral).) “To determine whether a claim
arises from protected activity, courts must ‘consider the elements
of the challenged claim and what actions by the defendant supply
those elements and consequently form the basis for liability.’
[Citation.] Courts then must evaluate whether the defendant has
shown any of these actions fall within one or more of the four
categories of ‘ “act[s]” ’ protected by the anti-SLAPP statute.
[Citations.]” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884 (Wilson).)
If the defendant discharges that obligation, then “the
burden shifts to the plaintiff to demonstrate that each challenged
claim based on protected activity is legally sufficient and
factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) On
the other hand, the court should deny the motion without
addressing that second step if the defendant fails to demonstrate
that the claim arises from protected activity. (Symmonds v.
Mahoney (2019) 31 Cal.App.5th 1096, 1103–1104.)
11
“We review de novo the grant or denial of an anti-SLAPP
motion. [Citation.] We exercise independent judgment in
determining whether, based on our own review of the record, the
challenged claims arise from protected activity. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based.” (Park, supra, 2 Cal.5th
at p. 1067.)
In this case, the parties do not dispute that Lillie’s claims
arise from the April 2015 e-mail and telephonic conversations
between Caltech and ManTech described in our Factual and
Procedural Background, ante. Caltech contends this conduct is
protected activity under section 425.16, subdivisions (e)(2) and
(e)(4).7 For the reasons discussed below, we conclude that
Caltech has failed to demonstrate that its conduct falls within the
scope of either provision. We thus reverse the trial court’s ruling
and the judgment entered thereafter without addressing the
merits of Lillie’s claims.
A. Caltech Fails to Establish that Section 425.16,
Subdivision (e)(2) Applies
“[A]ny 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
7 Although Caltech’s memorandum in support of its motion
did not specify whether it was relying on section 425.16,
subdivision (e)(3) or (e)(4), Caltech’s reply brief clarified that it
sought the protection of subdivision (e)(3), and the trial court
rejected Caltech’s attempt to invoke that provision. On appeal,
Caltech abandons its argument that section 425.16,
subdivision (e)(3) applies, and instead claims that its conduct is
protected by subdivision (e)(4).
12
proceeding authorized by law” is protected by the anti-SLAPP
statute. (See § 425.16, subd. (e)(2).) During the proceedings
below, the trial court agreed with Caltech that “the alleged
statements were made in connection with an issue under
consideration by an official proceeding authorized by law”
because they “were made in connection with an internal
investigation that took place as a result of Congresswoman Chu’s
request.”
Caltech reasserts this contention on appeal, claiming that
its “discussions” with ManTech, “in the course of an internal
investigation for NASA’s JPL, conducted at the behest of a
Congresswoman, fall within” section 425.16, subdivision (e)(2)
and cites case authority purportedly supporting that an internal
investigation can be “an official proceeding authorized by law.”8
8 Caltech contends that Lillie waived any challenge to the
application of section 425.16, subdivision (e)(2) to the instant case
by failing to raise it in his appellate briefing. We exercise our
discretion to excuse any such waiver. We may reach an issue
omitted from an appellant’s briefing if the respondent “cannot
reasonably claim prejudice from [the panel’s] consideration of”
that issue. (See Nelsen v. Legacy Partners Residential, Inc.
(2012) 207 Cal.App.4th 1115, 1122.) Caltech was in no way
prejudiced by Lillie’s failure to address the potential applicability
of subdivision (e)(2) because Caltech anticipated this issue and
discussed it on the merits in the respondent’s brief.
In addition, the policies underlying the anti-SLAPP statute
weigh in favor of excusing any waiver. Specifically, “ ‘[t]he
Legislature . . . has provided, and California courts have
recognized, substantive and procedural limitations that protect
plaintiffs against overbroad application of the anti-SLAPP
mechanism’ ” that could otherwise “chill the exercise of protected
petitioning activity . . . .” (See Equilon Enterprises v. Consumer
13
As a preliminary matter, we observe that Caltech does not
purport to be a governmental entity whose investigations fit
within the confines of section 425.16, subdivision (e)(2). Although
Caltech represents that “JPL is a federally-funded research and
development center under NASA,” Caltech claims to be “a
globally recognized doctorate-granting research university in
Southern California” that “manages JPL pursuant to a contract
with NASA.” (Italics added.)
