MEMORANDUM AND ORDER
LEO GLASSER, Senior District Judge
The plaintiff, Gary D. Gotlin, has moved this Court for an Order pursuant to Rule 58(d) Fed.R.Civ.P. that would enter judgment to be set out in a separate document as required by Rule 58(a) in the above captioned cases.
Background
On August 27, 2004, an action was filed on behalf of nine plaintiffs alleging twelve causes of action against multiple defendants and assigned docket number 04 CV 3736 ("3736"). On April 19, 2005, an action was filed on behalf of eleven other plaintiffs against virtually the same defendants, assigned docket number 05 CV 1899 ("1899"), and alleged eight of the same causes of action as in 3736. The Civil Cover Sheet to the 1899 complaint, completed by plaintiffs' counsel with the filing of the complaint, states that the case is related to 3736 previously assigned to me and so, 1899 was also assigned to me and to Magistrate Judge Mann.
Motions to dismiss 3736 pursuant to Rules 12(b)(1) and 12(b)(6) Fed.R.Civ.P. were filed by the defendants on October 19, 20, 2004. In a Memorandum and Order ("M O") dated May 3, 2005, seven of the twelve causes of action were dismissed and five were left open. Familiarity with that M O is assumed. Docket No. 27.
Motions to dismiss 1899 pursuant to Rule 12(b)(6) Fed.R.Civ.P. were filed by the defendants on July 15 and 18, 2005. In an M O dated April 28, 2006, familiarity with which is assumed, two of the counts were dismissed. The rest, sought to be dismissed on statute of limitations grounds, were denied. Docket No. 36.
Following more than three years of discovery, on September 9, 2008, motions for summary judgment pursuant to Rule 56, were filed and docketed under both 1899, Docket Nos. 151, 152 and under 3736, Docket Nos. 152, 153. Those motions were addressed to all outstanding claims and against all defendants in both actions. In an M O dated May 21, 2009, the motions were granted as to all claims against all the defendants except two. Medical malpractice and wrongful death claims by Gotlin on behalf of Caramanna Bono and for loss of consortium by her husband Giuseppe Bono against defendants Lederman and Silverman in 3736, and the medical malpractice claim of Caberti Amato and the loss of consortium claim of her spouse against those two defendants in 1899 survived the motion to dismiss. Docket No. 168.
In a letter addressed to the Court dated July 15, 2009, referencing 3736 and 1899, the plaintiffs stated their intention to appeal the orders of May 3, 2005 and May 21, 2009, and requested the Court to enter judgment against all the plaintiffs with the exception of plaintiffs Caramanna Bono and Caberti Amato. The letter also advised that the Caberti Amato plaintiffs elected to withdraw their respective actions. Docket No. 169. In an M O dated July 16, 2009, their motions to withdraw were deemed filed and were granted. The Court interpreted the plaintiffs' request for a final judgment as a motion made pursuant to Fed.R.Civ.P. 54(b) in both cases, and denied it. Familiarity with that M O is assumed. Docket No. 170 in both 3736 and 1899. A stipulation of dismissal of those actions was thereafter "so ordered" on July 24, 2009, Docket No. 173 in 1899 only, leaving Caramanna Bono the sole remaining plaintiff in 3736 and leaving no remaining plaintiffs in 1899. The 1899 case was thus appealable and no 54(b) certification by the Court was required. There were no claims undecided and no parties remaining in that action. The decision was final within the meaning of 28 U.S.C. § 1291. In that case, the losing party can appeal before the entry of the Rule 58 judgment even if it is not embodied in the separate document that Rule 58 requires if the judgment really is final within the meaning of 28 U.S.C. § 1291. Borrero v. City of Chicago, 456 F.3d 698, 700 (7th Cir. 2006), citing Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978).
In his Memorandum of Law annexed to his Reply Declaration in Support of Motion for Entry of Judgment, counsel characterized my denial of what I regarded to be as a motion pursuant to Rule 54(b) on behalf of all plaintiffs in both actions, as an "order prohibiting an appeal." Docket No. 244. That characterization is sadly misguided especially given his citation of O'Bert v. Vargo, 331 F.d 29, 41 (2d Cir. 2003), which in an expansive discussion of Rule 54(b) makes it clear that Rule 54(b) determinations are reviewable for abuse of discretion and being reviewable, are plainly not orders prohibiting a right to appeal. See also Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8-10 (1980). Particularly relevant in this regard is Litas International. Inc. v. E. Donald Shapiro 316 F.3d 113, 117-18 (2d Cir. 2003).
The trial of 3736 of Gotlin on behalf of the deceased Giuseppa Caramanna Bono and by Giuseppe Bono, her surviving spouse, against Lederman and Silverman commenced on May 11, 2010. A verdict was reached finding for the plaintiffs on the medical malpractice claims, and for the defendants on the issue of damages. The required judgment was entered on May 21, 2010. Docket No. 222.
The Notice of Appeal states the date of entry to be May 20th, which is erroneous.
