Filed 1/7/05 CERTIFIED FOR PUBLICATION
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THOMAS J. HARRON,
Plaintiff
and Respondent,
v.
JAIME BONILLA et al.,
Defendants and Appellants. D042903
(Super. Ct. No. GIC773848)
APPEAL from an order of the Superior Court of San Diego County, Sheridan Reed,
Judge. Affirmed. Foley & Lardner, Kenneth S. Klein, Wendy L. Tucker and Sahyeh S. Fattahi for Defendant and Appellant
Jaime Bonilla. Haight, Brown & Bonesteel, Jules S. Zeman, Kevin M. Osterberg, Maureen Haight Gee, Kelly D. Wood and
J. Alan Warfield for Defendant and Appellant Antonio Inocentes. Wood & Wood, John W. Wood and Shirley J. Wood for
Plaintiff and Respondent. Jaime Bonilla and Antonio Inocentes appeal an order denying their special motions to strike
Thomas J. Harron's defamation action against them under the anti-SLAPP (strategic lawsuit against public participation) statute.
(Code Civ. Proc., ¡± 425.16.) We conclude neither defendant met his threshold burden of showing the complaint
arises from protected speech within the meaning of the anti-SLAPP statute, and thus the burden did not shift to Harron to
show a probability of success on the merits. We affirm the order. FACTUAL AND PROCEDURAL BACKGROUND In 1991
the Otay Water District (the District) hired Harron as its general counsel. In November 2000 the District's voters elected
three new members, including Bonilla and Alfredo Cardenas, to the District's Board of Directors (Board) for the term beginning
January 2001. In a December 2000 meeting, the outgoing Board approved an employment contract for Harron that included a 15-month
severance period. In a memorandum, the outgoing Board rated Harron's performance "as 'Outstanding,' " and recommended that
the incoming Board consider "a favorable merit increase . . . in recognition of [his] outstanding performance." In
a January 10, 2001 special meeting Bonilla and Cardenas assumed office and the Board elected Bonilla as its president. The
Board adjourned to closed session to discuss personnel matters, and on its return to open session Bonilla moved to terminate
Harron's employment. Inocentes, a long time member of the Board, seconded the motion, and he, Bonilla and Cardenas, a majority
of the Board, voted to fire Harron. The Board held no discussion in open session regarding Harron's job performance or its
reason for firing him. Immediately after the special meeting adjourned, Bonilla and Inocentes spoke to a newspaper
reporter for The San Diego Union-Tribune (Union-Tribune) about Harron's termination. The following day, the newspaper published
an article that quoted Bonilla as saying: " 'It's not necessarily for cause[.] . . . It's a matter of trust. The
board just didn't trust [Harron]. That's the basic bottom line.' " The article quoted Inocentes as saying, " 'I
felt [Harron] had a conflict of interest.' " Director Watten was quoted as saying, "the action against [Harron]
was 'a vendetta well known to be coming.' " The article was also published on the Union-Tribune's Internet Web site. Harron
sued Bonilla and Inocentes for slander. The fourth amended complaint alleges the true reason Harron was fired was because
of his race, and the defendants' statements were false and spoken "with the intent to injure plaintiff personally and professionally."
The complaint also alleges "Bonilla had personal animosity and hatred toward plaintiff because of his prior business dealings
with plaintiff, and because of plaintiff's race," and "Inocentes had personal animosity and hatred toward plaintiff because
plaintiff cooperated with the District Attorney's office in its investigation of . . . Inocentes, because plaintiff refused
to approve certain financial matters that would have benefitted . . . Inocentes, and because of plaintiff's race." Bonilla
and Inocentes brought separate special motions to strike under section 425.16. They argued their comments to the Union-Tribune
reporter were in the exercise of their constitutional right of free speech in connection with a public issue, and Harron
cannot establish a probability of prevailing on the merits. Particularly, the defendants claimed their statements were matters
of opinion and not false, and the statements were absolutely privileged under Civil Code section 47. In opposition
to the motions, Harron argued the defendants' speech was not protected within the meaning of the anti-SLAPP statute, and it
was probable he would prevail on the merits at trial. Harron submitted evidence showing that during the 2001 campaign for
seats on the Board, Bonilla, Inocentes, Cardenas and other persons met numerous times to discuss campaign strategy and issues.