We further observe that Caltech does not argue the federal
government had delegated its oversight functions vis-à-vis JPL to
Caltech such that Caltech’s internal investigation constituted an
“executive” or “other official proceeding authorized by law” for the
purposes of section 425.16, subdivision (e)(2), nor did Caltech
raise any such argument below. The only evidence Caltech
presented regarding whether its investigation was an “official
proceeding authorized by law” was a declaration from one of its
ethics advisors, wherein she claimed that Caltech “opened and
conducted a thorough and robust investigation” after
Congresswoman Chu’s office contacted Caltech. She did not
attest that Caltech undertook this investigation pursuant to a
delegation of authority from NASA or any other federal agency.
We decline to address an issue not raised below or on appeal, and
in the absence of any citation to authority or a sufficient record.
Further, the trial court characterized Caltech’s affiliation
with ManTech as “a company-contractor relationship that is both
contractual and business in nature.” This description, which
Cause, Inc. (2002) 29 Cal.4th 53, 65.) One of those limitations is
the requirement that the defendant show that “the subject cause
of action is in fact one ‘arising from’ the defendant’s protected
speech or petitioning activity. [Citation.]” (See id. at p. 66.)
14
Caltech does not dispute, further suggests that Caltech is not a
governmental entity and that it functions as a private enterprise.
Additionally, the California Secretary of State’s website indicates
that Caltech filed amended and restated articles of incorporation
in 2017, which show that Caltech is a California nonprofit public
benefit corporation governed by Corporations Code section 5000
et seq.9 (See California Institute of Technology, Amended &
Restated Articles of Incorporation, at
https://businesssearch.sos.ca.gov/Document/RetrievePDF?Id=000
20720-22116005 (as of Apr.6, 2021), archived at
.) By filing this document,
Caltech has represented that it is not a governmental entity.
(Cf. Hagman v. Meher Mount Corp. (2013) 215 Cal.App.4th 82,
85, 87–89 [“We hold that a nonprofit religious organization’s
status as a ‘public benefit corporation’ does not make it a ‘public
entity’ immune from adverse possession under Civil Code
section 1007.”].)
Although it is possible that statements made in the course
of an investigation undertaken by a nongovernmental entity may
fall within the scope of section 425.16, subdivision (e)(2), any such
investigation must be authorized by law in order to trigger
anti-SLAPP protection. For instance, in Kettler v. Gould (2018)
22 Cal.App.5th 593, Division 8 of our District rejected a movant’s
9 On our own motion, we take judicial notice of the
amended and restated articles of incorporation from the
California Secretary of State’s website. (See Jones v. Goodman
(2020) 57 Cal.App.5th 521, 528, fn. 6 [noting that an appellate
court may, on its own motion, “take judicial notice of articles of
incorporation” filed with the California Secretary of State that
are available on the secretary’s website].)
15
argument that an investigation conducted by Certified Financial
Planner Board of Standards, Inc. (CFP), “a privately organized
group that promotes competent and ethical services in the
financial planning industry,” amounted to an official proceeding
authorized by law. (See Kettler, at pp. 597, 602–604.)
In so doing, the Kettler court distinguished that case from a
Supreme Court decision holding that “ ‘a hospital’s peer review
qualifies as “any other official proceeding authorized by law” ’
under subparagraph (2) of subdivision (e)” “ ‘because that
procedure is required under Business and Professions Code
section 805 et seq., governing hospital peer review proceedings’ ”
