1 Filed 9/5/13 Taylor v. Cal. Air National Guard CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

----

GARY TAYLOR, Plaintiff and Appellant,

v.
CALIFORNIA AIR NATION AL GUARD et al., Defendants and Respondents. C070759 (Super. Ct. No. 3420110011067 0CUPOGDS)

Plaintiff Gary Taylor, a member of the California Air National Guard, filed suit against defendants California National Gu ard and California Air National Guard (National Guard), Colonel John Crocke r, and Major Thomas Keegan alleging defamation. Taylor’s claims stemmed from an interview given to a Sacramento Bee reporter by Crocker and Keegan regarding an investigation into allegations that National Guard pilots, including Taylor, were receivi ng dual compensation. Defendants filed a demurrer and a motion to strike under Code of Civil Procedure section 425.16, the anti-2 SLAPP statute. 1 The trial court granted the motion to strike, finding Taylor’s defamation claim arose from defendants’ protected activity . Taylor appeals, arguing Crocker’s and Keegan’s statements were not protected speech , and he can prevail on the merits of his claim. We shall a ffirm the judgment. FACTUAL AND PROCED URAL BACKGROUND In 1982 Taylor enlisted in the National Guard. He earned his pilot wings in June 1985 and served as a fighter pilot, in structor pilot, evaluation pilot, squadron commander, and operations group commander. In September 2009 Taylor was appointed commander of the 144th Fighter Wing in Fresno. The 144th was in charge of performing air sovereignty alert duties. In March 2010 a federal audit team fro m the National Guard Bureau conducted an audit of the air sovereignty alert mission at the 144th Fighter Wing. The audit team found that “ ‘in some cases, p ilots may have received pay twice in one day (pay for alert duty and pay for regular technician work, a lthough not necessarily for the same 8-hour period.’ ” Alert duty pay boos ted some pilots’ annual salari es by tens of thousands of dollars. In response to the audit, Taylor request ed a legal review of the negative finding by the Staff Judge Advocate of the National Guar d to determine whether the pay issue was in compliance with military regulations. On June 1, 2010, the Staff Judge Advocate prepared a written legal opinion which concluded that Taylor and the 14 4th Fighter Wing acted reasonably and within thei r proper authority in executing their mission, and that any technical violations were well within the legal interpretations contained in the relevant regulations.