A motion for a new trial pursuant to Rule 59 Fed.R.Civ.P. was thereafter filed by the plaintiffs on May 29, 2010, Docket No. 224, and cross-motions for judgments as a matter of law pursuant to Rule 50 Fed.R.Civ.P. were filed on June 4th and 8th, 2010 by Silverman and Lederman respectively. Docket Nos. 225 and 228. In an M O dated July 28, 2010, Docket No. 234, familiarity with which is assumed, the plaintiffs' motion was denied and the defendants' motions were granted. The plaintiffs filed a Notice of Appeal in 3736 on July 30, 2010. Docket No. 235. On August 17th, 2010, another Notice of Appeal was filed appealing from the July 28th M O. Docket No. 236 in 3736.
That Notice of Appeal reads as follows: "GARY D. GOTLIN, and the plaintiff's decedent GIUSEPPA CARAMANNA BONO, and her surviving spouse, GIUSEPPE BONO, the plaintiffs in the above captioned case . . . appeal from the final judgment entered in this action on May 20, 2010 and all orders and judgments issued prior thereto which dismissed various causes of action asserted by the plaintiff." It is unclear as to what is embraced by "all orders and judgments issued prior thereto which dismissed various causes of action asserted by plaintiffs." See Fed.R.App.P. 3(c)(1)(B), providing that the notice of appeal must "designate the judgment, order or part thereof being appealed."
That Notice of Appeal reads: "Pursuant to R. App. P. 4 and Fed.R.Civ.P. 58(a)(4), notice is hereby given that the plaintiff, GARY D. GOTLIN, and the plaintiff's decedent, GIUSEPPA CARAMANNA BONO, and her surviving spouse, GIUSEPPE BONO, the plaintiffs in the above captioned case, hereby appeal to the United States Court of Appeals for the Second Circuit from the annexed final Order entered in this action on July 28, 2010 and all orders and judgments issued prior thereto which dismissed various causes of action asserted by the plaintiffs.
On September 29, 2010, a docket entry numbered 178, reading "Amended Notice of Appeal," was filed in 1899. An unnumbered docket entry the following day, September 30, 2010, notes that: "Document #178 was filed as a NOA. It has been corrected to show Amended NOA." A review of the 1899 docket sheet fails to reveal that a Notice of Appeal ("NOA") was ever filed in that case and, obviously, there was no NOA to be amended. The explanation would appear to lie in the NOA that was filed in 1899, referenced that it was an appeal from orders and judgments in 3736 and 1899. The Notice reads in relevant part that:
. . . [T]he plaintiff, Gary D. Gotlin, on behalf of all plaintiffs in Docket Nos. 04-CV-3736 and 05-CV-1899, hereby appeals from the annexed final Order entered in
this action on July 28, 2010
; the judgment on the jury verdict in 04-CV-3736 on May 21, 2010; the order entered on May 3, 2010 granting in part and denying in part the motions
in limine
; the Memorandum and Order dated May 21, 2009 granting in part and denying in part defendants' motions for summary judgment on Dockets 04-CV-3736 and 05-CV-1899; Memorandum and Order dated April 28, 2006 dismissing causes of action in 05-CV-1899; and the Memorandum and Order filed May 3, 2005 dismissing causes of action in Docket # 04-CV-3736.
The indiscriminate filing in the 1899 docket sheet of a Notice of Appeal from a judgment in 3736, together with the undifferentiated references in other filings, contributed to the "dizzying" circumstances alluded to by the plaintiffs infra presented by the docket sheets.
Although throughout the litigation of these cases, pretrial motions and other issues were frequently addressed together involving as they did precisely the same issues, the separate docket sheets and references to Gotlin I and Gotlin II in many filings left no doubt that two separate cases were being litigated. See, e.g., plaintiffs' Memorandum of Law, Docket No. 244; 316 F. Supp.2d 376, 381-82 (E.D.N.Y. 2009).
The motion now pending before the Court referencing both 3736 and 1899 in the caption is brought by Gotlin pursuant to Rule 58(d) Fed.R.Civ.P. which provides that "A party may request that judgment be set out in a separate document as required by Rule 58(a)." In support of the motion, the Declaration of Counsel states, in paragraph 18 thereof:
The Rule is silent as to when or whether it may or must be granted.
"Notices of appeal have been filed with the Second Circuit Court of Appeals. The docket sheets present a dizzying set of circumstances to the appellants, and the entry of final judgment on both dockets that were before the Court will serve to clarify things and aid in judicial economy, so that all issues for appeal from the District Court may be presented to the Court of Appeals in a single brief."
Discussion
Insofar as the plaintiff seeks the entry of a judgment in favor of the defendants following the return of a verdict by the jury, one was entered on May 21, 2010. Docket No. 222 in 3736. Insofar as the entry of a judgment is sought on the Court's Order denying motions made pursuant to Rules 50 and 59 Fed.R.Civ.P., the entry of a judgment in a separate document is not necessary and the motions as to those are superfluous. See Rules 58(a)(1) and (4) Fed.R.Civ.P. The Order as required by Rule 79(a) pertaining to the Rules 50 and 59 motions was entered on July 29, 2010, in 3736, Docket No. 234.
No judgments were entered on the Order of May 3, 2010, regarding motions in limine. That Order was not appealable and the legally correct determination of it is arguable on the appeal from the judgment entered on May 21, 2010.