During the meetings, Bonilla professed his intent to replace Caucasian employees of the District with Latino employees. Bonilla
made statements such as, " 'We got to get rid of all the gringos' "; he needed " 'his people,' " meaning Latinos, at the District;
he intended to have the District hire his Latino lawyers, and he wanted Harron fired because he is " 'Anglo.' " Harron also
submitted evidence that Inocentes frequently made comments to the District's general manager that he found derogatory, such
as " 'Anglo,' " to differentiate between persons based on their race. Harron submitted a variety of additional evidence to
support his theory the defendants' stated reasons for his termination were subterfuge. In a tentative telephonic
ruling, the court denied the anti-SLAPP motions on the ground the defendants failed to make prima facie showings their comments
to the Union-Tribune reporter were protected within the meaning of subdivision (e)(2), (3) or (4) of section 425.16. At oral
argument, the court explained that because the Board chose to consider Harron's employment in closed session, and personnel
matters discussed in closed session are confidential, the defendants' comments do not meet the "public issue" or "public interest"
requirements of section 425.16, subdivision (e)(3) and (4). The court determined that to show the anti-SLAPP statute applies,
the defendants were required to make a "threshold showing" their comments regarding the reason for Harron's termination did
not divulge matters discussed in closed session. The court granted the defendants' request to submit supplemental
declarations. After considering them, the court confirmed its tentative ruling as to Bonilla. The court found Inocentes
made a prima facie showing his comment to the reporter was protected under the anti-SLAPP statute because it did not divulge
information discussed in closed session, but the court denied his motion on the alternative ground Harron showed a probability
of prevailing on the merits at trial. DISCUSSION I The Anti-SLAPP Statute In 1992 the Legislature enacted
section 425.16, known as the anti-SLAPP statute, to allow a court to dismiss certain types of unmeritorious claims at an early
stage in the litigation. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1159.) "The anti-SLAPP statute
is designed to nip SLAPP litigation in the bud by striking offending causes of action [that] 'chill the valid exercise
of the constitutional rights of freedom of speech and petition . . . .' " (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th
1035, 1042.) Section 425.16 provides: "A cause of action against a person arising from any act of that person in furtherance
of the person's right of petition or free speech under the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim." (¡± 425.16, subd. (b)(1).) In deciding
an anti-SLAPP motion, the trial court must "engage in a two-step process. First, the court decides whether the defendant
has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court
finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing
on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "In making its determination, the
court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense
is based." (¡± 425.16, subd. (b)(2).) A defendant meets his or her burden by showing the act underlying
the plaintiff's cause of action fits one of the categories enumerated in section 425.16, subdivision (e). (City of Cotati
v. Cashman (2002) 29 Cal.4th 69, 78.) As used in that provision, a protected act includes "(1) any written or oral statement
or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(2) 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; (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct
in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue
of public interest." (¡± 425.16, subd. (e).) Subdivision (e)(1) and (2) have no public interest requirement.
(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 (Briggs).) "Whether section 425.16 applies,
and whether the plaintiff has shown a probability of prevailing, are both questions we review independently on appeal." (Kashian
v. Harriman (2002) 98 Cal.App.4th 892, 906.) An "appellate court, whenever possible, should interpret the First Amendment
and section 425.16 in a manner 'favorable to the exercise of freedom of speech, not its curtailment.' " (Briggs, supra, 19
Cal.4th at p. 1119.) II Bonilla's Disclosure of Closed Session Discussions Was Not a Legitimate Exercise of
His First Amendment Rights
The anti-SLAPP statute is intended to "protect[] a defendant 'from retaliatory
action for his or her exercise of legitimate . . . rights.' " (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1366,
disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) If the
defendant concedes or the evidence conclusively establishes the conduct complained of was not a valid exercise of his or her
constitutional rights of free speech, the defendant cannot make a prima facie showing the conduct arises from protected activity
within the meaning of the anti-SLAPP statute and the plaintiff has no obligation to show a probability of prevailing on the
merits. (Paul for Council v. Hanyecz, supra, at pp. 1366-1367; Governor Gray Davis Com. v. American Taxpayers Alliance
(2002) 102 Cal.App.4th 449, 459.) Bonilla admitted in deposition that in speaking with the Union-Tribune reporter
he revealed matters discussed in closed session. The evidence conclusively establishes Bonilla's comments violated the Ralph
M. Brown Act (the Brown Act) (Gov. Code, ¡± 54950 et seq.), and thus they are not protected by the anti-SLAPP statute.
The Brown Act " 'was adopted to ensure the public's right to attend the meetings of public agencies. [Citation.]'
