A Trade Association Is Not an Official Proceeding

Kettler v. Gould, No. B282160 (D2d8 Apr. 20, 2018)

Some Heirs are upset with the Trustee who manages their late parents’ trust, to which Heirs are beneficiaries. Heirs complained about Trustee’s conduct, quite vociferously. They accused him of embezzlement, elder abuse, perjury, and a bunch of other bad stuff to, among others, FINRA, the California Department of Insurance, the Certified Financial Planners Board of Standards, Trustee’s employer, and an insurance company.

When Heirs sued Trustee for mismanagement, Trustee cross-claimed for defamation. Heirs responded with an anti-SLAPP motion. The trial court granted the motion on the claims directed to public agencies—FINRA and the DOI—because statements to those agencies are protected under Code of Civil Procedure § 425.16(e)(1) and (2). But as to the remaining recipients—the CFP Board, Trustee’s employer, and the Insurer—the court denied the motion because even if the statements were “other conduct in furtherance” under § 425.16(e)(4), the accusations Heirs made were insufficiently connected to an issue of public concern, and this did not “arise from protected activity.” Following the Supreme Court’s holding in Baral v. Schnitt—requiring the parsing of separate “claims” within a single cause of action for anti-SLAPP purposes—the trial court struck the FINRA and DOI statements from the complaint and permitted the rest proceed.

On Heirs’ appeal of the partial denial, the Court of Appeal affirms. The principal dispute is whether the CFP Board is an “official proceeding authorized by law.” It isn’t. It’s a private standards setting and advisory body to the financial planning industry. It is not a government entity, its procedures are not required by law, and its decisions are not subject to review by administrative mandate. Those qualities distinguish it from other kinds of bodies—such as peer review committees at public hospitals—that have been found sufficiently “official” to fall within § 425.16(e)(1) and (2). And since Heirs’ complaints about Trustee were limited to his role in their inheritance—they made no claim he was acting similarly with regard to his other clients—the allegations addressed only an issue of private, not public, concern.

Finally, Heirs argued that their statements to Trustee’s employer were sufficiently related to threats of litigation that they are “in connection with” a litigation and thus protected under § 425.16(e)(2). But that’s not the case either. Noting in the contents correspondence contained any threat or intimation that litigation was contemplated. The fact that litigation on the issue was, in fact, later filed was not enough to connect the communications and the litigation.

Affirmed.