The Orders of April 28, 2006 and May 3, 2005, were not appealable as of right involving as they did multiple claims and multiple parties. The belated and meritless, if not frivolous, Rule 58(d) motion as it pertains to those could only charitably be regarded as a request to enter judgment pursuant to Rule 54(b), which would be summarily denied, for to grant it would be erroneous and an abuse of discretion. The pending motion insofar as it pertains to those Orders is, therefore, denied.
It should also be noted that a letter addressed to the Court dated August 19, 2010, requested the Court to "direct the clerk to enter judgment in the following orders:
(1) Your Memorandum and Order dated May 3, 2005 in 04-CV-3736;
(2) Your Memorandum and Order dated April 28, 2006 in 05-CV-1899; and
(3) Your Memorandum and Order dated May 21, 2009 in 04-CV-3736 and 05-CV-1899.
That letter was docketed in 3736, No. 237. Although not so designated, it will be deemed a motion pursuant to Rule 58(d) and is also denied for reasons given hereafter.
I now turn to the pending motion as it pertains to the Order of May 21, 2009. That Order, together with the Order of July 24, 2009, was dispositive of all claims and all parties in the 1899 case leaving Gotlin, on behalf of Caramanna Bono and Giuseppe Bono, the sole remaining plaintiff in the 3736 action. For the reasons that follow, the pending motion seeking the entry of a judgment in the 1899 action must be denied as being time-barred.
The May 21, 2009 Order was entered by the Clerk in the civil docket for 3736 and 1899 numbered 168 in each. It was dispositive of both cases as that Order makes plain. 316 F. Supp.2d, 376 at 381 ("The present motion applies to two separate but indistinguishable causes of action arising out of the same or similar factual circumstances.") The July 24th Order was entered in the 1899 docket, numbered 173. Those entries were as required by Rule 79(a) Fed.R.Civ.P. Although a judgment set forth in a separate document was not entered on May 21, 2009, as required by Rule 58(a), it was deemed entered after 150 days had run from its notation in the civil docket, if not from May 21, then surely from July 24, when, as has been noted above, there were no claims and no parties remaining and was final within the meaning of 28 U.S.C. § 1292. That result is required by the application of Rule 4(a)(i)(A) Fed.R.App.P. and Rules 58(a) and (c) of the Fed.R.Civ.P. Rule 4(a)(i)(A) requires a notice of appeal to be filed with the district clerk within 30 days after the judgment or order appealed from is entered. Rule 58(a) provides that every judgment must be set out in a separate document. Rule 58(c) provides that if a separate document is required, a judgment is deemed entered, albeit not in a separate document, after 150 days have run when the judgment is entered in the civil docket under Rule 79(a). See also Rule 4(a)(7)(A)(ii);LeBoon v. Lancaster Jewish Community Center Ass'n., 503 F.3d 217 (3rd Cir.), cert. denied, 128 S. Ct. 2053 (2008). A Notice of Appeal was thus required to be filed within 30 days after the 150 days had run and it was not. The time limitations are jurisdictional and cannot be waived. Silivanch v. Celebrity Cruises, Inc., 333 F3d 355 (2d Cir. 2003), cert. denied, 540 U.S. 1105. The appeal of the 1899 case is thus time-barred and the plaintiffs' pending Rule 58(d) motion as it pertains to that case must be denied.
In that event, the plaintiffs could have appealed the 1899 case before the entry of a Rule 58 judgment even if it was not embodied in a separate document required by Rule 58 if the judgment was really final within the meaning of 28 U.S.C. § 1291.See Borrero v. City of Chicago, 456 F.3d 698, 700 (7th Cir. 2006), citing Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978).See also Litas International, Inc. v. E. Donald Shapiro, et al., 316 F.3d 113, 117-18 (2d Cir. 2003).
If the letter of August 19th, noted above, were claimed to be an application for an extension of time to file a notice of appeal, denial would be mandated by Rule 4(a)(5)(A)(i), Fed.R.App.P. Even the most cursory familiarity with the litigation history in this case would leave no doubt that excusable neglect or good cause could not conceivably be shown as would be required by 4(a)(5)(A)(ii). Redhead v. Conference of Seventh Day Adventists, 360 Fed. App. 232, 2010 WL 95113 (2d Cir. 2010).
The discussion of the tortuous background of this pending motion notwithstanding, my jurisdiction to entertain it as it pertains to 1899 may be questioned. The Notice of Appeal docketed on September 29, 2010, amends the Notice of Appeal docketed on July 30th, and references both the 3736 and 1899 cases in the caption, and makes specific reference to the May 21, 2009 Order as a subject of the appeal. The pending motion was filed on September 28th. As a general rule, the timely filing of a notice of appeal immediately transfers jurisdiction to the Circuit Court and divests the district court of jurisdiction over all matters relating to the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). My determination that the notice of appeal was not timely filed makes the general rule inapplicable.
Conclusion
The pending motion is denied insofar as it pertains to the Orders of April 28, 2006, May 3, 2005 and May 21, 2009, for the reasons stated. The motion insofar as it pertains to the judgment of May 21, 2010 and the Order of July 29, 2010, is superfluous and denied for the reasons stated.
