Fennell v. California Republican Party

RUVOLO

Appellant David Douglas Fennell formerly worked as a volunteer for the Republican Party in California, and he claims to have uncovered various problems within that organization, including incompetence, fraud, and corruption. Fennell contends his efforts to raise these problems internally were met with wrongful acts directed at him and his supporters. As a result, Fennell sued the California Republican Party and various affiliated entities and individuals, alleging various torts and statutory causes of action. Two groups of defendants filed motions to dismiss under Code of Civil Procedure section 425.16 (section 425.16), commonly referred to as the anti-SLAPP statute. The trial court granted the motions, and Fennell appealed. We affirm.

According to Fennell's February 2010 complaint, he is a technology entrepreneur who has donated time and money to various Republican Party entities, candidates, and officials. He alleges that party officials rebuffed his offers to help them maintain local offices, make better use of computer technology, and recruit younger, more technology savvy individuals to volunteer and vote for Republican Party candidates. Fennell avers that in the course of attempting to assist the Republican Party, he discovered financial fraud, voter fraud in internal Republican Party elections, and in general, a "California Republican Party culture of corruption and incompetency, which was firmly entrenched."

Fennell charges that in the wake of his discoveries, officials of the Republican Party conspired to intimidate him through "slander, libel, threats and extortion," including "attempting to ruin [Fennell's] reputation by labeling [him] a molester, statutory rapist and thief." Specifically, Fennell complains of an email about him (the Brinkman email) sent by defendant Catherine Brinkman, whom Fennell describes as "a long time California Republican Party official and key member of" the campaign staff of 2010 Republican Party gubernatorial candidate Meg Whitman. The complaint alleges that the Brinkman email was sent shortly after Fennell announced his candidacy for the chairmanship of the California Republican Party in February 2009, and was addressed to "delegates and California Republican Party leadership."

The Brinkman email described Fennell as "new to politics, [not] clear how things work[,] and . . . a little overzealous." It went on to assert that "there are many things that remain unclear regarding [Fennell's] past and some unsavory actions that were rumored to have taken place with underage girls in party headquarters. He didn't give the SMGOP all the money. [¶] He did volunteer with McCain until there was a rumored scandal with under aged [sic] girls. [¶] . . . [W]e don't need any more sex scandals in the party at this time." The email compared the "rumored scandal" about Fennell to the "Glenn Murphy incident," in which a former Republican Party leader pleaded guilty to sexually assaulting younger male party members.

Fennell alleges that the individual defendants named in the complaint were aware of the Brinkman email and did nothing to assist him in defending himself. He claims that Republican Party officials prevented him from running for chairman of the California Republican Party; that their harassment caused him to resign as a party delegate and change his registration to independent; and that his being "falsely labeled as a statutory rapist" has injured him in his business.

Based on these general allegations, Fennell's complaint pleaded nine causes of action: (1) libel per se; (2) slander per se; (3) intimidating a candidate (Fennell) from running for office (chairman of the California Republican Party); (4) voter intimidation aimed at Fennell's supporters in his campaign for California Republican Party chairman; (5) retaliation against a whistleblower, by discharging, threatening, and harassing Fennell, and making "scandalous statements in public" about him, after he discovered and reported fraud, an unsafe work environment, and misuse of donated funds while working as a volunteer at the San Mateo County headquarters of the Republican Party; (6) extortion, in demanding that Fennell pay $10,000 in order to stop the libel and slander against him, and pay $100,000 in order to run for any Republican Party office in the future; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; and (9) conspiracy to falsely and maliciously accuse Fennell of child molestation, statutory rape, and theft.

On June 1, 2010, respondents Meg Whitman for Governor 2010, Steve Poizner for Governor 2010, Carly for California, Meg Whitman, Steve Poizner, Carly Fiorina and Mitt Romney (collectively Candidate Defendants) filed a special motion to strike Fennell's complaint under section 425.16. On June 2, 2010, respondents California Republican Party, Republican National Committee, Ron Nehring, Thomas del Beccaro, Luis Buhler, and Nathan Conrad (collectively Republican Party Defendants) filed a motion based on the same statute. Each motion was supported by several declarations. We will discuss their contents post, in analyzing whether Fennell made an adequate showing of probability of success on the merits as required by section 425.16.

Fennell opposed both of the special motions to strike. He signed his opposition memoranda under penalty of perjury, attesting that he either had personal knowledge or was informed and believed that their contents were true. However, he did not file any additional declarations or other evidence to counter the factual showing made by the Candidate Defendants and the Republican Party Defendants (collectively, respondents).