[Citation.] Accordingly, the Brown Act requires that the legislative bodies of local agencies . . . hold their meetings
open to the public except as expressly authorized by the [Brown] Act." (Kleitman v. Superior Court (1999) 74 Cal.App.4th
324, 331, fn. omitted.) The Brown Act expressly authorizes a public agency to meet in closed session regarding a variety
of topics, including the consideration of "the appointment, employment, evaluation of performance, discipline, or dismissal
of a public employee. . . ." (Gov. Code, ¡± 54957, subd. (b)(1).) The "underlying purposes of the 'personnel
exception' are to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters
by a local governmental body." (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955.) The "Legislature has drawn
a reasonable compromise, leaving the majority of personnel matters to be discussed freely and candidly in closed session,
but permitting an employee to request an open session to defend against specific complaints or charges brought against him
or her by another individual and thus to clear his or her name." (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th
672, 682.) At the relevant time, the Brown Act did not expressly provide that information discussed in closed
sessions is confidential. In Kleitman v. Superior Court, supra, 74 Cal.App.4th 324, however, which was decided in 1999,
the court held confidentiality could be "strongly inferred" since the Brown Act requires that any minute book of closed sessions
is confidential. The court further explained: "The Attorney General has concluded that 'If the recording of a closed session
discussion must be kept in confidence, it follows that oral communications of such information may not be made to the public.'
[Citation.] Therefore, the Attorney General has 'routinely observed that it would be improper for information received
during a closed session to be publicly disclosed without authorization of the governing body as a whole.' [Citation.]
[] In so concluding, the Attorney General explained that, 'The basis for our prior conclusions was that
the statutes authorizing closed sessions and making records thereof "confidential" would be rendered meaningless if an individual
member could publicly disclose the information he or she received in confidence.' [Citations.] We agree with the
Attorney General. Disclosure of closed session proceedings by the members of a legislative body necessarily destroys the
closed session confidentiality which is inherent in the Brown Act." (Id. at p. 334, citing 76 Ops.Cal.Atty.Gen. 289, 290,
291 (1993), 80 Ops.Cal.Atty.Gen. 231, 239 (1997), italics in original and italics added.) Contrary to Bonilla's assertion,
he had no duty to apprise the public of the reasons for Harron's termination; rather, Bonilla was forbidden from divulging
the nature of closed session discussions. The Legislature's intent to maintain the confidentiality of employment issues discussed
in closed sessionoto protect the employee from embarrassment and promote candid discussionois incompatible with
an intent to protect the revelation of confidential closed session discussions under the anti-SLAPP statute. Closed sessions,
when authorized by the Brown Act, are not subject to public scrutiny. (See Gov. Code, ¡± 54957.1, subd. (a)(5).) Bonilla
contends the trial court erred by requiring him to prove his comments to the reporter did not violate the Brown Act, "before
even getting to the threshold burden under the anti-SLAPP statute." "Indeed, requiring Bonilla to prove that his alleged
statements did not violate Harron's privacy rights, would make 'superfluous' the secondary inquiry as to whether respondent
had established a probability of success." Bonilla relies on Navellier v. Sletten (2002) 29 Cal.4th 82, 94-95, in which the
court explained: " 'The Legislature did not intend that . . . to invoke the special motion to strike the defendant must first
establish her [or his] actions are constitutionally protected under the First Amendment as a matter of law. If this
were the case then the [secondary] inquiry as to whether the plaintiff has established a probability of success would
be superfluous.' " (Italics added, citing Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.) This
language is inapplicable, however, when, as here, the undisputed evidence shows the defendants' conduct is not a legitimate
exercise of free speech rights. In that circumstance, the burden never shifts to the plaintiff to show a probability of success.