SO ORDERED.
Dated: Brooklyn, New York November 9th, 2010
r truth.
IV. THE COURT DID NOT ERR IN REFUSING TO STRIKE OVERHILL'S REMAINING CAUSES OF ACTION.
Defendants also challenge the sufficiency of the evidence to sustain Overhill's claims for intentional inference with prospective economic advantage, intentional interference with contractual relations and extortion. Defendants' primary argument is that each of these claims is dependent upon the sufficiency of the defamation claim, which it characterized as lacking. As we have already explained, we find that argument unpersuasive. As we now explain, we find defendants' alternative arguments with respect to these other claims to be unpersuasive as well, and conclude the court did not err in refusing to strike them.
A. Interference with Prospective Economic Advantage
Defendants challenge Overhill's cause of action for interference with prospective economic advantage by arguing Overhill failed to provide any evidence of actual disruption or harm to an existing economic relationship. Specifically, defendants point to Overhill's evidence that one of its customers, Fresh and Easy, subjected it to an "ethics audit," which focused on questions about "immigration issues," in the wake of defendants' alleged defamatory statements. Defendants claim this evidence shows "mere temporal proximity" between their conduct and the audit, and was inadequate, as a matter of law, to demonstrate causation. (See Franklin, supra, 116 Cal.App.4th 375.) We cannot agree.
Although some cases have suggested that temporal proximity, alone, might be insufficient to demonstrate a causal relationship, we view the issue as more complex than that, and largely dependent upon the degree of proximity and the likelihood of a cause-and-effect relationship. For example, if a plaintiff offers evidence that a defendant's boat struck his broadside, and within five minutes his boat started to sink, we think that would be sufficient evidence, in and of itself, to support an inference of causation. By contrast, a plaintiff's evidence that his boat sank 10 days after being hit by a defendant's, is significantly less compelling, and might be insufficient, by itself, to suggest any causal relationship. And if a plaintiff were to testify the sun goes down every night within moments of when he takes his first sip of a gin and tonic, we would conclude the evidence was insufficient, as a matter of law, to support any inference his imbibing actually caused the sun to set.
Thus, while Motorola Communication Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th, 1340, 1345 [ 64 Cal.Rptr.2d 477], does state that "[m]ore than post hoc, ergo propter hoc must be demonstrated," the case cannot be fairly characterized as stating an inflexible rule that such evidence would be insufficient in all cases. Indeed the Motorola court itself actually states the opposite, noting "[although, in the absence of other evidence, timing alone may be sufficient to prove causation, the present matter involves much more." ( Ibid., italics added.) Thus, as the Motorola court makes clear, the real issue is whether, in the circumstances of the case, the proximity of the alleged cause and effect tends to demonstrate some relevant connection. If it does, then the issue is one for the fact finder to decide.
Here, Overhill provided evidence that Fresh and Easy began questioning Overhill's termination of the employees within two weeks of its occurrence and called for what they referred to as an "audit" of Overhill's labor practices almost immediately. They also showed that Fresh and Easy had never done anything similar in the past. We think that evidence was sufficient to support an inference of causation, which is all that is necessary in this procedural posture.
Defendants also suggest there was no direct evidence the relationship between Overhill and Fresh and Easy was actually disrupted, because Overhill otherwise acknowledged it expected the relationship to continue into the future. Defendants contend this concession demonstrates "no harm, no foul." While the Chick Hearn approach to jurisprudence has its place, the contention here lacks merit because the evidence cited reflects only that, prior to the defamatory conduct, Overhill "had every expectation that this relationship would continue." That statement merely supports the conclusion Overhill anticipated a "prospective" economic relationship with Fresh and Easy at the time of the alleged defamation.
In any event, defendants cannot challenge the sufficiency of the evidence supporting Overhill's prima facie case by simply attacking one factual claim, without otherwise making any attempt to summarize or analyze the entirety of the evidence pertaining to that point. "It is the appellant's burden, not the court's, to identify and establish deficiencies in the evidence. ( Brown v. World Church 1 (1969)] 272 Cal.App.2d 684, 690 [ 77 Cal.Rptr. 669].) This burden is a `daunting' one. ( In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329 [ 249 Cal.Rptr. 798].) `A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' ( Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208 [ 249 Cal.Rptr. 743], italics added.) `[W]hen an appellant urges the insufficiency of the evidence to support the findings it is his duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.' ( Hickson v. Thielman (1956) 147 Cal.App.2d 11, 14-15 [ 304 P.2d 122].)" ( Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409 [ 58 Cal.Rptr.3d 527].)
Defendants have not done so, and have not established the court erred in rejecting the motion to strike Overhill's cause of action for interference with prospective economic advantage.
B. Tortious Interference with Contractual Relations
Defendants contend Overhill's claim for interference with contractual relations is preempted by the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.), but cite no authority for such preemption involving a claim asserted against third parties, based upon defamatory conduct. The case cited by defendants in support of their contention is Operating Engineers v. Jones (1983) 460 U.S. 669, 677-678 [ 75 L.Ed.2d 368, 103 S.Ct. 1453], which held only that an employee's state law claim for interference with his employment contract, filed against the union itself, was preempted by the NLRA.