and “ ‘[a] hospital’s decisions resulting from peer review
proceedings are subject to judicial review by administrative
mandate.’ ” (See Kettler, supra, 22 Cal.App.5th at pp. 603–604,
quoting and citing Kibler v. Northern Inyo County Local Hospital
Dist. (2006) 39 Cal.4th 192, 198–203 (Kibler).) Conversely, the
CFP’s investigation possessed neither of those characteristics.10
In the instant case, Caltech does not identify any statute,
regulation, rule, or other legal authority that authorized its
“internal investigation” or subjected its findings to judicial review
by administrative mandate. Caltech also does not explain why
10 As our colleagues in Division 8 observed, “The CFP
Board is not a government entity; it is not related in any way to a
government entity; its procedures are not required by law; and its
decisions are not subject to judicial review by administrative
mandate. Accordingly, cross-defendants’ complaint to the CFP
Board is not protected activity, because it is not a statement
made before, or made in connection with an issue under
consideration or review by, an ‘official proceeding authorized by
law.’ (§ 425.16, subd. (e)(1) & (2).)” (Kettler, supra,
22 Cal.App.5th at p. 604.)
16
Congresswoman Chu’s office’s encouragement to conduct the
investigation or the fact that “Caltech manages JPL pursuant to
a contract with NASA” establishes that it engaged in activity
protected under section 425.16, subdivision (e)(2). Further,
Caltech did not remedy any of these deficiencies in its briefing
during the proceedings below. Thus, Caltech has not discharged
its obligation to show that it made statements to ManTech in
connection with an “official proceeding authorized by law.”
(See § 425.16, subd. (e)(2); cf. Bikkina v. Mahadevan (2015)
241 Cal.App.4th 70, 90 & fn. 6 (Bikkina) [concluding that the
defendant failed to show his complaints were “part of an official
proceeding authorized by law” for the purposes of Civil Code
section 47, subdivision (b) because there was no evidence that the
university’s internal complaint process was authorized by law or
reviewable by mandate].)
Caltech’s authorities do not detract from this conclusion.
In Laker v. Board of Trustees of California State University
(2019) 32 Cal.App.5th 745, the Court of Appeal observed that
section 425.16, subdivision (e)(2) “applies to proceedings required
by statute,” and found this subparagraph governed that case
because the defendant-university’s “investigation was statutorily
authorized by section 89030 of the Education Code, which
provides that the University may adopt rules or regulations for
the government of their employees . . . .” (See Laker, at p. 764,
citing Kibler, supra, 39 Cal.4th at p. 197.) As noted above,
Caltech has not identified any statute authorizing the
investigation at issue here.
Jeffra v. California State Lottery (2019) 39 Cal.App.5th 471,
is of no assistance to Caltech either. There, a plaintiff filed suit
against his former employer, the California State Lottery,
17
alleging that the “defendant engaged in a pretextual
investigation, ultimately forcing him to retire . . . .” (See Jeffra,
at p. 474.) The Court of Appeal held that the defendant’s internal
investigation constituted an “ ‘official proceeding authorized by
law’ ” for the purposes of section 425.16, subdivision (e)(2)
because it is a “state entity.” (See Jeffra, at pp. 482–483.) As
noted above, Caltech is a nonprofit public benefit corporation,
and not a governmental entity.
Lastly, Green v. Cortez (1984) 151 Cal.App.3d 1068,
does not establish that Caltech’s investigation was an official
proceeding authorized by law. The Green court held that a police
investigation initiated at the request of a city councilman
constituted a “ ‘public official proceeding’ ” covered by the fair and
true report privilege. (See Green, at pp. 1070–1071, 1073.) Green
did not hold that an internal investigation conducted by a private
entity at the suggestion of an elected official constituted an
“official proceeding authorized by law” under the anti-SLAPP
statute. (See ibid.; § 425.16, subd. (e)(2).)
At oral argument, Caltech contended for the first time that
it made the allegedly defamatory statements “in connection with
an issue under consideration or review by a legislative . . . body”
for the purposes of section 425.16, subdivision (e)(2) simply
because Congresswoman Chu’s office had encouraged Caltech to
conduct an investigation in response to Lillie’s complaint to the
Congresswoman’s office about being able to access proprietary
data while working for ManTech on a project for Caltech. At oral
argument, Caltech further argued, again for the first time, that it
was irrelevant whether that internal investigation was
“authorized by law” given that the investigation was initiated by
the office of Congresswoman Chu’s telephone call. Regardless of
18
whether this argument was timely raised, we would reject it on
the merits.
Under our Supreme Court’s interpretation of
section 425.16, subdivision (e)(2), the provision does not
encompass “any issue a legislative body may conceivably decide
to take up months or years in the future.” (See Rand Resources,
LLC v. City of Carson (2019) 6 Cal.5th 610, 627 (Rand Resources,
LLC).) Rather, “[t]he subdivision . . . appears to contemplate an
ongoing—or, at the very least, immediately pending—official
proceeding,” and “an issue . . . not presently ‘under consideration
or review’ by such authorized bodies” does not qualify. (See ibid.)
