Mendoza v. ADP Screening & Selection Services, Inc. (2010)

(See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1649-1650 [ 107 Cal.Rptr.3d 294 ] (Mendoza).) “[Providing employment-screening reports is a constitutionally founded, protected activity within the meaning of the anti-SLAPP statute.” (Id. at p. 1653.) Likewise, disclosing a person’s sex offender registration is protected speech under the anti-SLAPP statute.

The court concluded that in Flatley, supra, 39 Cal.4th 299 , the Supreme Court’s repeated use of the word “illegal” (id. at p. 320) in referring to conduct that did not qualify for anti-SLAPP protection was intended to mean conduct that was “criminal, and not merely violative of a statute.” (Mendoza, supra, 182 Cal.App.4th at p. 1654.) The court explained, “First, the court in Flatley discussed the attorney’s underlying conduct in the context of the Penal Code’s criminalizat…

(E.g., Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169 [“[W]e hold that the rule from [Flatley], is limited to criminal conduct”]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [the Flatley court’s “use of the phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute”].) The only purported criminal violation asserted by Asi is a violation of the Stored Communications Act.

(See Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939 , 948–949 [a hospital and its medical staff informed “‘patients’ and the ‘general public’” that a physician lacked qualifications, an issue of public interest]; Hicks v. Richard (2019) 39 Cal.App.5th 1167 , 1172, 1177 [a Catholic school advisory board’s letter to the three diocesan officials, reporting inappropriate behavior by the school principal, “was intended to prompt these outside authorities to investigate a…

(See Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939 , 948–949 [a hospital and its medical staff informed “‘patients’ and the ‘general public’” that a physician lacked qualifications, an issue of public interest]; Hicks v. Richard (2019) 39 Cal.App.5th 1167 , 1172, 1177 [a Catholic school advisory board’s letter to the three diocesan officials, reporting inappropriate behavior by the school principal, “was intended to prompt these outside authorities to investigate a…

Rosen is correct that the Supreme Court in Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley) held that where “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action.” (Accord, Soukup v. Law Offices of Herbert 14 Hafif (2006) 39 Cal.4th 260, 286-287 [“[O]nce the defendant h…

(E.g., Flickinger v. Finwall (2022) 85 Cal.App.5th 822 , 835 (Flickinger) [“The Flatley court went to great lengths to limit the scope of the 16 crime-as-a-matter-of-law exception to section 425.16 protection”]; Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1478 [“Our Supreme Court has emphasized that the exception for illegal activity is very narrow and applies only in undisputed cases of illegality. ‘If . . . a factual dispute exists about the legitimacy of the defendant…

We also reject the only other argument plaintiffs make on prong one: that the anti-SLAPP statute is inapplicable because the mask policy was illegal as a matter of law for infringing on G.W.’s First Amendment rights. 13 Where an anti-SLAPP motion concerns alleged protected activity that “the defendant concedes, or the evidence conclusively establishes . . . was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s …

(See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [“the Supreme Court’s use of the phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not merely violative of a statute”].) 9 The HOA maintained that the vote to initiate the litigation constituted the critical conduct at issue and was “indisputably protected ‘petitioning activity.’ ” The HOA also highlighted that the Tripodeses “abandoned” their burden of establishing a pr…

(Id. at p. 316.) This exception, however, “requires criminal conduct, not a mere violation of court rules or statutes.” (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413 , 427, fn. 9 [illegality exception inapplicable to filing duplicative mechanic’s liens; although conduct may be statutorily unauthorized, it is not criminal]; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616 [illegality exception inapplicable to failure to redact personal identi…

(See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [“[o]ur reading of Flatley leads us to conclude that the Supreme Court’s use of the phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute”]; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169 [reviewing cases]; Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 971 [defamation is not “illegal” within the meanin…

(Mendoza, supra, 182 Cal.App.4th at p. 1654 [“use of the phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not merely violative of a statute”].) Defendants do not concede any wrongdoing, much less criminal conduct.

(Mendoza, supra, 182 Cal.App.4th at p. 1654 [“use of the phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not merely violative of a statute”].) Defendants do not concede any wrongdoing, much less criminal conduct.

Indeed, “[n]umerous 7 cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and 8 activity.” Thayer v. Kabateck Brown Kellner LLP, 207 Cal. App. 4th 141, 154 (2012); 9 Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal. App. 4th 1228 , 10 1245–46 (2005) (“Mere allegations that defendants acted illegally, however, do not render the 11 anti-SLAPP statute inapplicable.”). 12 As California courts have noted, “a p…

(See Collier v. Harris (2015) 240 Cal.App.4th 41, 57 [“A defendant who violates Business and Professions Code section 17525 is not guilty of a crime and therefore the anti-SLAPP statute would apply even if [defendant]’s conduct violated that statute.”]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [defendant’s alleged violations of § 290.46, subd. (l), which prohibits certain uses of information disclosed on Megan’s Law sex offender w…

(Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 (Mendoza).) Furthermore, it is not sufficient that the plaintiffs can reasonably argue or offer some evidence that defendant’s conduct was unlawful.

(See Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1653 [information provided by an employment screening service to a prospective employer constituted protected activity under the anti-SLAPP statute because of the strong public interest in “safe workplaces, and in the liability which may attach to employers who fail to investigate prospective employees . . . .”]; see also FilmOn.com, supra, 7 Cal.5th at p. 145 [citing Mendoza with approval …

Mendoza v. ADP Screening & Selection Services, 107 Cal. Rptr.3d 294, 303 (Cal. Ct. App. 2010).

Mendoza v. ADP Screening & Selection Services, 107 Cal. Rptr. 3d 294, 303 (Cal. Ct. App. 2010).

