1 Filed 9/17/14 Reif v. Cal. Congress of Parents et al. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

RACHEL REIF, Plaintiff and Appellant,

v. CALIFORNIA CONGRESS OF PARENTS, TEACHERS, AND STUDENTS, INC. et al., Defendants and Appellants; MARILYN ORENS, Defendant and Respondent. E056902 (Super.Ct.No. RIC206139) OPINION

APPEAL from the Superior Court of Rivers ide County. Daniel A. Ottolia, Judge. Dismissed. Cihigoyenetche, Grossberg & Clouse, Anthony C. Ferguson and Richard R. Clouse, for Defendants and Appellant s and Defendant and Respondent. Walker Trial Lawyers LLP, Barry M. Wa lker and Amy M. Oakden. for Plaintiff and Appellant Rachel Reif.2 Rachel Reif (plaintiff) was termin ated from her position as a Health Educator/Health Services Assistant for th e Riverside County Department of Public Health, Injury Pr evention Services—Safe Routes to School (“SRTS”) program. She then brought suit against California Congress of Pa rents, Teachers and Students, Inc. (PTA), Sandra Ramirez (Ramirez), Marilyn Orens (Orens), Sherri Power (Power), and Lauri Byers (Byers) (collectively, de fendants), alleging four causes of action: defamation, as well as intentional and neglig ent infliction of emotional di stress against all defendants, and negligence (failure to s upervise) against PTA only. The present appeal and cross-appeal aris e from the trial court’s order granting in part and denying in part defenda nts’ special motion to strike the complaint as a strategic lawsuit against public participation (anti- SLAPP motion) pursuant to Code of Civil
Procedure 1 section 425.16 (the anti-SLAPP statute ). The court granted the motion only with respect to Orens, striking the claims asserted against her. The motion was denied with respect to all remaining defendants. Defendants (with the exception of Orens) appeal the partial denial of their antiSLAPP motion, contending the court erred wh en it determined the statements allegedly made by Byers, Ramirez, and Power were no t protected under the anti-SLAPP statute. Plaintiff cross-appeals the par tial grant of the motion with re spect to Orens, contending the trial court erred by treating her alleged statements as protected under the anti-SLAPP statute. We would have affirmed in part and reversed in part the trial court’s order,

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.3 finding that defendants’ anti-SLAPP motion shou ld have been granted with respect to all defendants. However, after this case was full y briefed, our tentative opinion mailed to the parties, and oral argument had been schedu led at the request of plaintiff and appellant, we received requests for dismissal of the ap peals. We therefore dismiss the appeals.
I. FACTS AND PROCEDURAL BACKGROUND 2 In 2008, plaintiff became pr esident of the PTA chapter at Mark Twain Elementary School in Riverside. In the fall of 2009 , after a transition from one PTA treasurer to another, it was determined that plaintiff had received certain reimbursements in error, and there were also some missing receipts. 3 Plaintiff attributes th ese mistakes to accounting errors by the former treasurer, and contends th at she returned all mo ney mistakenly paid to her (about $800 total). Nevertheless, th e principal of Mark Twain Elementary School asked plaintiff to step down as PTA president, stating that she had been directed to make this request by the 23rd District PTA. Plai ntiff resigned, as requested, without conceding any wrongdoing. The resignation did not, however, put an end to the matter. After her resignation, plaintiff alleges Power—who ha d preceded plaintiff as PT A president at Mark Twain Elementary, and who had first brought the mi staken payments to plaintiff’s attention—

2 We derive our summary of facts fr om the complaint a nd from the evidence submitted in support of and ag ainst the anti-SLAPP motion.