Here, Caltech has offered no evidence that Congresswoman
Chu’s office had prompted Caltech to undertake an investigation
because Lillie’s averments were under consideration or review by
Congress or a committee on which the Congresswoman serves.
Caltech’s ethics advisor merely attests that Congresswoman
Chu’s office “advised Caltech that Lillie contacted the office and
expressed concern about proprietary information which he
accessed while he was working for ManTech on a project for
Caltech.” In the absence of evidence of “an ongoing—or, at the
very least, immediately pending” legislative proceeding, we find
that Congresswoman Chu’s tangential connection to this case
does not trigger section 425.16, subdivision (e)(2). (See Rand
Resources, LLC, supra, 6 Cal.5th at p. 627.)
Indeed, under Caltech’s reasoning, every citizen complaint
that generates a telephone call from the office of the citizen’s
representative would bring statements made in the ensuing—
otherwise private—internal investigation by the recipient of that
call within the purview of the anti-SLAPP statute. Caltech cites
no authority for this proposition.
19
In sum, Caltech fails to establish that its communications
with ManTech were 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” for the
purposes of section 425.16, subdivision (e)(2).
B. Caltech Fails to Demonstrate that Its Speech Falls
Within Section 425.16, Subdivision (e)(4)’s Catchall
Provision
Section 425.16, subdivision (e)(4) provides that protected
activity includes: “[A]ny 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.” (See § 425.16, subd. (e)(4).)
Our high court recently clarified that this “catchall
provision . . . calls for a two-part analysis . . . . First, we ask
what ‘public issue or . . . issue of public interest’ the speech in
question implicates—a question we answer by looking to the
content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask
what functional relationship exists between the speech and the
public conversation about some matter of public interest.”
(See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133,
149–150 (FilmOn.com Inc.).) At the second stage of the analysis,
“we examine whether a defendant—through public or private
speech or conduct—participated in, or furthered, the discourse
that makes an issue one of public interest.” (Id. at p. 151.)
FilmOn.com Inc. further explained that “the inquiry of whether a
statement contributes to the public debate is one a court can
hardly undertake without incorporating considerations of
context—including audience, speaker, and purpose.” (Id.
at pp. 151–152.)
20
Caltech argues that its statements to ManTech are
protected activity under the catchall provision because (1) the
underlying “investigation concerned potentially improper access
to information used for space exploration missions,” (2) “[s]uch
improper access has implications to safe space exploration and
exposes NASA to threats from entities outside of the United
States,” (3) Caltech made the complained-of statements to
ManTech “to remedy the breach and prevent similar breaches in
the future,” and (4) “Lillie’s accusations . . . were significant and
important” because he reported them to Congresswoman Chu’s
office and the Congresswoman’s office asked Caltech to open an
investigation relating thereto.
Although we agree that the topic of safe space exploration
is an issue of public interest, we conclude that there is no
connection between Caltech’s statements and any public
discourse regarding this topic. (See FilmOn.com Inc., supra,
7 Cal.5th at p. 150 [“[V]irtually always, defendants succeed in
drawing a line—however tenuous—connecting their speech to an
abstract issue of public interest. [Citation.] . . . [¶] . . . [¶] [T]he
catchall provision demands ‘some degree of closeness’ between
the challenged statements and the asserted public interest.”].)
The facts of FilmOn.com Inc. and Bikkina are instructive
on this point. The defendant in FilmOn.com Inc. was a company
that monitored websites to ensure that they were appropriate
venues for its customers’ advertising. (See FilmOn.com Inc.,
supra, 7 Cal.5th at p. 141.) The defendant reported its
evaluations of websites to its clients in exchange for a fee and
their agreement to keep the reports confidential. (See ibid.) As
to the plaintiff’s websites in FilmOn.com Inc., in its confidential
reports, the defendant informed its clients that the websites
21
contained adult content (i.e., material inappropriate for children)
and lacked appropriate controls to prevent access to, and/or
distribution of, copyrighted material. (See ibid.) The plaintiff
subsequently sued the defendant for trade libel, tortious
interference with contract, tortious interference with prospective
economic advantage, and violation of California’s unfair
competition law. (Id. at p. 142.) The defendant filed an anti-
SLAPP motion, claiming that its reports were protected under
section 425.16, subdivision (e)(4). (See FilmOn.com Inc., at
pp. 142, 152.)