Code, § 6128 insufficient to meet Flatley standard of illegality]; see also Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [“[w]e understand Flatley to stand for this proposition: when a defendant’s assertedly protected activity may or may not be criminal activity, the defendant may invoke the anti-SLAPP statute unless the activity is criminal as a matter of law”]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1…

(See generally World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570 [“ ‘The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements’ of the anti-SLAPP statute”; we focus on the specific nature of the speech, not the generalities that might be abstracted from it].) Finally, although both e-mails referenced Hebert’s aggressive behavior, which co…

As Division Eight of the Second Appellate District recently confirmed in Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 806 , "case authorities after Flatley have found the Flatley rule applies only to criminal conduct, not to conduct that is illegal because in violation of statute or common law." (See Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169 [Flatley rule "is limited to criminal conduct"]; Mendoza v. ADP Screening & Sele…

(Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [ 107 Cal.Rptr.3d 294 ] (Mendoza).) In establishing this exclusion from the antiSLAPP statute, the Supreme Court “ £emphasize[d] that the question of whether the defendant’s underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and [that] the showing required to est…

Code provisions as a matter of law; anti-SLAPP protection available]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [ 107 Cal.Rptr.3d 294 ] [“the Supreme Court’s use of the phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute”].) Bergstein , decided very recently by this court, discusses the governing authorities on this point at some length.

(Id. at pp. 307-309.) Subsequently it has been recognized that “the Supreme Court’s use of the phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not merely violative of a statute.” (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [ 107 Cal.Rptr.3d 294 ] (Mendoza)’, see Cabral v. Martins, supra, 111 Cal.App.4th at p. 482 [evading child support obligations insufficient to take case outside of scope of anti-SLAPP statute].) T…

The section authorizes the filing of a special motion that requires a court to strike claims brought “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 Constitution or the California Constitution in connection with a public issue . . . unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, sub…

First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one “arising from” protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Episcopal Church Cases (2009) 45 Cal.4th 467, 477 [ 87 Cal.Rptr.3d 275 , 198 P.3d 66 ].) “An appellate court reviews an order granting an anti-SLA…

Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [ 107 Cal.Rptr.3d 294 ], held that the rule from Flatley applies only to conduct that is criminally illegal, rather than merely in violation of a statute.

(Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [ 107 Cal.Rptr.3d 294 ].) This is because “a reading of Flatley to push any statutory violation outside the reach of the anti-SLAPP statute would greatly weaken the constitutional interests which the statute is designed to protect . . . [and a] plaintiff’s complaint always alleges a defendant engaged in illegal conduct in that it violated some common law standard of conduct or statutory pr…

A defendant may not bring an anti-SLAPP motion “based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of [its] exercise of protected speech or petition rights” when “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity is illegal as a matter of law.” (Flatley, supra, 39 Cal.4th at p. 320 ; see Mendoza, supra, 182 Cal.App.4th at p. 1654 [in this context, “…

Notice how the language of section 425.17, subdivision (c) and subsequent case law indicate that the provision exempts "only a subset of commercial speech"-specifically, comparative advertising. 4 ( **1164 All One , supra , 183 Cal.App.4th at p. 1217 , 107 Cal.Rptr.3d 861 ; see Simpson , supra , 49 Cal.4th at pp. 32-33, 109 Cal.Rptr.3d 329 , 230 P.3d 1117 [quoting Mendoza , supra , 182 Cal.App.4th at p. 1652 , 107 Cal.Rptr.3d 294 , for the notion that " 'the Legislature appe…

If this were the case then the inquiry as to whether the plaintiff has established a probability of success would be superfluous.” (Ibid.) In Navellier v. Sletten, supra, 29 Cal.4th 82 , the plaintiffs argued that “the anti-SLAPP statute does not apply to this action because any petitioning activity on which it is based was not ‘valid.’ ” (Id. at p. 94.) The Supreme Court clarified that “any ‘claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must r…

Had the Legislature intended the commercial speech exemption to encompass representations of fact about any business operations, goods, or services made for the purpose of promoting sales, leases, or transactions in the speaker’s own goods or services, then it would not have limited the exemption to statements or conduct consisting of “representations of fact about that person’s or a business competitor’s business operations, goods, or services . . . .” (§ 425.17(c)(1); see …

(Dziubla v. Piazza (2020) 59 Cal.App.5th 140 , 151; see also, Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [“a plaintiff’s complaint always alleges a defendant engaged in illegal conduct in that it violated some common law standard of conduct or statutory prohibition, giving rise to liability, and we decline to give plaintiffs a tool for avoiding the application of the anti-SLAPP statute merely by showing any statutory violation”].) P…

(See Flatley v. Mauro (2006) 39 Cal.4th 299, 314 (Flatley).) “ ‘We review de novo the grant or denial of an anti-SLAPP motion.’ ” (Sweetwater, at p. 940; see Spencer v. Mowat (2020) 46 Cal.App.5th 1024 , 1036.) “In other words, we employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted.” (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1652 .) The first part of the two-part te…

(Cross, at pp. 375–378; id. at p. 366, fn. 3.) “The statements of [legislative] intent and the [Megan’s Law] legislation . . . reflect heightened concern about the potential dangers posed by convicted sex offenders and strong and widespread public interest in knowing the location of registered sex offenders.” (Id. at p. 377; see Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1653 [disclosure that a prospective employee was listed on the Mega…

(Bergstein, supra, 236 Cal.App.4th at p. 804 ; see also Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [“the Supreme Court’s use of the phrase ‘illegal’ was intended to mean criminal, and not merely violative of a statute”]; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169 ; Cross, supra,197 Cal.App.4th at pp. 384-392 [rejecting plaintiff’s claim that defendant’s disclosure of location of registered sex offender co…