An Arbitration Is Not an Official Proceeding Authorized by Law

Zhang v. Jenevein, No. B280047 (D2d7 Jan. 23, 2019)

Plaintiff here lost an arbitration where a clandestine recording of his conversation with Defendant was a key piece of evidence. Afterwards he sued defendant for violating Penal Code § 632, which prohibits recording confidential communications without everyone’s consent. Defendant filed an anti-SLAPP motion, which the trial court denied. The Court of Appeal here affirms. 

Defendant argued that the recorded statements were protective activity because they were made before or in connection with legislative, executive, or official proceedings, or any other official proceeding authorized by law. Code. Civ. Proc. § 425.16(e)(1), (2). Unfortunately for defendant, a bunch of cases have already held that an arbitration is not an official proceeding. Interestingly, Defendant didn’t argue that the taping was “in furtherance of” its arbitration efforts under § 425.16(e)(4). Cases have rejected that too, but other cases, albeit decided in a different context, have read (e)(4) as consistent with protecting seemingly unlawful conduct that “helps” first amendment protected activity. Indeed, that’s the issue that is pending in before the Supreme Court in the Wilson v. CNN case.

Affirmed.