3 The complaint places the date of these events as fall of 2 008, but plaintiff’s declaration submitted in support of her o pposition to defendant s’ anti-SLAPP motion indicates fall 2009. Given the further informa tion that these events occurred in plaintiff’s “second term as PTA President,” it appears fall of 2009 is more probably the correct date. In any case, the date is not material to th e substantive issues ra ised by the parties.4 spread rumors about plaintiff’s purported fi nancial misconduct, including stealing from
the PTA. 4 In a November 2009 meeting with PTA representatives—Byers, who was then the PTA Riverside Council President, partic ipated, among others—plaintiff asked for an opportunity to formally clear her name; how ever, no charges were ever filed, nor any formal proceeding of any sort held. Several years later, in January 2012, plai ntiff was hired by SRTS program to serve as a health educator/health se rvices assistant. On Februa ry 20, 2012, plaintiff made a presentation at a meeting held at Jefferson Elementary Scho ol about the SRTS program, and in particular about a new barcode system for tracking children who walk or ride their bicycles to school. In additio n to plaintiff’s presentation, th e meeting included a raffle to “persuade more volunteers to attend the meeting,” the prizes for which (an iPod and digital camera) had been donated by the Je fferson Elementary principal. Plaintiff characterizes the meeting as “a success,” leav ing plaintiff and her coworkers, as well as the principal of Jefferson Elementary, “exc ited” about the new program, which was projected to start a few w eeks later, on March 7, 2012. Before the new system could be impl emented, however, defendants allegedly made certain statements that re sulted in plaintiff’s terminati on. Plaintiff contends Power and Ramirez told Orens, then the Riverside Council PTA pr esident, that plaintiff had embezzled money from the PTA and as a result had been “i nvolved with the police.”

4 It should be noted that these alleged statements by By ers in 2009 are apparently pleaded as background information, and not as the basis for any claim. Though allegations relating to the events of 2009 are incorporated by refere nce into plaintiff’s causes of action, the statements that are the explicitly pleaded basis for plaintiff’s claims are those from February 2012, described below.5 Orens conveyed those statements to plaintiff’s supervisor, Ga il Carlson, in a February 21, 2012, phone call, and indicated that PTA and Riverside County Unified School District would not support the SRTS program if plaintiff c ontinued to be involved. Additionally, plaintiff contends that By ers contacted the Jefferson Elementary School principal conveying th e same information: that plaintiff had embezzled money from the PTA and as a result had been “involve d with the police.” On February 22, 2012, plaintiff’s supervisor allegedly learned that the principal, who previously had been actively supportive of the program, had been “i nstructed” by Byers and the 23rd District PTA not to participate in the SRTS program if plaintiff was involved. Plaintiff explained to her supervisor, Ga il Carlson, her perspective on the events that led to her resignation as PTA president and the rumors that had spread after her resignation. Plaintiff also explained that no formal charges had ever been brought, police had never been involved, and that there had been no formal proceeding of any sort in which she could defend herself or clear her name. Nevertheless, on February 28, 2012, plaintiff was terminated because she was not able to work effectiv ely with the schools and, according to the declaration of her superv isor, “as a direct result of the information received from representatives of the PTA.” Plaintiff’s complaint, allegi ng four causes of action, was filed on April 24, 2012. Three causes of action—the first, third, and fourth, for defamation, intentional infliction of emotional distress, and ne gligent infliction of emotional distress, respectively—are asserted against all defendants. Plainti ff’s second cause of action, for “Negligence (Failure To Supervise),” is asserted only against PTA.6 Defendants’ anti-SLAPP motion was filed on June 5, 2012. After a hearing on July 12, 2012, in a written order filed August 6, 2012, the court gr anted the motion with respect to Orens and struck th e claims asserted against her. The court found that Orens’s alleged statements were protected under the anti-SLAPP statute, and there was no likelihood of success on the meri ts due to the litigation privilege. The court denied the motion in all other respects, finding the statem ents alleged to have been made by other defendants not to be protecte d under the anti-SLAPP statute.