The claim in this case does not involve any claims asserted between the employer and the union. Nor is this case merely based upon "grievances filed by Defendants and other[s] and the `threat' of continued presumptively protected peaceful labor picketing." In fact, it is based upon neither of those things. Overhill never challenges defendants' rights to pursue individual labor grievances or to engage in "protected peaceful labor picketing." If it had, defendants' preemption argument might have merit.
But this case is based instead upon defamatory conduct, and as defendants otherwise concede, liability based on such conduct is not preempted. Indeed, as the Supreme Court has expressly held "in Linn v. Plant Guard Workers[, supra, 383 U.S. 53], we held that an action for a malicious and injurious libel in the course of a labor dispute, although an unfair practice and prohibited by the Act, was not pre-empted since it was unprotected conduct and since remedying injury to reputation was of only slight concern to the national labor policy and was a matter deeply rooted in state law." ( Operating Engineers v. Jones, supra, 460 U.S. at p. 681, fn. 11.)
Defendants' alternative assertion, that Overhill "failed to establish [it] suffered an actual breach of its relationship with the Union or actual damages as a result of the grievances that were filed" is waived, as this contention also amounts to an attack on the substantiality of the evidence in support of those points, and it is unaccompanied by any attempt to summarize or analyze the evidence pertaining to that point. Indeed, the passage quoted in the previous sentence is the entire argument. It is insufficient.
C. Extortion
Defendants also challenge the court's refusal to strike the cause of action for extortion, but largely base their argument on the assertion there is no evidence they engaged in any actions amounting to the wrongful use of "force or fear." They note, for example that "[A] person, generally speaking, has a perfect right to . . . provide information to newspapers." ( Philippine Export Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1079 [ 267 Cal.Rptr. 457].) But here again, defendants are simply assuming the "information" they chose to provide was accurate, and that no reasonable fact finder could conclude it was defamatory. As we have already explained, we reject this argument.
We also reject the assertion that no extortion claim could be based upon a continuing threat by defendants to portray Overhill as having engaged in a mass employment termination for racist reasons, based upon nothing more than the fact they had already begun doing so. As defendants themselves acknowledge, their alleged threat was embodied in their continuing plan to "organize a lawful boycott [against Overhill]." Such a plan, if based upon false allegations of Overhill's racist motivations for a mass firing, is not "lawful" and is clearly intended to impute disgraceful conduct to Overhill.
Moreover, if the plan were successful, it would clearly subject Overhill to additional future harm — the fact that some people may already view Overhill as having racist or ageist employment policies based upon defendants' efforts does not mean that additional airing of those assertions (to a new audience or to further convince those who might have heard it already but were skeptical) would not cause further harm. To the contrary, a future "boycott" of Overhill is clearly further harm. Thus, such a threat, if used as a lever to force Overhill to submit to defendants' demands that terminated employees be rehired, would qualify as extortion.
V. DEFENDANTS FAILED TO DEMONSTRATE THE COURT'S EVIDENTIARY RULINGS AMOUNTED TO REVERSIBLE ERROR.
Defendants' final argument is that the court erred in various evidentiary rulings. They first assert the court erroneously sustained objections to portions of their own declarations, in which they purportedly claimed they had "read letters" regarding the terminations, "formed the belief that the discrepancy in social security numbers did not require termination" and engaged in "peaceful picketing." They also purportedly claimed to have formed the belief that the terminations were merely "used as an opportunity to replace long-term, higher paid workers with part-time, lower paid workers." Presumably, this testimony was intended to support the assertion defendants acted in good faith when making the allegedly defamatory accusations at issue in this case.
We say "purportedly" not to cast aspersions on the content of the declarations, but because defendants do not specifically quote the objected-to portions of the declarations in their opening brief, and provide us with a record citation to only the court's ruling. And that ruling, of course, does not provide us with any indication as to where we might locate the declarations within the appellate record.
But even assuming defendants' characterization of the evidence is correct, we cannot conclude the court committed reversible error in excluding it. The testimony, as related by defendants in their brief, appears clearly conclusory, offering no real information as to how these employees "formed the belief that a discrepancy in their Social Security number could not be a basis for termination, or if they also believed that ignoring the employer's specific request to correct an invalid Social Security number was no basis for termination. Consequently, a "no foundation" objection to these conclusory claims appears well taken. (Evid. Code, § 403.)
But even if the claims were technically admissible — defendants claim that individuals "need not provide facts upon which their beliefs were based" (citing Evid. Code, § 702)"the belief evidence is so weak we cannot conceive of how its inclusion would have been likely to change the outcome of the motion to strike. Moreover, Overhill's burden in defeating the antiSLAPP motion was merely to demonstrate a prima facie case — it was not required to conclusively negate the possibility that defendants (or some of them) might have acted with subjective good faith. As we have already explained, there was sufficient evidence to demonstrate defendants knew (or were recklessly indifferent to knowing) their allegedly defamatory statements did not accurately portray the circumstances of Overhill's decision to terminate the employment of workers with invalid Social Security numbers. That is all Overhill was required to prove. The fact defendants themselves may claim otherwise simply does not change the analysis at this point in the proceedings.