In analyzing whether the catchall provision protected the
defendant’s confidential reports, the Supreme Court observed
that “the various actions of [the plaintiff’s] CEO [who injected
himself into the public spotlight to discuss the legality of his
corporation’s services], or the issue of children’s exposure to
sexually explicit media content—in the abstract—seem to qualify
as issues of public interest under section 425.16,
subdivision (e)(4).” (See FilmOn.com Inc., supra, 7 Cal.5th at
pp. 152.)
The high court then “address[ed] the specific nature of [the]
defendant’s speech and its relationship to the matters of public
interest,” and concluded that the defendant’s reports did not
“further[ ] the public conversation on an issue of public interest.”
(See FilmOn.com Inc., supra, 7 Cal.5th at pp. 152–153.)
FilmOn.com Inc. reasoned that: The defendant “issue[d] its
reports not to the wider public—who may well be interested in
whether [the plaintiff] hosts content unsuitable for children or
whether its streaming platform infringes copyright—but
privately, to a coterie of paying clients”; “[t]hose clients, in turn,
use[d] the information [the defendant] provide[d] for their
22
business purposes alone”; and “[t]he information never entered
the public sphere, and the parties never intended it to.”
(See id. at p. 153.)
Bikkina also found that a defendant’s speech was not
protected by section 425.16, subdivision (e)(4). (See Bikkina,
supra, 241 Cal.App.4th at pp. 75, 81.) There, the defendant-
professor filed complaints with a university claiming that the
plaintiff had falsified data concerning carbon sequestration and
had plagiarized the defendant’s research relating to that topic.
(See id. at pp. 75–78, 82–83.) After the plaintiff graduated from
the university and began his employment at a laboratory, the
defendant told the co-authors of one of the plaintiff’s research
papers that the defendant had authorship rights thereto, and the
defendant also repeated his allegations of falsification of data and
plagiarism to employees of the laboratory. (See id. at pp. 76–79,
82.) The plaintiff thereafter sued the defendant for libel per se,
slander per se, negligence, and intentional infliction of emotional
distress. (Id. at p. 76.) The defendant filed an anti-SLAPP
motion against all the plaintiff’s claims. (See id. at pp. 76–77.)
At prong one of the analysis, the Court of Appeal rejected
the defendant’s argument that section 425.16, subdivision (e)(4)
applied because his criticism of the plaintiff’s data concerned
climate change and greenhouse gases. (See Bikkina, supra,
241 Cal.App.4th at pp. 82–85.) Specifically, the Bikkina court
concluded that the defendant’s speech was “not part of a public
debate on a broader issue of public interest” but instead
amounted to “a private campaign to discredit another scientist”
from the university. (See id. at p. 83.) The court reasoned that
the defendant made the allegedly defamatory statements to “a
small, specific audience: [u]niversity faculty and [the
23
laboratory’s] scientists”; these statements were “specific
complaints about contaminated quartz samples and plagiarism in
two papers that were not distributed to a broad audience”; and
the mere fact that “carbon sequestration is related to climate
change . . . does not convert [the defendant’s] technical objections
into a topic of public interest.”11 (See Bikkina, at pp. 82–85.)
Similarly, Caltech’s statements did not contribute to the
public debate on safe space exploration. Just as the defendants
in FilmOn.com Inc. and Bikkina communicated their allegedly
11 FilmOn.com Inc. criticized that portion of the Bikkina
decision suggesting courts should attempt to “discern[ ] a single
topic of speech” that a particular statement is really “ ‘about’ ”
(e.g., “a narrow, largely private dispute” and not “the asserted
issue of public interest”). (See FilmOn.com Inc., supra, 7 Cal.5th
at p. 149, citing Bikkina, supra, 241 Cal.App.4th at p. 85.)