II. DISCUSSION A. Overview of Anti-SLAPP Motions Courts construe the anti-SLAPP statute br oadly to protect the constitutional rights of petition and free speech. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199.) In ru ling on an anti-SLAPP motion, the trial court conducts a two-part analysis: the moving party bears th e initial burden of establishing a prima facie case that the pl aintiff's cause of action arose from the defendant's actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the moving party meets its burden, the burden shifts to the plaintiff to establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Flatley v.
Mauro (2006) 39 Cal.4th 299, 314 ( Flatley ).) A defendant meets its threshold burden of demonstrating that a cause of action arises from protected activity by showing that the act or acts underlying the claim fit one or more of the four categories describe d in section 426.16, subdivision (e). ( Navellier v.7 Sletten (2002) 29 Cal.4th 82, 88.) These categories include “any written or oral statement or writing” that is “made before a legislative, executive, or judici al proceeding, or any other official proceeding authorized by law” (§ 425.16, su bd. (e)(1)), “made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law” ( id. , subd. (e)(2)), or “made in a place open to the p ublic or a public forum in connection with an issue of public interest” ( id. , subd. (e)(3)), as well as “any othe r conduct in furt herance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” ( id. , subd. (e)(4)). “‘“A plaintiff cannot frustrate the pur poses of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” [Citation. ] Conversely, a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to sp eech or petitioning activity by the defendant. [Citation.] [Thus] it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collate ral allusions to prot ected activity should not subject the cause of action to the anti-SLAPP statute.’ [Citation.]” ( Raining Data Corp. v. Barrenechea (2009) 175 Cal.Ap p.4th 1363, 1369 ( Raining Data Corp ).) Additionally, “a plaintiff cannot avoid operati on of the anti-SLAPP st atute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim8 when in fact the liability claim is predicated on protected sp eech or conduct. [Citation.]” ( Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 ( Ramona ).) “‘Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider “t he pleadings, and supporting and opposing affidavits . . . upon which the liability or de fense is based.” [Citation.] However, we neither “weigh credibility [nor] co mpare the weight of the evid ence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determ ine if it has defeated that submitte d by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” ( Flatley , supra , 39 Cal.4th at pp. 325-326.) The plaintiff's evidence in support of its showing on th e second part of the antiSLAPP analysis must be sufficient to support a judgment in its favor if proved at trial. ( Lam v. Ngo (2001) 91 Cal.App.4th 832, 845.) Unde r section 425.16, the merits of the lawsuit are evaluated “using a summary-judgmen t-like procedure at an early stage of the litigation.” ( Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) Plaintiff incorrectly asserts we should instea d perform an analysis similar to that on demurrer, accepting the allegations of the complain t as true and viewing them in the light most favorable to plaintiff. But it is well established that “a plai ntiff opposing an antiSLAPP motion cannot rely on alle gations in the complaint, but must set forth evidence that would be admissible at trial.” ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699 ( Overstock ).) Even if the compla int in this case were verified—it is not—the allegations therein would be insufficient to sa tisfy the second step of the anti-SLAPP analysis. ( Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th9 418, 426.) The pleadings are relevant to the fi rst step of the analysis, that is, determining whether the causes of action that are the subject of the anti-SLAPP motion arise from protected activity. (See, e.g., Garretson v. Post (2007) 156 Cal.App.4th 1508, 1522 ( Garretson ) [Fourth Dist., Div. Two] [analyzing “p leadings and other related documents” to determine whether cause of ac tion arose from protected activity].) B. Analysis The gravamen of each of the causes of action asserted in th e complaint is that plaintiff was injured by statements made by Orens, Power, Ramirez, and Byers. (See Raining Data Corp. , supra, 175 Cal.App.4th at p. 1369 [“it is the principal thrust or