1 Strategic Lawsuit Against Public Participat ion; all further statutory references are to the Code of Civil Procedure unless otherwise designated.3 However, as a result of the audit, Tayl or was removed from his position as the 144th Fighter Wing commander in July 2010 and returned to his position as a member of the National Guard. He rema ined a member of the Nationa l Guard until November 2011. At all times material to the complain t, Colonel Crocker was the Director of Government and Public Affairs of the Nationa l Guard; Major Keegan was a public affairs officer with the National Guard. In December 2010 Crocker an d Keegan met with a Sacram ento Bee reporter at the National Guard headquarters. The reporter stat ed he was investigating allegations that some 144th Fighter Wing pilots were “ ‘doubl e dipping’ ” in viola tion of United States law and military regulations. The reporter’s source was the 2010 federal audit. The comments made by Crocker and Ke egan during this interview fo rm the basis of Taylor’s defamation action. Taylor filed suit, alleging defamation ag ainst defendants. According to Taylor, Crocker told the Sacramento Bee reporter, “ ‘T here is at a minimum an appearance that (commanders) self-enriched, and boy, does that smell bad.’ ” Crocker stated: “[F]rom a criminal standpoint, we’ll have to wait and se e,” but “from a leadership standpoint, there is no waiting and seeing.” Acco rding to Crocker, Brigadier General Mary J. Kight, the California National Guard’s top commander, had lost “ ‘full faith and credit in Taylor’s leadership skills.’ ” Crocker al so theorized that the imprope r payments might reach into the millions of dollars. Crocker also stated the pilots that were grounded because of the alleged improper payments might have been confused about the law and relied on Taylor’s guidance. Crocker told the reporter that “ ‘the money is less of an issue than the leadership, in my book. And General Kight fixed that.’ ” Taylor’s complaint also alleged defendants told the reporter he was under criminal investigation and had violated both United States law and military regulations. Keegan stated General Kight had ordered an audit of all National Guard units, but no other4 compensation problems had come to light. In addition, Taylor claimed Lieutenant General Harry Wyatt ratified Crocker’s and Keegan’s statements when he told the reporter, “ ‘I have great faith and confidence in the men and women of the 144th Fighter Wing. These are certainly trying times for the rank and file. It’s unf ortunate the alleged actions of a few have brought discredit to those men and women.’ ” Defendants filed a demurrer and “Motion to Strike/Anti-SLAPP.” Taylor opposed the motion. Following oral argument, the trial court granted defendants’ mo tion to strike. The court found Taylor’s defamation claim arose from defendants’ protected activity under section 425.16. According to the court, de fendants’ statements to the Sacramento Bee reporter constituted acts in furtherance of thei r right to free speech in connection with a public issue. In addition, defendants’ statem ents were made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or made in a public forum in connection with an issue of public interest. The court also determined Taylor failed to establish a probability of prevailing on his defamation claim. Defenda nts’ statements were privile ged within the meaning of Civil Code section 47, and de fendants were immune under Military and Veterans Code section 392. Taylor filed a timely notice of appeal. DISCUSSION Anti-SLAPP Motions Subdivision (b)(1) of section 425.16 sets forth the elements of an anti-SLAPP motion. It provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right to petition or free sp eech under the United States Constitution or the California Constituti on in connection with a public issue shall be subject to a special motion to strike, unle ss the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”5 Protected acts include any oral statement made in connection wi th an issue under consideration or review by a legislative, exec utive, or judicial body; any oral statement made in a public forum in co nnection with an issue of pu blic interest; or any other conduct in furtherance of the exercise of free speech in connection w ith a public issue. (§ 425.16, subd. (e)(2), (3), (4).) Governmental employees may seek dismissal under section 425.16 because they are persons within the mean ing of the statute. ( Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114.) “[I]f government has a legitimate role to play in the interchange of ideas . . . then government should have some measure of protection in performing that role, at least as to matters of public interest.” ( Id . at p. 1115.) Section 425.16 requires the trial court to engage in a two-step process to determine whether to grant or deny a defendant’s anti- SLAPP motion. First, the court considers whether the defendant has made a threshold showing that the challenged cause of action arises from a protected activity. (§ 425.16, subd. (b)(1).) Th e defendant bear s the burden of showing the plaintiff’s cause of action ar ises from the defendant’s exercise of free speech or petition rights as defined in secti on 415.16, subdivision (e). If the defendant makes this threshold showing, the burden shif ts to the plaintiff to make a prima facie showing of facts that, if credite d by the trier of fact, would sustain a favorable judgment. