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Court of Appeal:
Actress’s Complaint to Her Union Is Not Protected Conduct
Opinion Reinstates Producer’s Action for Defamation
By a MetNews Staff Writer
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CADY McCLAIN Actress |
An actress’s complaint to her union about the alleged misconduct of the producer of an online soap opera is not protected conduct, the Court of Appeal for this district held yesterday, reversing the dismissal of a defamation lawsuit following the granting of an anti-SLAPP motion.
The reversal came in an unpublished opinion by Presiding Justice Arthur Gilbert of this district’s Div. Six. It reinstates the action by Bryan James, creator/producer of the webseries, “Youthful Daze” (2012-2016) against Katie Jo McClain, who is billed as Cady McLain, and seven others.
James—identified in the litigation as “John Doe”—said in his Superior Court complaint that his accreditation as a producer was suspended in 2016 by the Screen Actors Guild (“SAG”) based on “false statements from the Defendants.” He averred:
“All the Defendants made false complaints to SAG that the Series set was unsafe, and that John Doe’s behavior was unprofessional. In particular Defendants claimed that Plaintiff John Doe was a sexual predator, a sexual harasser, purveyor of pornographic material, a rapist, threatened cast member’s families, and was verbally abusive in person and abusive in electronic communications, text messages and e-mails.”
Kleifield’s Ruling
Los Angeles Superior Court Judge Steven J. Kleifield on April 11, 2022, held, in response to McClain’s motion under the anti-SLAPP statute, Code of Civil Procedure §425.16, that her alleged conduct is protected by the right to petition. He explained:
“The right of petition is implicated in this case in two ways. First, McClain contacted the union of which she was a member in connection with a small claims case filed against her and others. Communications from her were therefore in connection with an official proceeding in the Los Angeles Superior Court. This is deemed to have public significance per se….
“Second, her communications were not to just anyone: her communications were to her union representatives regarding her working conditions. Unions are subject to the National Labor Relations Act, where disputes regarding working conditions are resolved through union grievances adjudicated before the National Labor Relations Board. Ultimately, adjudications before the NLRB may be subject to review in the federal courts. The fust step in the process is for a member to report the issue to a union representative.”
Having found that the first prong of the anti-SLAPP statute, protected conduct, is satisfied, Kleifield, addressed the second prong, finding that the plaintiff “has not demonstrated any probability of prevailing in the case.”
Gilbert’s Opinion
Gilbert did not discuss the second prong because he concluded that the conduct on McClain’s part, as alleged by Doe, is not protected.
Sec. 425.16(e)(2) renders privileged “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” Gilbert rejected McClain’s view, accepted by Kleifield, that SAG conducts “official proceedings.
“SAG often uses private contractual arbitration to resolve disputes,” he acknowledged. But that is not an ‘official proceeding’ under the anti-SLAPP act.”
Gilbert elaborated:
“McClain did not make her statements in court, to a legislative body, in a quasi-judicial proceeding, at an evidentiary hearing, at a labor arbitration hearing, at a public forum, or a proceeding to initiate ‘governmental action.’ Her declaration does not describe any ‘official proceeding’ at the union. Instead, McClain declared that she sent an e-mail to a friend at SAG asking for ‘input and guidance’ regarding her private dispute with Doe. This e-mail did not request the initiation of any proceedings, a hearing, or an arbitration.”
The jurist saw no need to consider the National Labor Relations Act, setting forth:
“[T]he issue is whether there was an official adjudicatory proceeding, and there is no evidence of such a proceeding here. McClain may not rely on hypothetical or nonexistent proceedings to meet her burden.”
Small Claims Suit
Although James had sued McClain in the Small Claims Court (eventually dismissing the action), the lawsuit for defamation was not connected to that earlier litigation. He explained, that suit was for the return of $6,000 out of the $9,000 James had paid to McClain for appearing on “Youthful Daze.”
She was fired after the first day. She was to receive $3,000 per day.
Discussing the issue in connection with the litigation privilege rather than §425.16, Gilbert wrote:
“SAG was not a party to the small claims litigation. McClain presented no evidence to show any litigation activity SAG initiated in the small claims court. SAG did not file a lawsuit for McClain, initiate an arbitration, or any quasi-judicial proceeding.
“In her e-mails, McClain said she had retained a private attorney. SAG was not her lawyer.”
McClain had alluded to the litigation in emails to SAG but, the presiding justice pointed out, “those e-mails about small claims actions were not the target of Doe’s lawsuit.”
Public Issue
McClain maintained that her comments about James are protected by §425.16(e)(4) as an exercise of the “constitutional right of free speech in connection with a public issue or an issue of public interest.” Kleifield found it “unnecessary to address the public interest in the subject matter of this case,” noting that the “protected right of petition need not concern an issue of public interest.”
Gilbert did address the issue, saying:
“Here McClain made no showing that she was participating in a public forum or that she communicated her statements to the public,” adding:
“McClain suggests the subject matter of the rights of SAG union members in the media and Doe’s loss of signatory status with the union are matters of ongoing public interest and debate. But McClain must show how her conduct contributed to the public debate.”
Other Defendants
Others named as defendants were Brittany Underwood, Madylin Ann-Michel Sweeten, Natasha Bernard, Richard Charles Hearst, Sarah Hester, Aaron Jaeger, and Janice Gillock. All of the actions were dismissed or settled except that against Jaeger who defaulted, and James is seeking a default judgment against him.
Sweeten also obtained a dismissal pursuant to an anti-SLAPP motion and James filed a notice of appeal on June 9.
McLain has won three Daytime Emmys for her work in “All My Children,” “As the World Turns,” and “Days of Our Lives.” “Youthful Daze” received two Daytime Emmy nominations.
The case is Doe v. McClain, B320210.
Orange County attorneys James D. Decker and Griffin R. Schindler of Decker Law represented James, and Edwin F. McPherson and Pierre B. Pine of the Century City form of McPherson Rane LLP acted for McClain.
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