gravamen of the plaintiff’s cause of action th at determines whether the anti-SLAPP statute applies . . . .’”].) Th e first cause of action for defa mation obviously does so most directly. Plaintiff’s third and fourth cause s of action, for intentional and negligent infliction of emotional distress, too, assert only claims of injury from the publication of the statements by the individual defendant s. Plaintiff’s claims against the PTA— including the second cause of action for neg ligent supervision assert ed only against the PTA, as well as the remaining three causes of action asserted against “all defendants”— all rest on the theory that the PTA is respon sible, one way or another, for the injurious statements made by the individua l defendants. No allegations that the PTA published any
statements of its own are included. 5

5 The trial court remarked that it saw “no reason why the se cond cause of action for negligent supervision falls under any porti on of the anti-SLAPP statute.” But we do: the gravamen of the negligen t supervision cause of action is that the individual defendants made certain statements that harm ed plaintiff, and that the PTA is responsible [footnote continued on next page]10 Our analysis of whether the anti-SLAPP stat ute applies, therefore, must begin with analysis of whether the alleged statements by each of the individual defendants fall within subdivision (e) of section 425.16. We will then turn separa tely to the second prong of the SLAPP analysis , probability of success. 1. Statements by Orens to Plaintiff’s Supervisor The trial court, relying on Lee v. Fick (2005) 135 Cal.App.4th 89 ( Lee ), found that the statements by Orens to plaintiff’s supe rvisor are protected activity under section 425.16, subdivision (e)(1). We agree with th e trial court’s analysis, and expand upon it below, finding the statements protected under both subdivision (e)(1) and, in the alternative, su bdivision (e)(4). There is no question that the plaintiff’s fo rmer employer is an o fficial agency, as a subdivision of the Riverside County government. Indeed, plaintiff has not challenged the trial court’s finding that the County possesses th e “quasi-judicial power” that is one of the possible bases for considering any procee dings it might conduct to be “official proceedings” in the meaning of secti on 425.16, subdivision (e)(1). (See Lee , supra , 135 Cal.App.4th at pp. 96-97)

[footnote continued from previous page] for those statements. (See Raining Data Corp. , supra, 175 Cal.App.4th at p. 1369.) If the statements themselves are protected unde r the anti-SLAPP statute as to the defendant who uttered the statements, it fo llows that any claim arising fro m the statements as to any defendant would be subject to an anti-SLAPP motion. Plai ntiff’s negligent supervision claim is predicated on what defendants have contended is protected speech, though the claim is pleaded as the garden variety tort of negligent supervision; it is subject to an antiSLAPP motion on that basis. (See Ramona , supra , 135 Cal.App.4th at p. 519.) We address below whether the statements are in fact protected speech.11 Plaintiff does contend that Orens’s stat ements were not made as part of an “official proceeding” in the me aning of the anti-SLAPP statut e. We disagree. At the time the statements were made, there was no ongoing investigati on of plaintiff, but “communications to an official agency intended to induce the agency to initiate action are part of an ‘official proceed ing,’” as that term is in the anti-SLAPP statute. ( Lee , supra, 135 Cal.App.4th at p. 96; see Brody v. Montalbano (1978) 87 Cal.App.3d 725, 732-733.) Moreover, “official proceeding” sh ould not be equated with “formal hearing”: matters that are resolved informally may equally be “official proceedings.” ( Lee , supra , at p. 97.) Such official pr oceedings may include, at least in some circumstances, those leading to termination of an employee by a public agency, among other things. 6 (See,
e.g., id . at p. 91 [involving term ination of high school coach by school officials].) Orens’s statements to plai ntiff’s supervisor, as allege d in the complaint, did not include an express request to initiate official proceedings to remove plaintiff from her position. But there is “no requirement” th at a communication “expressly request an investigation, hearing or that the agency take any particul ar action” to fall within the protection of the anti-SLAPP statute. ( Lee , supra , 135 Cal.App.4th at p. 97.) And the assertion that the PTA and Ri verside County Unified School District would not support