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 61.) We review de novo a trial court’ s ruling on a motion to strike under section 425.16. “Whether section 425.16 a pplies and whether the plaintiff has shown a probability of prevailing are both review ed independently on appeal.” ( ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) On a motion to strike under section 425.16, every legitimate inference must be drawn from the plaintiff’s evidence. ( Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 828.) However, we must interpret6 the anti-SLAPP statute broadly in order to en courage participation in matters of public significance. (§ 425.16, subd. (a).) Protected Activity The statements made by Cr ocker and Keegan that Ta ylor claims defamed him were made to a newspaper reporter and con cerned an investigation by the National Guard into payment irregularities. As such, these statements were protected speech under section 425.16, subdivisions (e)(2), (3), and (4). Section 425.16, subdivision (e)(2) enco mpasses any cause of action against a person arising from any statement or writing made in, or in conn ection with, an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding or body. ( Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734.) Defendants’ comments concerned the audit and investigation by the National Guard Bureau. They ma de their statements to a newspa per reporter, and the statements were reported in the press, a public forum. In addition, the allegedly defamatory remarks concerned an issue of public interest: an investigation into the propriety of payments made to military employe es with tax dollars. Taylor disagrees with the trial court’s determination that Cr ocker’s and Keegan’s statements to the Sacramento Bee reporter we re protected speech. According to Taylor, defendant’s statements to the press were “in direct violation of m ilitary regulations which define their duties.” In support of his claim, Taylor cite s Air Force Instruction (AFI) No. 35-104, which provides that all public affairs personn el will closely consult with the Staff Judge Advocate prior to releasing pretrial publicity. AFI No. 35-104 also directs personnel to avoid “ ‘sensationalism, exaggeration, and the us e of the term “criminal[”] ’ ” and not to use words “ ‘prejudicial to th e accused before trial.’ ” Taylor asserts compliance with AFI No. 35-104 is mandatory. During oral argument, Taylor’s counsel stated,7 “Article 92 of the Uniform Code of Military Justice makes it a crime to violate military regulations.” Taylor contends: “Clearly there exist cer tain restrictions on the exercise of First Amendment rights in the military that are not applicable to ci vilian members of society. Both Crocker and Keegan were trained public affairs officer[s], to whom the regulations applied.” The trial court disagreed, finding that if defendants’ statements violated military regulations, “such regulatory violations would not be subject to the rule of Flatley [ v. Mauro (2006) 39 Cal.4th 299 ( Flatley )] because they do not rise to the level of inherent ‘criminal illegality’ as a matter of law.” In Flatley , the plaintiff, an entertainer, sued the defendant attorney, citing a letter sent by the attorney on behalf of a client who accused the plaintiff of rape. Subsequently, the atto rney demanded money to settle his client’s claims against the plaintiff. The a ttorney brought a motion to strike. The Supreme Court held that the anti-SL APP statute does not protect speech that is conclusively shown or conceded to be “illegal as a matter of law.” ( Flatley , supra , 39 Cal.4th at p. 317.) Such speech is not a valid exercise of the constitutional right of petition or free speech. ( Id . at p. 320.) The court concluded: “a defendant whose assertedly protected speech or petitioning ac tivity was illegal as a matter of law, and therefore unprotected by constitu tional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff’s complaint.” ( Id. at p. 305.) The illegal conduct at issue in Flatley was criminal extortion, which the court found not a constitutionally prot ected form of speech. ( Flatley, supra, 39 Cal.4th at pp. 330, 332.) Therefore, a defendant moving to strike a plaintiff’s complaint under the anti-SLAPP statute cannot show the plainti ff’s cause of action arises from an act in furtherance of the defendant’s protected sp eech rights if the evidence conclusively establishes as a matter of law, or the defend ant concedes, the illegality of the defendant’s conduct on which the cause of action is based. However, if there is a factual dispute as to8 the illegality of the defendant’s conduct, we cannot conclude that the conduct was illegal as a matter of law, and we proceed to dete rmine whether the defendant has established a probability of prevailing. ( Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1168-1169.) An alleged violation of AFI No. 35-104 does not rise to the level of inherent criminal activity as a matter of law. Defendants’ statemen ts may violate the mandatory military regulations, but they do not cons titute criminal activity as described in Flatley

