Monday, December 4, 2017
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Stealing Employer’s Confidential Information Is Not Protected Conduct—Appeals Court
Orange County Judge’s Anti-SLAPP Order Partially Reversed
By a MetNews Staff Writer
A woman, by bringing an action against her former employer in connection with being fired, did not insulate herself from a cross complaint for alleged misconduct while she was employed, the Fourth District Court of Appeal held on Friday, reinstating two of the employer’s three causes of action that were found by a judge to be SLAPPs.
Div. Three, in an opinion by Justice Richard D. Fybel, declared that accessing confidential information, without authorization, and stealing it, and failing to return the employer’s property after being discharged, as alleged by cross-complainant Anaheim Arena Management (“AAM”), is not protected conduct. Orange Superior Court Judge Geoffrey T. Glass, who granted a special motion to strike pursuant to Code of Civil Procedure §425.16, had a contrary view.
Fybel did agree with the fired employee, former AAM vice president of finance Angela Wergechik, that her disclosure of confidential information to her attorney, to assist in pursuing her causes of action, was, under case law, protected as being incident to the right to petition, satisfying the first prong of the anti-SLAPP statute. He also agreed that the employer failed to show a probability of prevailing on the merits, thus justifying dismissal of that cause of action.
With respect to the cause of action for pilfering confidential information, the jurist rejected Wergechik’s argument that it was related to her right to petition because AAM learned of the extent of what she had accessed and retained based on discovery in connection with her wrongful termination action.
Fybel pointed to the California Supreme Court’s May 4 opinion in Park v. Board of Trustees of California State University (2017) in which then-Justice Kathryn Werdegar (since retired) wrote that “a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”
He wrote:
“Here, none of the claims contained in the cross-complaint is based on Wergechik’s decision to sue AAM or her participation in discovery itself. The cross-complaint is based on allegations of wrongful conduct independent of the litigation process, although evidence related to such allegations has been obtained through discovery. Therefore, although Werneck carried her burden of showing her conduct of disclosing confidential information to her attorney constituted protected activity within the meaning of section 425.16, she failed to carry the same burden with regard to her alleged conduct of wrongfully gaining unauthorized access to Adam’s confidential information and failing to timely return AAM’s property.”
AAM manages and operates of the Honda Center, home to the Anaheim Ducks, a professional hockey team.
The case is Anaheim Arena Management v. Wergechik, G053865.
Jason A. Weiss and Ruben D. Escalante of Sheppard, Mullin, Richter & Hampton represented AAM. Tamara S. Freeze and Robert A. Odell of Workplace Justice Advocates were attorneys for Wergechik.
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