6 Plaintiff’s assertion that Lee is “expressly limited to comp laints made by parents to school authorities about a teacher or principa l in the performance of his or her official duties” is incorrect. Rather, the holding in Lee is an application of general principles— and in particular the principle that “communica tions to an official agency intended to induce the agency to initiate action are part of an ‘official proceeding’” ( Lee , supra , 135 Cal.App.4th at p. 96)—that have long been a pplied in a broad range of situations. (See, e.g., Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1390 [collecting some of the “many cases” appl ying the principle].)12 the SRTS program if plaintiff continued to be involved is, among other things, a nearlydirect request to remove plaintiff from any involvement. In short, Orens’s statements to plainti ff’s supervisor were communications to an official agency, which in essence ask the coun ty to initiate any proc eedings authorized by law—formal or informal—that might be necessary to remove plaintiff from any participation in the SRTS program, and expl ain the reasons why she believed such action was necessary. Thus, the statements are prot ected acts under section 425.16, subdivision (e)(1). In addition, even if the statements we re not protected unde r subdivision (e)(1) of section 425.16, they would be protected under subdivision (e )(4), as “conduct in furtherance of the exercise of the constituti onal right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” To qualify for protection under subdivision (e)(4), the issue must be one of concern to a substantial number of people, not merely a private cont roversy of interest to the speaker and a relatively small, sp ecific audience. ( Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) At the same time, the issue must not be one of broad, amorphous public interest, but rather one identifiable in time and place, and the challenged statements must bear a significant relationship to the asserted public issue. ( Id. at pp. 1132-1133.) A public issue has been found where statements “concerned a pe rson or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of wide spread, public interest [citations].” ( Rivero v. American Federation of State, Count y and Municipal Employees, AFL-CIO (2003) 10513 Cal.App.4th 913, 924 ( Rivero ).) Where the issue is of in terest only to a limited but definable portion of the public such as a pr ivate group, organizati on, or community, “the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or disc ussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” ( Du Charme v. International Brot herhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 ( Du Charme ), fn. omitted.) We agree with plaintiff that “whether or not [she] embezzle d $800 from the PTA over three years ago” is not a p ublic issue or an issue of public interest. We disagree, however, with plaintiff’s framing of the issue. Orens’s comments to plaintiff’s supervisor were made in connection with an issue of public intere st, namely, whether and under what conditions the PTA and Riverside Un ified School District would support and participate in a Riverside Co unty program intended for the benefit of schoolchildren. This issue is of widespread interest at leas t to Riverside public school students and their parents, specifically, as well as other citizen s who may take an interest in the public schools and the safety of children in Riversid e County, or the expenditure of public funds more generally. We do not view this as such a narrow subsection of the public that any additional showing of an “ongoi ng controversy, dispute or di scussion” is necessary. (See Du Charme , supra , 110 Cal.App.4th at p. 119.) But in any case, even if the program had not previously been the subject of an ongoing controversy , as plaintiff emphasizes, it was an ongoing topic of public discussion . As the complaint allege s, before Orens made her statements, plaintiff presente d at a public meeting at Jefferson Elementary school to14 publicize and advocate for the program, including efforts to draw in more “volunteers” to participate. Indeed, it was a pparently this public discussi on of the SRTS program that brought plaintiff’s participation to defendants’ attention, lead ing to the alleged statements that form the basis of this lawsuit. We conclude that Orens’s statements qualified for protection under subdivision (e)(4) of section 425.16. In support of the contrary c onclusion, plaintiff analogizes to Rivero