Moreover, as Overhill points out, defendants have made no effort to establish the error, if any, was actually prejudicial. It is their burden on appeal to do so, and thus the claim of error is waived. (§ 475; see Cal. Const., art. VI, § 13.)
Section 475 provides: "The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown."
Defendants also contend the court erred in failing to sustain some of their objections to the evidence submitted by Overhill. They identify the problematic evidence as "statements in the declarations of Diaz and Rudis, which Defendants challenged as hearsay, speculations, improper opinions and unsupported conclusions regarding Defendants' state of mind in the `actual' malice proof." They do not specifically quote or otherwise fully identify the evidence they refer to. The failure to do so amounts to a waiver of the contention. "`An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority. `"( Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862 [ 92 Cal.Rptr.3d 717], quoting Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 [ 71 Cal.Rptr.3d 775].)
Here, defendants merely attempt to characterize (rather than quote) only one portion of the allegedly objectionable evidence, and do not even disclose the content of the rest of what they objected to. This precludes any determination they presented a "reasoned argument" about the admissibility of that content.
With respect to the one portion of testimony actually delineated by defendants, we discern no potential for prejudice — and again, defendants make no effort to demonstrate such prejudice. Specifically, defendants claim the purported statements by witness Diaz, to the effect that she "knows, based on her own Latina heritage that the company does not discriminate," were inadmissible. But again, because Overhill was only required to demonstrate a prima facie case, that purported statement is of no particular significance. Other evidence offered by Overhill was sufficient to demonstrate that its decision to terminate hundreds of workers was based upon reasons other than race, contrary to the claims made by defendants in their allegedly defamatory statements. Thus, Overhill demonstrated its prima facie case without regard to any opinion offered by a Latina employee, and the inclusion or exclusion of that statement was of no consequence.
In light of the foregoing, we are thoroughly convinced defendants have failed to demonstrate the court's evidentiary rulings had any discernable impact on its decision to deny the bulk of their anti-SLAPP motion. Consequently, those rulings provide no basis for reversing the decision.
DISPOSITION
The order is affirmed. Overhill shall recover its costs on appeal.
Rylaarsdam, Acting P. J., concurred.
FYBEL, J., Dissenting.
I respectfully dissent.
The First Amendment to the United States Constitution guarantees a cherished freedom-the right to speak openly and freely. ( U.S. Const., 1st Amend. ["Congress shall make no law . . . abridging the freedom of speech . . . ."].) Within the past few years, the United States Supreme Court has broadly protected speech in a public forum in the analysis of permissible speech by candidates for judicial office ( Republican Party of Minn. v. White (2002) 536 U.S. 765 [ 153 L.Ed.2d 694, 122 S.Ct. 2528]), and of corporations in elections ( Citizens United v. Federal Election Comm'n (2010) 558 U.S. [ 175 L.Ed.2d 753, 130 S.Ct. 876]). The anti-SLAPP (strategic lawsuit against public participation) statute provides that it should be construed broadly to protect against "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (Code Civ. Proc, § 425.16, subd. (a).)
Defendants' anti-SLAPP motion should have been granted because none of defendants' statements contains actionable defamation. The statements describe Overhill Farms, Inc.'s (Overhill), firing of a large number of Hispanic and female employees as "racist" and "discriminatory" in the context of vigorous public protests. Overhill failed to produce evidence showing defendants declared or implied a provably false assertion of fact within the meaning of the First Amendment and defamation law jurisprudence (see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19 [ 111 L.Ed.2d 1, 110 S.Ct. 2695]); thus, Overhill's defamation claim fails as a matter of law. The majority opinion is an unprecedented and unwarranted extension of defamation law and is contrary to the First Amendment.
By this lawsuit, Overhill seeks to curb and chill employee protests. As acknowledged by the majority opinion, Overhill has "made clear that injunctive relief to prohibit future misconduct was its primary goal." (Maj. opn., ante, at p. 1252.) (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [ 49 L.Ed.2d 683, 96 S.Ct. 2791] ["If it can be said that a threat of criminal or civil sanctions after publication `chills' speech, prior restraint `freezes' it at least for the time."].) To illustrate this point, would it be actionable if the Los Angeles Times, the Orange County Register, Fox News, or MSNBC complained that actions by anyone were "racist" or "discriminatory"? Of course not. Employees complaining about their employer enjoy the same protection.
Considering defendants' speech under the totality of the circumstances in this case, their speech too is constitutionally protected from a civil suit. In my view, Overhill is perfectly capable of ably presenting its side of the story in the public forum and has done so. Justice Brandeis's statement in Whitney v. California (1927) 274 U.S. 357, 377 [ 71 L.Ed. 1095, 47 S.Ct. 64] (cone. opn. of Brandeis, J.) is apt: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Defendants' assertions might not be persuasive, but they are not actionable.
