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C.A. Division Skips Discussion of First Prong of Anti-SLAPP Statute, Flits to Second Prong
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal has sidestepped the issue of whether, as the trial court ruled, an anti-SLAPP motion necessarily fails in an action based on the surreptitious recording of a telephone conversation to gather evidence for use in a court proceeding because the conduct is not protected.
Justice Marsha G. Slough authored an unpublished opinion, filed Thursday, which affirms the denial of a special motion to strike filed by Daniel Yu and Susan Zhong in response to a cross-action against them by California Veterinary Specialists (“CVS”) and Dr. Jennifer Hoose. However, Slough did not discuss whether the first prong of the anti-SLAPP statute—protected speech or petitioning—is satisfied, jumping to the second prong: whether the action has minimal merit.
An anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, may only be granted if both prongs are satisfied, she said, reasoning:
“As a result, we may affirm denial of an anti-SLAPP motion based only on the fact that the claimant has established their claims have at least minimal merit.”
Slough said that CVS and the veterinarian did establish a probability that they would succeed on the merits in their cross-action for statutory damages under Penal Code 632.7, actual damages for emotional distress based on invasion of privacy, and injunctive relief, thus defeating the anti-SLAPP motion.
Yu and Zhong sued based on the death of their dog, Fluffy, who did not receive CPR predicated on the mistaken belief that they had given a “do not resuscitate” order. They argued that because they recorded a conversation with Hoose in preparation for that lawsuit, they had engaged in protected pre-litigation conduct.
Liability for damages under §632.7 is predicated on a violation of §632 which renders it a crime to “intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.”
There was no violation of §632, they contended, because Hoose, in discussing the death of the dog, had no reasonable expectation of privacy. Hoose, in a declaration, said she “intentionally took the call at my personal desk out of earshot of [the facility’s] clientele to maintain the privacy of the call” knowing that she “would be discussing the sensitive and private subject of a patient’s care and passing with the patient’s owners.”
While San Bernardino Superior Court Judge Keith D. Davis, addressing the first prong of the statute, found the conduct of recording the call was not protected, not reaching the second prong, Slough took the unconventional course of discussing only the second prong.
She found that “CVS and Dr. Hoose have satisfied their burden under Code of Civil Procedure section 425.16 to present a prima facie case that Yu and Zhong violated Penal Code section 632 by recording their telephone call” and that “there is at least minimal merit to the claim that Yu and Zhong violated and invaded Dr. Hoose’s privacy by recording their telephone call.”
She pointed out in a footnote:
“We note that while both causes of action may go forward, as a corporation, CVS itself may pursue an action for the violation of Penal Code section 632 but not for common law invasion of privacy.”
The case is VCA Animal Hospitals, Inc. v. Yu, E072926.
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