. Rivero , however, is distinguishable on its facts. In Rivero , the defendant union published complaints about a supe rvisor that included charges of petty theft, nepotism, acceptance of bribes, and abusive treatment of employ ees (janitors at a public university). ( Rivero , supra , 105 Cal.App.4th at pp. 916- 917) The Court of Appeal upheld the denial of the union’s anti-SLAPP motion, which had sought to strike the supervisor’s claims for libel and slander, among others. ( Rivero , supra , at p. 930.) The Court of Appeal reasoned that the statements at issue were made in connection with the s upervisor’s allegedly improper treatment of a staff of eight individuals, whic h was not in and of itself a matter of public interest. ( Id. at p. 925.) The court found no suffi cient connection between the statements and broader issues that might be of public in terest, such as significant waste or abuse of funds, or a larger union dispute, as opposed to an “isolated incident.” ( Id. at pp. 925- 928.) The connection to a larger p ublic issue that was missing in Rivero is present in this case. To be sure, not every petty theft of funds from a PTA, even by someone who later becomes a public employee, is a public issu e. Orens’s statements about plaintiff’s purported misuse of PT A funds, however, were made in connection with th e public issue15 of whether the PTA and Riverside Unified School District would participate in a Riverside County initiative fo r the benefit of public school students. As such, the statements are entitled to protection und er section 425.16, subdivision (e)(4). Since Orens’s statements were prot ected activity under section 425.16, subdivisions (e)(1) and (4), the burden theref ore shifted to plaintiff to establish a probability that she would prevail on th e merits. (§ 425.16, subd. (b)(1); Flatley , supra , 39 Cal.4th at p. 314. We will address plaintiff’s attempt to meet that burden in subsection 4, below. 2. Statements by Power and Ramirez to Orens The trial court found that none of the fo ur categories of protected activity set out in subdivision (e) of section 425.16 apply to the alleged statements by Power and Ramirez to Orens, the substance of which Oren s then passed on to plai ntiff’s supervisor. We disagree. Power’s and Ramirez’s statemen ts are protected under subdivisions (e)(1) and (e)(4) of the anti-SLAPP statute. First, the protections of the anti-SLAPP statute—specifically, subdivision (e)(1)— extend to communications among interested pa rties preparatory to requesting initiation of official proceedings. “In order to be effec tive in pressing their complaints to school authorities, parents must be free to communicate with each other withou t fear of liability. [Citation.] Such communicatio ns between interested par ties are protected by the privilege. [Citation.]” ( Lee , supra , 135 Cal.App.4th at p. 97) “To accomplish the purpose of judicial or quasi-judicial proceedi ngs, it is obvious that the parties or persons interested must confer and marshal their ev idence for presentation at the hearing.” Pettitt16 v. Levy (1972) 28 Cal.App.3d 484, 490 [discussi ng litigation privilege].) The right to do so “unchilled by the thought of subsequent ju dicial action” is part of the “fundamental” right to make such preparations. ( Id. at pp. 490-491.) In accordance with the ab ove principles, if Power and Ramirez were not consulting with Orens in preparation for in itiation of official proceedings, but merely relaying gossip (which Orens then acted on by her own initiative), subdivision (e)(1) of the anti-SLAPP statute would not apply. But the circumstan ces alleged in the complaint do not lend themselves to th e conclusion that Power and Ra mirez were merely gossiping when they relayed information about plaintiff’s purported thef t of PTA funds. Power and Ramirez both are or have been not only me mbers, but leaders in the PTA. Their communications with Orens led immediately to Orens’s communications with plaintiff’s supervisor conveying the request for initiation of official proc eedings to remove plaintiff and the information that the PTA would no t participate in the SRTS program unless plaintiff was removed. We conclude, ther efore, that defendants made an adequate showing the statements were communications among interested parties preparatory to a request to initiate official proceedings, and th us protected under subdivision (e)(1) of the anti-SLAPP statute. The communications by Powe r and Ramirez to Orens are also protected under subdivision (e)(4) of the anti-SLAPP statute. The same reasons discussed above with respect to Orens’s statements to plaintiff’s supervisor appl y to support the conclusion Power and Ramirez were engaging in “conduc t in furtherance of the exercise of the constitutional right of petition or the constitutiona l right of free speech in connection with17 a public issue or an issue of public interest” when they made their alleged statements to Orens. (§ 425.16, subd. (e )(4).) As such, the burden shifted to plaintiff to show a likelihood of success; we discuss th at issue below, in section (B)(4). 