I. LEGAL PRINCIPLES THAT GOVERN THIS CASE HAVE BEEN MISAPPLIED IN THE MAJORITY OPINION.
I begin my analysis by reviewing the legal points where the majority and I agree. I agree that in order to survive defendants' anti-SLAPP motion, Overhill had the burden of producing evidence to show defendants' statements included a provably false assertion of fact under the totality of the circumstances pursuant to the United States Supreme Court's decision in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19. (See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 [ 10 Cal.Rptr.3d 429] ( Franklin).) (Maj. opn., ante, at p. 1252.) I also agree with the majority opinion's conclusion that the term "racist" is "a word that lacks precise meaning, so its application to a particular situation or individual is problematic." (Maj. opn., ante, at p. 1262.) Indeed, Overhill itself states in its respondent's brief, "Overhill has never contended that the use of the word `racist' as a standalone epithet is actionable."
As discussed in detail post, I part company with the majority opinion in two fundamental respects. First, my colleagues in the majority have incorrectly made this court the first state or federal appellate court in America, ever, to hold that the epithet "racist" constitutes a provably false assertion of fact as the basis of a claim of defamation. The majority attempts to argue that it is only so holding because the term "racist" was used in combination with other words. But those other words are not actionable and the majority does not and cannot argue otherwise. Whether the word "racist" is used as a noun or an adjective in combination with other words does not matter.
Second, in my view, the majority misapplies the United States Supreme Court opinions in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19 and Linn v. Plant Guard Workers (1966) 383 U.S. 53, 58 [ 15 L.Ed.2d 582, 86 S.Ct. 657]. Defendants' communications in their dispute with their employer simply did not contain a provably false fact and the reasons for their allegations were disclosed. ( Franklin, supra, 116 Cal.App.4th at p. 387.) The majority opinion's parsing of the one word "discrepancies" in reaching its conclusion is not consistent with United States Supreme Court jurisprudence in defamation cases. I agree the employees' claims might not be persuasive, but that does not make them defamatory.
II. OVERHILL FAILED TO PRODUCE EVIDENCE SHOWING DEFENDANTS MADE ANY PROVABLY FALSE ASSERTION OF FACT.
Overhill argues it produced prima facie evidence of defamation showing defendants made the following statements: (1) Overhill is a racist employer; (2) "Overhill targeted women, Hispanics and older workers for termination"; (3) "Overhill targeted long-term employees and replaced them with part-timers with no benefits"; (4) "Workers were fired for a social security number `discrepancy' which is `not a cause for termination'"; and (5) "Overhill replaced the employees in violation of a union contract." The majority opinion concludes defendants' statements asserting that Overhill was racist and discriminated against Hispanics and women in its handling of the invalid Social Security numbers and defendants' characterization of the problem with the Social Security numbers as a discrepancy showed they asserted a provably false statement of fact. The majority opinion does not conclude any of the other statements was defamatory so I do not analyze those statements as none of them contains a provably false statement of fact either.
A. Defendants' Statements Regarding the Termination of Employment of Hispanic and Female Employees Did Not Include a Provably False Assertion of Fact. It is undisputed that Overhill terminated the employment of a large number of employees who were Hispanics and women. Overhill contends defendants defamed it by characterizing Overhill's conduct as racist and discriminatory.
As the majority opinion acknowledges, the simple use of the terms "racist" and "discriminatory" does not constitute actionable defamation because such terms lack precise definition and are hard to prove. (See, e.g., Stevens v. Tillman (7th Cir. 1988) 855 F.2d 394, 402 [neither general statements charging a person with being racist, unfair, unjust, nor references to general discriminatory treatment, without more, constitute provably false assertions of fact]; Beverly Hills Foodland, Inc. v. United Food Commercial Workers Union, Local 655 (8th Cir. 1994) 39 F.3d 191, 196 [use of terms like "unfair" and "fascist," the court stated, "`is not to falsify facts'"].)
Here, defendants did not merely utter the terms "racist" and "discriminatory" in a vacuum. The press release states that Overhill engaged in racist firings and references the disparate impact the firings had on "immigrant women." The leaflets state the discrepancies in Social Security numbers were used as a pretext to eliminate certain workers, and refer to Overhill's conduct as "racist and discriminatory abuse against Latina women immigrants."
In applying the totality of the circumstances test ( Franklin, supra, 116 Cal.App.4th at pp. 385-386), we consider not only the language used, but also its context. Here, without exception, defendants' statements were made in the context of indisputably heated protests and demonstrations concerning Overhill's decision to terminate the employment of a large number of employees who were identified on the 1RS list and failed to provide valid Social Security or tax identification numbers.
In Linn v. Plant Guard Workers, supra, 383 U.S. at page 58, the United States Supreme Court observed: "Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language." The Supreme Court in Linn "`acknowledge[] that the enactment of § 8(c) [of the NLRA [(National Labor Relations Act)]] manifests a congressional intent to encourage free debate on issues dividing labor and management" [citation] and that the National Labor Relations Board leaves ` "to opposing parties the task of correcting inaccurate and untruthful statements.," `"( Sutter Health v. UNITE HERE (2010) 186 Cal.App.4th 1193, 1206 [ 113 Cal.Rptr.3d 132], italics added.)