On August 3, 2010, the trial court filed orders granting both motions. On August 30, 2010, Fennell filed a timely notice of appeal from these orders.

On the same date that the trial court filed its orders granting the special motions to strike, it also filed an order quashing service of the summons and complaint on defendant McCain-Palin 2008, Inc. (McCain-Palin). Fennell's notice of appeal does not expressly indicate that he intended to appeal this order as well, but a copy of the order granting McCain-Palin's motion to quash is attached to the civil case information statement that he filed with this court, and an order granting a motion to quash is appealable. (Code Civ. Proc., § 904.1, subd. (a)(3); Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1309, fn. 1.) Thus, under the rule that notices of appeal are to be liberally construed (see Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-22), we will assume that Fennell intended to include this order in the scope of his appeal.

"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 analysis of an anti-SLAPP motion thus involves two steps. 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.)

As pertinent here, section 425.16 defines an " 'act in furtherance of a person's right of petition or free speech' " to include "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 "any other 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).) As the case law interpreting section 425.16 makes clear, neither the fact that the controversy regarding Fennell was internal to the Republican Party, nor the possibility that some of the communications at issue may not have taken place in a public forum, removes this case from the ambit of section 425.16. "Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650, disapproved on another ground by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Moreover, "protection under section 425.16 for statements in connection with a public issue or an issue of public interest is not dependent on those statements having been made in a public forum. Rather, subdivision (e)(4) applies to private communications concerning issues of public interest. [Citation.]" (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736, citing Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546.)

In determining whether a complaint arises from protected activity within the meaning of section 425.16, we examine each cause of action separately, (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1004), and engage in a two-step analysis. First, we determine whether the plaintiff's cause of action actually arose from the assertedly protected activity, and if so, then we must answer the distinct inquiry whether the activity was in fact protected. (See Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921.) If the answer to both of those questions is yes, we proceed to consider whether the plaintiff has shown that his or her cause of action has sufficient merit to be permitted to proceed. " 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.' [Citation.] We review an order granting or denying a motion to strike under section 425.16 de novo. [Citation.]" (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820, original italics.)

Appellants challenging orders granting a special motion to strike under section 425.16, like all other appellants, must support all statements of fact in their briefs with references to the record of the proceeding in the trial court. (Cal. Rules of Court, rule 8.204(a)(1)(C), (a)(2)(C); see generally Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868-869, superseded by statute on another ground as stated in Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1350-1351.) In the present case, Fennell's opening and reply briefs include many factual assertions that are not supported by any reference to the record. In deciding this appeal, we have disregarded these assertions, and have considered only those facts supported by evidence submitted to the trial court. (See Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 392, fn. 2; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1.)

Although all of Fennell's causes of action are based on the same general set of facts, they can be broken down into three categories.

The first category consists of causes of action arising from alleged statements or actions by Republican Party-affiliated entities and individuals in opposition to Fennell's status as a Republican Party volunteer, or to his efforts to be elected as a Republican Party officer. The following causes of action, numbered according to the complaint, fall squarely within this category: (3) intimidating a candidate (Fennell) from running for office (chairman of the California Republican Party); (4) voter intimidation aimed at Fennell's supporters in his campaign for California Republican Party chairman; and (5) discharging Fennell as a volunteer Republican Party worker, and threatening and harassing him, in retaliation for his whistleblowing activities regarding Republican Party activities. We will refer to these causes of action collectively as the political retaliation claims.

The second category consists of the causes of action arising from the allegedly defamatory statement in the Brinkman email regarding Fennell's activities with underage girls. Numbered to conform to the complaint, they include (1) libel per se; (2) slander per se; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; and (9) conspiracy to defame Fennell. We will refer to these causes of action as the defamation claims.

The third category consists of Fennell's sixth cause of action for extortion, in which Fennell alleges that the defendants demanded that Fennell pay $10,000 in order to stop the libel and slander against him, and pay $100,000 in order to run for party office in the future.

a. The Political Retaliation Claims. Opposing or criticizing an individual serving as a campaign volunteer, officer, candidate, or potential candidate in a major political party is plainly conduct undertaken in furtherance of the constitutional right of free speech regarding a public issue or an issue of public interest. " 'The right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. "Public discussion about the qualifications of those who hold or wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment." [Citations.]' [Citation.]" (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673.)

