McClean v. Fishman CA6

Filed 6/9/14 McClean v. Fishman CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DONNA MCLEAN, H039366 (Santa Clara County Plaintiff, Cross-defendant and Super. Ct. No. 1-11-CV211316) Appellant,

v.

STUART FISHMAN,

Defendant, Cross-complainant and Respondent.

Plaintiff Donna McLean sued her former employer, attorney Stuart Fishman, alleging causes of action arising out of her employment and termination. After McLean was deposed in that action, Fishman filed a cross-complaint against her asserting causes of action for conversion, trespass to chattel, invasion of privacy, misappropriation of trade secrets, tortious interference with contract/relationship, and Labor Code violations. McLean moved to strike Fishman’s cross-complaint under the anti-SLAPP law, Code of Civil Procedure section 425.16,1 claiming that each cause of action arose out of protected activity, namely her rights to petition and free speech. The trial court granted the anti- SLAPP motion as to Fishman’s fifth cause of action for tortious interference, and denied it as to the other claims. McLean appeals, contending that Fishman’s five remaining causes of action arise out of protected activity within the meaning of section 425.16. We agree in part and reverse with directions.

1 Further unspecified statutory references are to the Code of Civil Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND McLean worked for Fishman at his law office from February of 2009 until July of 2011, when he terminated her employment. McLean sued Fishman for, among other things, wrongful termination. McLean gave deposition testimony in that action in July of 2012. Several months later, Fishman filed a cross-complaint against McLean. The cross- complaint alleged that McLean had admitted in her deposition to accessing, taking, and/or altering Fishman’s law office’s physical property, intellectual property, trade secrets, client property, and confidential information. The cross-complaint’s first through fourth and sixth causes of action--for conversion, trespass to chattel, invasion of privacy, misappropriation of trade secrets, and Labor Code violations, respectively--relied on McLean’s alleged admissions. The fifth cause of action, for tortious interference with attorney-client contracts and relationships, alleged that McLean had communicated false information to Fishman’s clients after she was fired, which induced them to terminate their relationships with Fishman. McLean filed a special motion, pursuant to section 425.16, to strike the cross- complaint as a SLAPP.2 She argued that Fishman’s first through fourth causes of action arose out of protected activity--her right to petition--because they were premised on statements she allegedly made in her deposition. She further urged that Fishman’s fifth cause of action arose out of her protected speech because it was based on statements she made to Fishman’s clients in connection with her lawsuit. As to the sixth cause of action, she maintained that it fell within the scope of the anti-SLAPP statute because it was predicated on both her protected deposition testimony and her protected communications with Fishman clients. The trial court granted in part and denied in part McLean’s anti-SLAPP motion. The court denied the motion as to the first through fourth and sixth causes of action, 2 “SLAPP” stands for “ ‘strategic lawsuits against public participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 (Navellier).)