Longs Drugs Stores California, Inc. v. Shea, 2005 WL 91682 (Cal.App. 1 Dist. Jan. 18, 2005)

Summary
Defendant Mary Shea represented parties in a prior lawsuit against plaintiff Longs Drugs Stores, Inc. ("Longs"), charging Longs with tortious conduct in questioning employees about suspected thefts. The nine plaintiffs in the underlying case claimed that they were fired by Longs after being subjected to abusive interrogations that led them falsely to confess to stealing from the company. The jury eventually awarded six plaintiffs $50,000 each for intentional infliction of emotional distress, and found for Longs on the other counts. The jury also returned a special verdict declining to award punitive damages. On that same date, Ms. Shea issued a press release in which she stated that she and her clients were pleased with the outcome of the litigation, indicating that Longs had failed to take action with respect to the underlying abuses, even after a former employee who had been interrogated had committed suicide and after dozens of other complaints.

Longs demanded that Ms. Shea retract the press release insofar as it implied that someone had committed suicide as a result of being interrogated by Longs. After Ms. Shea declined to do so, Longs sued Ms. Shea for libel and slander.

The evidence in the slander and libel action against Ms. Shea demonstrated that an employee of Longs, Ms. Koreen Brigman, had committed suicide two days after being interrogated by Longs. Ms. Brigman had signed a form agreeing to be interrogated and acknowledging that she was free to leave whenever she desired. In a written confession, Ms. Brigman estimated that she had caused Longs to lose approximately $261,000 by giving away merchandise. Ms. Brigman's husband believed that Longs was responsible for the suicide of his wife, and he sued Longs for wrongful death. Longs defeated the wrongful death claim after moving for summary judgment when Ms. Brigman's husband failed to respond to requests for admission.

Evidence of Ms. Brigman's suicide was excluded in the case brought by Ms. Shea on behalf of the other employees. Although the jury learned that Ms. Brigman's husband had sued Longs, it was not disclosed that that was a wrongful death suit.

Ms. Shea brought an anti-SLAPP motion to strike the claim against her, citing the California statutory litigation privilege. The Court of Appeal explained that there are two prongs to examining an anti-SLAPP motion to strike: 1) a threshold determination that the defendant has demonstrated that the challenged cause of action is one arising from protected activity, and 2) whether the plaintiff has demonstrated a probability of prevailing on the claim. The trial court had denied Ms. Shea's motion, holding that Longs had carried its burden of demonstrating a probability of prevailing on the claim.

The Court of Appeal examined the first prong, whether a claim that Longs caused Ms. Brigman's suicide was a "'public issue' for purposes of the anti-SLAPP law.”  Id. at *4. The Court explained that "the statute does not extend to all suits 'arising from any act having any connection, however remote, with an official proceeding'; the act 'must occur in connection with an issue under consideration or review in the proceeding',"  Id. at *5, quoting Paul v. Friedman, 95 Cal.App.4th 853, 856 (2 Dist. 2002).

As demonstrated by the facts, Ms. Brigman's suicide was not at issue in the underlying plaintiffs' claims against Longs, which Ms. Shea handled and about which she was commenting in the press release. In addition, although the underlying case handled by Ms. Shea against Longs received some publicity, it was not clear that the interrogation process was subject to widespread public interest. Longs, supra,   at *6. Accordingly, Longs' claims for libel and slander could withstand Ms. Shea's motion to strike since the causes of action did not arise from an act in furtherance of the right of petition or free speech in connection with a public issue as required by the California anti-SLAPP statue. Id. at *8.

Significance of the Case
Statutory protection against claims of slander or libel may be narrower than some attorneys think. Even if a lawyer’s comments are fairly closely related to the underlying proceeding (as was true here), an attorney may potentially be held liable for his or her comments about factual issues not directly involved in the underlying proceeding.

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