Fennell's briefs on appeal do not argue otherwise. Instead, he contends that respondents' actions were illegal and otherwise improper, and therefore not protected speech. However, " '[c]onduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical.' [Citations.] An exception to the use of section 425.16 applies only if a 'defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.' [Citation.]" (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285, italics omitted; see also Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285 ["if a defendant's assertedly protected constitutional activity is alleged to have been illegal and, therefore, outside the ambit of the anti-SLAPP statute, the illegality must be established as a matter of law either through the defendant's concession or because the illegality is conclusively established by the evidence presented in connection with the motion to strike"]; Flatley v. Mauro (2006) 39 Cal.4th 299, 332-333, fn. 16 [illegality exception to SLAPP protection is limited to "specific and extreme circumstances" in which assertedly protected communications are constitutionally unprotected as a matter of law].)

In response to a special motion to strike, if the defendant does not concede the illegality of the acts on which the complaint is based, the plaintiff must "demonstrate as a matter of law that the defendant's acts do not fall under section 425.16's protection" under the illegality exception. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367 (Paul for Council), italics added, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) If the plaintiff cannot do so, "then the claimed illegitimacy of defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff's burden to provide a prima facie showing of the merits of the plaintiff's case." (Paul for Council, supra, 85 Cal.App.4th at p. 1367, italics omitted.)

Fennell has not persuaded us that respondents' alleged acts were illegal as a matter of law. As respondents' briefs point out, the voter intimidation and whistleblower protection statutes on which Fennell relies apply to elections for government office and conduct by government officials, respectively, and have no application to the internal elections and other affairs of private organizations such as political parties. A political party is a private organization. A political party's county central committee does not perform any governmental functions, and membership in the committee is not a public office. (Moore v. Panish (1982) 32 Cal.3d 535, 544-546.) Thus, the political retaliation claims do not involve conduct that is illegal as a matter of law. However, because these claims also arise squarely from protected activity, Fennell was required to make a prima facie case of factual merit in order to withstand respondents' special motions to strike.

b. The Defamation Claims. Fennell focuses, on appeal, on that portion of the Brinkman email accusing him of "unsavory actions . . . with underage girls." Fennell contends that this "demonstrably false assertion" cannot be considered an "act in furtherance of free speech" (original capitalization omitted).

The law is to the contrary. Where "allegedly defamatory statements [are] made not only in connection with an issue of interest to the members of [a] particular community, but also in the context of an ongoing controversy, debate or discussion within that community [such as] a decision about future association governance [or] an election of officers[,] . . . protection of the statements at issue . . . serves the anti-SLAPP statute's purpose of encouraging participation in an ongoing controversy, debate or discussion." (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 118, fn. omitted.) It is evident from the face of Fennell's complaint that at the time the allegedly defamatory statements were made, Fennell was involved in "an ongoing controversy, debate or discussion" within the state Republican Party "community" concerning his present and potential future service within that party, including whether he could or should hold a statewide governance position in the party. Thus, Brinkman's accusations against Fennell were made in connection with an issue of public interest, and Fennell's defamation claims, like his political retaliation claims, fall within the ambit of section 425.16. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226 [alleged defamation of political consultant a matter of public interest]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 [alleged defamation of homeowners association manager deemed a matter of public interest].)

c. The Extortion Claim. As respondents point out in their briefs, there is no civil cause of action for extortion under the Penal Code sections cited in Fennell's complaint, (Pen. Code, §§ 518-527), and Fennell has failed to make any showing that the acts he labels "extortion" were illegal as a matter of law. Accordingly, the extortion claim is subject to section 425.16 for the reasons discussed ante in connection with the political retaliation claims.

To satisfy the second prong of the test for whether a cause of action is barred by section 425.16, a plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim. Put another way, the plaintiff must demonstrate that the complaint is both (1) legally sufficient and (2) supported by a prima facie showing of facts adequate to sustain a favorable judgment, if the evidence submitted by the plaintiff is credited. In making this showing, "a plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence. [Citation.]" (Hailstone v. Martinez, supra, 169 Cal.App.4th at p. 735, citing Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 614.) Moreover, if the defendant making the anti-SLAPP motion establishes that the plaintiff's causes of action are subject to valid defenses, the plaintiff cannot show a probability of success on merits. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676.)

In determining whether a plaintiff has made the requisite factual showing, the court considers the pleadings, and supporting and opposing affidavits upon which the liability or defense is based. (§ 425.16, subd. (b)(2).) However, the court neither weighs credibility nor compares the weight of the evidence. Rather, it accepts as true the evidence favorable to the plaintiff, and evaluates the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. If the plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be stricken; once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.)