FilmOn.com Inc. remarked that this methodology “is less than
satisfying; if the social media era has taught us anything, it is
that speech is rarely ‘about’ any single issue.” (See FilmOn.com
Inc., at p. 149.) FilmOn.com Inc. did not, however, disapprove of
other aspects of Bikkina. In fact, Bikkina’s analysis of the
context of the speech at issue in that case is consistent
with FilmOn.com Inc.’s approach. (See Bikkina, supra,
241 Cal.App.4th at p. 84 [“ ‘[I]t is not enough that the statement
refer to a subject of widespread public interest; the statement
must in some manner itself contribute to the public debate. . . . ’
[Citations.]”]; accord, FilmOn.com Inc., supra, 7 Cal.5th at p. 154
[“[A] court must consider whether a statement—including the
identity of its speaker, for example, or the audience sought—
contributes to or furthers the public conversation on an issue of
public interest. It is by carefully observing this wedding of
content and context that we can discern if conduct is ‘in
furtherance of’ free speech ‘in connection with’ a public issue or
issue of public interest. (§ 425.16, subd. (e)(4)).”].)
24
defamatory statements to relatively small audiences (see
FilmOn.com Inc., supra, 7 Cal.5th at p. 153; Bikkina, supra,
241 Cal.App.4th at pp. 82–83), two of Caltech’s employees made
the statements in question to only two employees of one of
Caltech’s contractors. The fact that these conversations took
place in the context of a private business relationship strongly
suggests there is no “functional relationship . . . between the
speech and the public conversation about some matter of public
interest.” (See FilmOn.com Inc., at pp. 149–150; id. at p. 153
[holding that the fact that the defendant “issues its reports not to
the wider public . . . but privately, to a coterie of paying clients”
weighed against applying the catchall provision].) Thus, the
identities of the speaker and the audience, respectively, suggest
that subdivision (e)(4) is unavailable to Caltech.
Moreover, it seems the only connection between the topic of
safe space exploration and Caltech’s statements is that Caltech
uttered them to cause ManTech to take action to prevent future
breaches (e.g., by refusing to rehire Lillie), thereby safeguarding
Caltech’s operations at JPL.12 In this respect, Caltech’s conduct
is akin to the “private campaign to discredit” the plaintiff in
Bikkina, which did not amount to conduct in furtherance of the
exercise of the right of free speech in connection with a public
12 Indeed, during the proceedings below, one of Caltech’s
ethics advisors asserted the following in a declaration: “Caltech
discussed with ManTech the status of Lillie’s potential possession
of proprietary documents in order to close the internal
investigation, allow ManTech to follow their protocol for
addressing such matters, understand how this occurred and [sic]
in order to prevent this situation from occurring again.” (Italics
added.)
25
issue or an issue of public interest for the purposes of
section 425.16, subdivision (e)(4). (See Bikkina, supra,
241 Cal.App.4th at p. 83.) Although Caltech’s conduct could
arguably advance the public’s interest in safe space exploration
by preventing future breaches of data protocols, a
“conceivabl[e] . . . indirect consequence[ ] for an issue of public
concern’ ” is insufficient to trigger subdivision (e)(4). (See Wilson,
supra, 7 Cal.5th at p. 903.) Rather, Caltech must have
“participated in, or furthered, the discourse” on safe space
exploration (see FilmOn.com Inc., supra, 7 Cal.5th at p. 151,
italics added). Telling ManTech that Lillie improperly retained
certain data in violation of a nondisclosure agreement is not part
of the public discourse about safe space exploration. There also
was no showing that Caltech intended its communications with
ManTech to further the public discourse on safe space
exploration. (See FilmOn.com Inc., at pp. 151–152 [“[T]he
inquiry of whether a statement contributes to the public debate is
one a court can hardly undertake without incorporating
considerations of context—including audience, speaker, and
purpose.”].)
In sum, although Caltech’s statements tangentially relate
to a matter of public interest, Caltech has not shown that they
“contribute[d] to the public debate” thereon. (See FilmOn.com
Inc., supra, 7 Cal.5th at p. 150.) Accordingly, we hold that
section 425.16, subdivision (e)(4)’s catchall provision does not
apply to this case.
26
DISPOSITION
The trial court’s order granting California Institute of
Technology’s special motion to strike and the judgment entered
thereafter are reversed. David Lillie is awarded his costs on
appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
27