. Flatley does not extend to noncriminal conduct, even if that conduct may violate the law (e.g., a common law standard of condu ct or statutory prohibition). ( Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.Ap p.4th 962, 971; G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616.) Plaintiff argues military regulations are treated differently and cites Parker v. Levy (1974) 417 U.S. 733 [41 L.Ed.2d 439] ( Parker ). In Parker , an army officer refused to obey orders to train Special Forces troops and made public stat ements urging Negro enlisted men not to go to Viet Nam if ordered to do so. He also described Special Forces personnel as liars, thieves, killers of peas ants, and murderers of women and children. The officer was convicted by a general court-mar tial of violations of the Uniform Code of Military Justice for willfully disobeying a lawful command of a superior officer and conduct to the prejudice of good order and discipline in the armed forces. ( Id . at pp. 736- 738.) The officer argued his speech was protected by the First Amendment of the United States Constitution. The Supreme Court disagr eed, finding: “While the members of the military are not excluded from the protecti on granted by the Fi rst Amendment, the different character of the military commun ity and of the military mission require a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of di scipline, may render pe rmissible within the military that which would be co nstitutionally impermissible outsi de it. Doctrines of First9 Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the ope ration of these principles.” ( Parker , supra , 417 U.S. at p. 758.) Taylor argues defendants cannot engage in conduct that is unlawful, as in Parker , and then argue it is protected speech: “Crock er and Keegan could a nd should have been court-martialed under the UCMJ [(Uniform Code of Military Justice)] for failure to obey a military regulation and for engaging in conduct unbecoming an officer, both of which carry a punishment of imprisonment. [¶] . . . The government cannot have it both ways. The government chose to proscribe the very conduct Crocker and Keegan engaged in. Therefore it was not protected speech.” However, Parker does not abrogate or alter Flatley . Defendants’ conduct may or may not have run afoul of military regula tions, but it did not constitute the illegal criminal conduct that Flatley found not to be protected speech. Ability to Prevail on the Merits We next consider whether Taylor has a probability of prevailing on his defamation claim. A plaintiff establishes a probability of prevailing on the clai m by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff’s favor. We do not weigh the evidence but determine wh ether, as a matter of law, the evid ence is sufficient. We must consider not only facts supported by direct ev idence, but also facts that reasonably can be inferred from the evidence. ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820; Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) Defendants can defeat Taylor’s evidentiary showing by presentin g evidence that establishes as a matter of law that he cannot prevail. ( Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Taylor argues the tria l court erred in finding Feres v. United States (1950) 340 U.S. 135 [95 L.Ed. 152] ( Feres ) barred his defamation claim. In Feres , the Supreme Court held that members of the armed for ces may not bring tort lawsuits under the10 Federal Tort Claims Act (Tort Claims Act; 28 U. S.C. § 2671 et seq.) for physical injuries that “arise out of or are in the course of activity incident to service.” ( Feres , supra , 340 U.S. at p. 146.) While the Feres case and its holding—that Congress did not intend to extend the remedies of the Tort Claims Ac t to servicemen where the injuries arise out of or are in the course of activity incident to service—concerned the Tort Claims Act, the rationale of Feres has been applied to a wide vari ety of statutory and constitutional claims. Thus, the “ Feres doctrine” has a wider ambit than the Feres case. “ Feres quite simply offers a template fo r construing a general statute as applied to active duty members of the military.” ( Estes v. Monroe (2004) 120 Cal.Ap p.4th 1347, 1354 ( Estes ).) Moreover, “[i]t is be yond question that the Feres doctrine generally applies to claims brought by National Guard me mbers. [Citations.]” ( Stauber v. Cline (9th Cir. 1988) 837 F.2d 395, 399.) Under Feres , a service member may not bring an action against the government or armed service personnel for in juries when such a legal action would require a civilian court to examine decisions regarding manageme nt, discipline, supervis ion, and control of the armed forces. While the Feres doctrine has been broadly construed as creating an immunity ( Hodge v. Dalton (9th Cir. 1997) 107 F.3d 705, 710; Zaputil v. Cowgill (9th Cir. 2003) 335 F.3d 885, 887), other co urts suggest “immunity” is not the proper term ( Estes , supra , 120 Cal.App.4th at p. 1355). Ho wever, the result is the same: a member of the military is not permitted to recover in tort for injuries th at arise out of or in the course of activity inci dent to service. (See Feres , supra , 340 U.S. at p. 146.) We consider two factors to determine whether Feres applies to Taylor’s claims: (1) whether Taylor was a member of the Unite d States armed forces at the time he was injured, and (2) whether Tayl or’s injury arose from or o ccurred in the course of an activity incident to military service. ( McGowan v. Scoggins (9th Cir. 1989) 890 F.2d 128, 132 ( McGowan ).) To make this determination, we examine the totality of the circumstances, including where the act occurred, th e duty status of Taylor at the time, the11 benefits accruing to Taylor from his military status, and the nature of Taylor’s activities at the time. ( McConnell v. United States (9th Cir. 2007) 47 8 F.3d 1092, 1095 ( McConnell ).) The trial court found the Feres doctrine applied “because the action would require this civilian court to examine decisions regarding management, supervision, and control of members of the armed forces, or may in trude in military affairs and second-guess military decisions. At a minimum, plaintiff’s claim would or could include inquiries into the application and effect of numerous military regulations on the dual status pay matter, the propriety of a military audit, the author ity and limitation of military public affairs officers to make statements on behalf of the [National Guard], and the decision of a commanding officer to relieve another from co mmand.” The court also found the subject matter of the alleged defamatory statements arose directly fro m Taylor’s military service and Taylor was not separated fro m his military service or status at the time of defendants’