Here, respondents submitted declarations in support of the special motion to strike in which they flatly denied that they had performed, participated in, or even been aware of any of the alleged wrongful activity described in Fennell's complaint. For example, both defendant Steve Poizner and the manager of Poizner's 2010 gubernatorial campaign disavowed any connection between Poizner or his campaign organization and Brinkman; denied that Poizner or anyone associated with him or his campaign participated in or even were aware of any of the acts of political retaliation and "extortion" alleged by Fennell; and denied having any knowledge of the Brinkman email, or of any other defamatory statements about Fennell, until after Fennell filed his complaint in this action. Defendants Carly Fiorina and Meg Whitman each filed a declaration to the same effect, each adding that she was not aware of even having met Brinkman before this action was filed. A declaration by the deputy counsel of the Republican National Committee also disavowed that entity's knowledge or participation in of any of the acts alleged in Fennell's complaint.

In a separate declaration, the manager of Whitman's 2010 gubernatorial campaign acknowledged that Brinkman posted (and later removed) a brief statement about her "California Dream" on a section of Whitman's website, but explained that the website permitted any member of the public to contribute such material, and Brinkman had no connection with Whitman or her campaign. In any event, Brinkman's statement, which is attached to the declaration, consisted entirely of statements about Brinkman's personal views and her support for Whitman's candidacy; it did not mention Fennell or any other individual, even by implication.

Defendant Ron Nehring and his campaign manager acknowledged that they were aware of Fennell's campaign for chairman of the California Republican Party, and that at Nehring's direction, the campaign director met with Fennell to explain to him that such a candidacy would be an "uphill battle" because he was "a complete unknown" to the delegates. However, they denied making any effort to discourage Fennell from remaining active in the Republican Party, and specifically denied having committed or directed any of the acts of defamation, political retaliation, or "extortion" alleged in the complaint.

Similarly, Luis Buhler, who was a regional vice chairman of the California Republican Party from February 2007 to February 2009, acknowledged being acquainted with Fennell while the latter was a volunteer at the party's San Mateo County office. Buhler explained that Fennell had been advised by some people "not to hold closed door meetings with youth volunteers at the headquarters," but only "as a matter of sound judgment and common sense, not as an accusation that he had done anything that was inappropriate." Nathan Conrad, also a former California Republican Party official, and Jason Scalese, who worked at the San Mateo County office, corroborated this account. Buhler stated that his own investigation of Fennell's involvement with youth volunteers had disclosed nothing in the least inappropriate, and that he had reported this to others. Buhler, Conrad, and Scalese all expressly denied that they had ever made any statements about Fennell of the sort alleged in Fennell's complaint. Buhler's declaration acknowledged that he might have advised Fennell not to run for chairman of the California Republican Party, but denied telling him he could not do so, or engaging in any of the acts of political retaliation alleged in the complaint.

In response to this evidence, Fennell did not file any declarations or other evidence, except to sign his opposition papers under penalty of perjury. His papers did not supply any specific facts or details to corroborate the allegations of the complaint, or to counter the facts attested to in the declarations filed by respondents. In short, Fennell's factual showing in opposition to the special motions to strike did not establish a probability, or even a possibility, of success on the merits. Accordingly, the trial court did not err in granting the special motions to strike.

As noted, on April 18, 2011, McCain-Palin moved to dismiss Fennell's appeal as to itself only. On May 10, 2011, this court filed an order deferring the motion to dismiss for consideration with the merits of the appeal.

As McCain-Palin points out in its motion to dismiss, it was not a party to either of the special motions to strike that gave rise to this appeal. As noted above, we construe Fennell's notice of appeal as also encompassing the order granting McCain-Palin's motion to quash service. However, his opening brief does not raise any issues regarding that order. By failing to present in his opening brief on appeal any grounds he may have had for challenging the order granting McCain-Palin's motion to quash, Fennell has forfeited his right to appeal from that order. (In re Sade C. (1996) 13 Cal.4th 952, 994; County of Kern v. Dillier (1999) 69 Cal.App.4th 1412; Robinson v. Harrington (1961) 195 Cal.App.2d 126, 127-128.)

In addition, although Fennell's reply brief indicates that it is also intended to respond to the motion to dismiss, it does not contain any argument or authority addressing McCain-Palin's motion to dismiss. Accordingly, McCain-Palin's motion to dismiss Fennell's appeal as to McCain-Palin is granted.

Fennell's appeal is DISMISSED insofar as it pertains to McCain-Palin 2008, Inc. The orders granting the special motions to strike filed by the Candidate Defendants and the Republican Party Defendants are AFFIRMED. In the interests of justice, each party shall bear its own costs on appeal.

RUVOLO, P. J.

We concur:

REARDON, J.

SEPULVEDA, J.