Monday, May 4, 2009
Anonymous Charge of Terrorism Not Protected by Anti-SLAPP Law—C.A.
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court of Appeal has rejected a Santa Monica attorney’s attempt to strike a complaint alleging she anonymously telephoned aircraft manufacturer Boeing to accuse a client’s ex-husband, a Boeing employee, of terrorism.
Div. Three ruled Thursday in an unpublished opinion that Najila Kordrostami Brent could not rely on state law barring strategic lawsuits against public participation because her statements neither involved an official proceeding nor concerned an issue of public interest.
Farahmarz Abolfathi sued Brent for slander, interference with prospective contract, intentional infliction of emotional distress and “conspiracy” after Brent allegedly claimed Abolfathi was a security risk while she secretly advised his ex-wife in the pair’s divorce.
The complaint alleged Brent told Boeing Abolfathi was a pathological liar and a terrorist who secretly worked for a foreign country, and divulged classified information to impress women. Boeing contacted the FBI, which investigated the allegations and cleared Abolfathi.
Brent demurred and moved to strike the complaint under the anti-SLAPP law, but Orange Superior Court Judge Derek W. Hunt denied the motion after sustaining Brent’s demurrer to the interference causes of action.
On appeal, Brent contended the statements were protected because they were made in an “official proceeding authorized by law” or “in connection with an issue under consideration or review by [an] official proceeding authorized by law,” as specified under Code of Civil Procedure Sec. 425.16(e).
She argued the statements were made in an official proceeding because Boeing—one of the nation’s largest defense contractors—was a “de facto government regulatory agency;” that the statements were subject to the litigation privilege; and that they were protected because they repeated accusations first made during the divorce proceedings.
However, Justice Raymond J. Ikola wrote of Brent’s arguments that “none hold water,” and said that she failed to show a connection between the anonymous telephone call and an issue of public interest.
Brent asserted that Boeing maintained a business unit dedicated to analyzing terrorist threats and integrating public and private terrorist information, which consulted with the U.S. Department of Homeland Security, but Ikola commented that the unit’s activities could not be “official proceedings” under the anti-SLAPP law because they were not reviewable by administrative mandate.
The justice then concluded that the litigation privilege did not apply because the communication was made to a private party, not an administrative agency charged with enforcing the law, and because an anonymous caller would not be a party in any investigation of Abolfathi’s security risk. He also said that republication of litigation communications was not privileged.
Turning to Brent’s assertion of a public interest in national security, Ikola commented that “statements of private concern are not protected merely because one might extrapolate a tangential connection to some general public concern.”
Citing Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, in which the defendant accused the plaintiff of theft in trade newsletters and letters to colleagues, Ikola wrote that “[a]n insufficient ‘degree of closeness’ exists between the ‘broad and amorphous public interest’ in these issues and a telephone call between a private citizen and a corporation concerning one employee’s alleged misdeeds.”
In Weinberg, Third District Presiding Justice Arthur Scotland explained:
“The fact that defendant’s statements accuse plaintiff of criminal conduct make them defamatory on their face…. It does not automatically make them a matter of public interest.”
Ikola also noted that the court, given its conclusions, did not need to reach Abolfathi’s contention that the call was unprotected because it was anonymous. He further wrote that the court did not need to determine whether Brent was the anonymous caller because the burden had not shifted to Abolfathi to show a probability of prevailing on the merits.
Presiding Justice David G. Sills and Justice Richard M. Aronson joined Ikola in his opinion.
The case is Abolfathi v. Brent, G039957.
Copyright 2009, Metropolitan News Company