The Linn court, however, also noted that although "`tolerat[ing] intemperate, abusive and inaccurate statements made by [a] union during attempts to organize employees,' the National Labor Relations Board `does not interpret the Act as giving cither party license to injure the other intentionally by circulating defamatory or insulting material known to be false. `"( Sutter Health v. UNITE HERE, supra, 186 Cal.App.4th at p. 1206.)
Although the demonstrations and protests in the instant case did not involve a union and thus might not constitute a "labor dispute" in the traditional use of the phrase, the context is similar. The audience to which the press release was addressed and to whom the leaflets were distributed outside Overhill's plants and a Panda Express store would reasonably understand from the context that the use of the term "racist" as attributed to Overhill and its conduct constituted rhetorical hyperbole. This hyperbole reflected the demonstrators' contempt, frustration, and desperation in connection with their employment situation. ( Franklin, supra, 116 Cal.App.4th at p. 389 [the "`contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed'"].)
The National Labor Relations Act defines the term "labor dispute" as "any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." ( 29 U.S.C. § 152(9).) In Sutter Health v. UNITE HERE, supra, 186 Cal.App.4th at page 1207, the appellate court stated, "` "[w]here the union acts for some arguably jobrelated reason, and not out of pure social or political concerns, a `labor dispute' exists."
But even if the audience of such publications might not construe such statements as rhetorical hyperbole, a closer examination of the language of the press release and the leaflets reveals the absence of any charge that Overhill made its decision to terminate certain employees' employment because they were Hispanic or female. The press release and the leaflets expressly state that the impetus for the termination of employment decision was the problem of certain employees having discrepancies with their Social Security numbers, thus advising the reader that Overhill's decision did not come out of thin air. A careful reading of these publications shows the authors attribute Overhill with having made a racist decision because its decision to terminate the employment of employees with unresolved invalid Social Security numbers turned out to affect a large number of "Latina women immigrants."
In addition, as acknowledged in the majority opinion, "`[a] statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning.' [Citation.] The rationale for this rule is that `[w]hen the facts underlying a statement of opinion are disclosed, readers will understand they are getting the author's interpretation of the facts presented; they are therefore unlikely to construe the statement as insinuating the existence of additional, undisclosed facts. `"( Franklin, supra, 116 Cal.App.4th at p. 387.) Here, the press release and the leaflets disclosed the facts underlying their use of the word "racist" and reference to the termination of employment of Latina females.
Overhill does not dispute that its decision to terminate the employment of those employees who had unresolved invalid Social Security or tax identification numbers affected a large number of Hispanics and women. Overhill does not dispute that the Social Security Administration has stated that a discrepancy with a Social Security number, in and of itself, is not a terminable offense. Contrary to Overhill's characterizations of defendants' statements in the majority opinion and the respondent's brief, none of the protest documents (the press release, signs, leaflets, flyers, and handbills) relied upon by Overhill states that it targeted Hispanics or Latinos in making its decision to terminate employment.
B. Defendants' Statements That Overhill Terminated Employment Because of "Discrepancies "in Social Security Numbers Is Not a False Statement. The majority opinion reasons Overhill was defamed by the press release's and the leaflets' statements that the employees' employment was terminated due to "discrepancies" in the Social Security numbers because the evidence shows they had invalid Social Security numbers that they failed to correct. But having an invalid Social Security number can be fairly characterized as having a discrepancy in the Social Security number. Even if the word "discrepancy" can be parsed so thin to perhaps mean something else, the First Amendment and defamation law do not support resting liability on so weak a basis. To the extent Overhill contends the audience of such statements might not understand the careful consideration Overhill gave to the employment termination decisions by defendants' reference to Social Security number discrepancies, Justice Brandeis's statement in Whitney v. California, supra, 274 U.S. at page 377 (cone. opn. of Brandeis, J.) is again apt: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Overhill was free to issue its own press release or distribute its own leaflets to communicate more details surrounding the discrepancies in the Social Security numbers.
As discussed ante, Overhill does not dispute that a discrepancy in a Social Security number might be insufficient "cause" for employment termination without more. The reference to the Social Security Administration's statement that such discrepancies do not constitute such cause does not mean that Overhill was outside of its rights in making the employment termination decisions in this case. As discussed ante, there is no evidence defendants made any statement Overhill violated the collective bargaining agreement with the union in implementing the employment termination decisions. Overhill has therefore failed to establish a provably false statement of fact in this regard as well.
III. THE TRIAL COURT SHOULD HAVE GRANTED THE ANTI-SLAPP MOTION.
Because Overhill failed to make a prima facie showing defendants made a provably false assertion of fact, Overhill failed to show a probability of prevailing on its defamation claim. 1 do not condone the tone or content of the publications at issue in this case. The issue in this case is whether Overhill produced evidence defendants made a provably false assertion of fact and, for the reasons discussed ante, I disagree with the majority and conclude Overhill did not.
The merit of Overhill's claims for intentional interference with prospective economic advantage, intentional interference with contractual relations, and extortion rise or fall on the merit of its defamation claim because all of these claims were based on wrongful conduct in the form of defendants' making allegedly defamatory statements. I therefore do not need to address those claims separately as they should fall with the claim of defamation.
For all these reasons, the trial court should have granted the motion to strike in its entirety and the order should be reversed.