Bonilla's speech is not protected under the anti-SLAPP statute as a matter of law. Although the trial court relied
on an analysis of section 425.16, subdivision (e)(2), (3) and (4) in concluding Bonilla's speech was not protected, we may
affirm its order on any theory supported by the record. (Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977)
71 Cal.App.3d 706, 712.) III Subdivision (e)(3) and (4) of Section 425.16 Are Inapplicable to Inocentes's Speech
Inocentes
submitted a declaration that stated his comment to the Union-Tribune reporter regarding Harron's supposed conflict of interest
"was not related to the closed session of the . . . Board," and rather was based on opinions he formed on his own before entering
the closed session. Based thereon, the trial court found that Inocentes "now meets the initial threshold showing [under
subdivision (e)(3) and (4) of section 425.16] and the court must turn to the issue of whether [Harron] will probably
prevail on the claim." After reviewing the evidence, the court answered the question affirmatively. We disagree with the
court's finding that Inocentes met his initial burden, and hold that his speech does not come within subdivision (e)(3) and
(4) of section 425.16. Again, we affirm the court's order if it is correct on any theory supported by the record. Subdivision
(e)(3) of section 425.16 protects speech made in a public forum "in connection with an issue of public interest," and subdivision
(e)(4) of the statute protects "any other conduct in furtherance of the exercise of the constitutional right of . . . free
speech in connection with a public issue or an issue of public interest." (Italics added.) We conclude that under the reasoning
of Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme), subdivision (e)(3)
and (4) of section 425.16 are inapplicable to Inocentes's allegedly defamatory statements. In Du Charme, the plaintiff,
a former managerial employee of the union (Local 45), sued Local 45 and other parties for defamation after a Local 45 employee
posted an article on its Internet Web site stating the plaintiff was removed " 'for financial mismanagement.' " (Du Charme,
supra, 110 Cal.App.4th at p. 112.) The court held that although the publication was presumably of interest to Local 45's
membership, it did not meet the public issue or public interest criteria of the anti-SLAPP statute (¡± 425.16, subd.
(e)(3) & (4)) because when made the publication was "unconnected to any discussion, debate or controversy." (Du
Charme, supra, at p. 118.) Rather, the plaintiff's "termination was a fait accompli; its propriety was no longer at issue.
Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called
for or contemplated. To grant protection to mere informational statements, in this context, would in no way further the statute's
purpose of encouraging participation in matters of public significance (¡± 425.16, subd. (a))." (Ibid.) In
Du Charme, supra, 110 Cal.App.4th at pages 115-116, the court noted that cases applying subdivision (e)(3) and (4) of section
425.16 concern an ongoing public debate, and in contrast, when the Local 45 employee posted the comment about the plaintiff
on Local 45's Web site "[he] was not participating in any . . . Local 45-wide discussion of Du Charme's qualifications
to continue as assistant business manager. He was simply informing the local's members of Du Charme's termination." (Du
Charme, at p. 116.) The Du Charme court held: "[T]o satisfy the public issue/issue of public interest requirement
of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the
public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community),
the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion,
such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public
significance." (Du Charme, supra, 110 Cal.App.4th at p. 119.) Inocentes makes no attempt to distinguish Du Charme. Rather,
he ignores its holding. Although this case involves a public agency, while Du Charme did not, we find the case applicable.
The "anti-SLAPP suit statute is designed to protect the speech interests of private citizens, the public, and governmental
speakers," and the "identity of the speaker is not a decisive factor in determining whether the speech activity is protected
under the First Amendment." (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117, italics added.) Inocentes's
comments to the reporter were unconnected to any ongoing debate; as in Du Charme, the employment action was a fait accompli
and the stated reasons for Harron's firing were informational only. By opting to hold a closed session to consider Harron's
employment, but then airing grievances about him after adjournment of the board meeting, the defendants denied Harron a public
forum in which to defend against their claims of conflict of interest and untrustworthiness. As the Supreme Court has declared,
"[a]t the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas
and opinions on matters of public interest and concern." (Hustler Magazine v. Falwell (1988) 485 U.S. 46, 50, italics added.)
Under Du Charme's analysis, with which we agree, subdivision (e)(3) and (4) of section 425.16 are inapplicable.
Inocentes did not meet his threshold burden of showing his speech is protected under the anti-SLAPP statute. Accordingly,
we are not required to reach the issue of whether Harron showed he has a probability of prevailing on the merits. IV Harron's
Request for Attorney Fees "If the court finds that a special motion to strike is frivolous or is solely intended to
cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion,
pursuant to Section 128.5." (¡± 425.16, subd. (c).) Harron requests attorney fees, contending that "[s]ince
Bonilla's and Inocentes'[s] special motions to strike simply relitigate issues unsuccessfully raised in their earlier
motions, it is submitted their special motions to strike were brought solely to cause unnecessary delay." Harron,
however, has not cited the appellate record to show he even raised the issue of attorney fees at the trial court. "The reviewing
court is not required to make an independent, unassisted study of the record in search of error or grounds to support the
judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, ¡± 594,
p. 627.) Accordingly, where a party provides a brief "without argument, citation of authority or record reference establishing
that the points were made below," we may "treat the points as waived, or meritless, and pass them without further consideration."
(Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.) DISPOSITION
The order
is affirmed. Harron is entitled to costs on appeal. CERTIFIED FOR PUBLICATION
MCCONNELL,
P. J.
WE CONCUR:
HUFFMAN, J.
MCDONALD, J.
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