statements. Taylor disputes these conclusions. He ar gues that at the time defendants made the defamatory statements, he wa s not subject to military cont rol, under compulsion of military orders, nor was he performing any m ilitary mission. Instea d, Taylor contends, he was a civilian airline pilot who had not performed any military function for over two months. To the contrary, Taylor was a member of the National Guard until November 2011. Defendants’ alleged defama tory statements were made on December 7, 2010. Feres applies to persons who are members of the armed forces at the time of injury; Taylor’s discharge to ok place almost a year after defendants made the alleged defamatory statements to the Sacramento Bee. 2

2 Taylor concedes that at the time the st atements were made, “he was no longer a fulltime employee of the California Air Nationa l Guard, but was instead a part-time12 Taylor also disagrees with the court’s fi nding that his injury was incident to his service. He reasserts his argument that “[t]he nature of plaintiff’s activities at the time of the act was that he was a civilia n airline pilot living in San Diego. At the time of the act he was not subject to military author ity, and his employ ment had ended.” We disagree. Taking into considerati on the factors enumerated by the court in McConnell , we agree with the trial court’s finding that the alleged defamatory statements were incident to Taylor’s se rvice in the National Guard. Defendants made the statements while on a military installation. The statem ents refer to Taylo r’s status as a wing commander at the 144th Fighter Wing. The subj ect matter of the stat ements was military payments made to Taylor, and the statements relate directly to his performance as wing commander. However, Taylor argues that for Feres to apply he must have been “on orders” at the time of the injury. In support, Taylor relies on Johnson v. United States (9th Cir. 1983) 704 F.2d 1431 ( Johnson ); McGowan , supra , 890 F.2d 128; Brooks v. United States (1949) 337 U.S. 49 [93 L.Ed. 1200] ( Brooks ); and United States v. Brown (1954) 348 U.S. 110 [99 L.Ed. 139] ( Brown ).
In McGowan, a retired army captain was involved in an auto accident on an Air Force base while conducting a pers onal errand. The court found the Feres doctrine inapplicable to the cap tain’s claim, since his injuries were not incident to his military service. ( McGowan, supra, 890 F. 2d at p. 129.) Similarly, in Johnson, a member of the armed forces was injured in an auto accident. The plainti ff and the driver, both on active duty, worked as bartenders at an o fficers club during off-duty hours. ( Johnson , supra , 704 F.2d at p. 1433.) In finding Feres inapplicable, the court de termined the plaintiff’s off-duty work as a bartender “bears no su ch relevant relationship to the military

guardsman, and had long been relieved of his command.” Ho wever, the dispositive fact is that he remained a memb er of the National Guard.13 disciplinary structure that the Feres doctrine was meant to safeguard.” ( Johnson , at p. 1438.) The plaintiff in Brooks , also a member of the armed services, was injured when his car was hit by a United States Army truck. ( Brooks, supra, 337 U.S. at p. 50.) The Supreme Court found the plaintiff’s injury did no t arise out of or in the course of military duty. ( Id. at p. 52.) In Brown , a discharged veteran brou ght suit for negligence by physicians at a Veterans Administration hospital. ( Brown , supra , 348 U.S. at pp. 110- 111.) The court found Feres did not apply: “We adhere also to the line drawn in the
Feres Case between injuries that di d and injuries that did not arise out of or in the course of military duty.” ( Brown , at p. 113.) Another traffic accident claimed the life of a naval officer in Mills v. Tucker (1974) 499 F.2d 866. The officer was killed on a roadway maintained by the Navy and adjacent to a naval depot. The court found Feres inapplicable since the officer was on furlough the day of the accident and returning from a civilian job “ ‘moonlighting’ as a fry cook.” ( Mills , supra , 499 F.2d at pp. 867-868.) The court found Feres did not apply, since the officer was “only in the remotest sense subject to military discipline.” ( Mills , at p. 867.) The court distinguished accidents on base, noting the accident site was not part of the naval depot. ( Id. at p. 868.) In contrast to the cases cited by Taylor, most of which involve auto accidents and activities not involved with m ilitary service, here Taylor’s claims center on comments made by military personnel concerning a militar y investigation and a udit into payments made to military personnel. These di fferences militate a different result. As the trial court noted, in Meagher v. Heggemeier (D.Minn. 2007) 513 F.Supp.2d 1083, 1097-1098, the court applied Feres to a defamation claim asserted by a retired colonel in the National Guard stemming fro m comments made in a meeting at which other officers were present and where the colonel’s application for a National Guard position was being considered. ( Meagher , at pp. 1086-1087.) The court concluded: “We recognize that not every purported defa matory comment, by one military employee14 against another, would necessarily implicate the Feres doctrine, since the purported defamation could be wholly unrelated to mili tary service. Here, however, the alleged defamation was assertedly made solely in the context of a military promotion decision, by a member of the Board tasked with deciding who should be promoted, and in the very proceedings in which he was ap pointed to participate. Th e interrelationship between the defamation action, and military service, is dir ect, and avoidable, as Heggemeier is plainly being sued for his acts as a m ilitary man. . . . Accordingly, we find no ground, in this case, to ignore the clear precedent surrounding the Feres doctrine, so as to interfere in an intra-military decision that arose in th e context of a personnel decision.” ( Id . at pp. 1097- 1098.) Notwithstanding the authorities cited by Ta ylor, his claim in the present case centers on comments made by de fendants regarding his military service and his abilities as a commander. These alleged defamatory comments fall squarely within the purview of Feres. Therefore, we agree with the trial court’s finding that Feres bars Taylor’s claim of defamation based on defendants’ statem ents regarding the audit and subsequent actions by the military. 3
DISPOSITION The judgment is affirmed. Defenda nts shall recover costs on appeal.

RAYE , P. J.

We concur:

BUTZ , J.

DUARTE , J.

3 Since we find Feres bars Taylor’s claims of defama tion against defendants, we need not address Civil Code section 47, subdivis ion (b) or Military and Veterans Code section 392.