3. Statements by Byers to Pr incipal of Jefferson Elementary The trial court found that none of the fo ur categories of protected activity set out in subdivision (e) of section 425.16 apply to the alleged statements by Byers to the principal of Jefferson Elementary. Again, we disagree. Subdivision (e)(4) applies to these statements, even tho ugh subdivision (e)(1) does not. Unlike the statements discu ssed above, those by Byers to the principal of Jefferson Elementary are not entitled to protection u nder subdivision (e)(1) of section 425.16, because Byers was not asking for the principal to initiate any official proceedings. The principal was not plaintiff’s employer, and had no authority to initiate any sort of proceedings with respect to plaintiff’s participation in the SRTS program. Nevertheless, the statements by Byer s to the principal are protected under subdivision (e)(4) of section 425.16. Again, the allegations of the complaint establish that she was not merely gossiping about pl aintiff allegedly embezzling money from the PTA. Rather, she is alleged to have “instructed” the princi pal not to participate in the SRTS program if plaintiff was involved. As such, any statemen ts she made about plaintiff were made in connection with a p ublic issue—namely, whether and under what conditions the school should participate in the SRTS program—and fell within the protections of the anti-SLAPP statute.18 4. Probability of Pr evailing on the Merits The trial court never reached the second step in the SLAPP an alysis except with respect to Orens, whose statements it found to be protected by the litigation privilege, making it impossible for plaintiff to show pr obability of success as to claims against Orens. As discussed above, we disagree w ith the trial court’s conclusions regarding whether the statements by defendants other th an Orens fell within the protections of the anti-SLAPP statute, so we must consider plai ntiff’s evidence as to all defendants. We can decide the issue w ithout remand to the trial court for a decision in the first instance, because it is a question subject to independent review. (See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4t h 993, 999, 1010 [Fourt h Dist., Div. Two].) First, to the extent the statements disc ussed above fall within subdivision (e)(1) of Code of Civil Procedure secti on 425.16, they also fall with in the ambit of the litigation privilege in Civil Code section 47, su bdivision (b), precluding plaintiff from demonstrating any prob ability of success. The litigation privilege bars tort causes of action other than claims of malicious pros ecution based on privilege d publications or broadcasts, including those made in “official proceeding[s] authoriz ed by law.” (Civil Code, § 47, subd. (b); Flatley , supra , 39 Cal.4th at pp. 321-322 & fn. 9). Although some courts—and defendants in their briefing on appeal—have broadly characterized the antiSLAPP statute and the litigation privilege c odified in Civil C ode section 47 as “congruent” or “coex tensive” (see, e.g., Department of Fair Employment & Housing v. 1105 Alta Lo ma Road Apartments, LLC (2007) 154 Cal.App.4th 12 73, 1288, fn. 23), that19 is not a complete statement of the la w. The California Supreme Court in Flatley, supra , 39 Cal.4th at pp. 322-323, stated that the scope of protection under the two statutes is not identical and, although “[t]he language in [Code of Civil Procedure] section 425, subdivision (e)(1) and (2) para llels the description of priv ileged communications in Civil Code section 47, subdivision (b), . . . this doe s not necessarily mean the two statutes are coextensive or co ngruent in scope as applied.” ( Garretson , supra , 156 Cal.App.4th at p. 1518 [discussing Flatley ].) In Flatley , for example, the Supreme Court concluded that, even if certain extortionate communications were protected under the litigation privilege, it would not be “consistent with the language or the purpose of the anti-SLAPP statute to protect such threats.” ( Flatley , supra , at p. 322.) Nevertheless, plaintiff has not argued that subdivision (e)(1) and the litigation privilege are different in scope as applied to the facts of this case. To the contrary, plainti ff concedes that if Code of Civil Procedure section 425.16, subdivision (e)(1) applies to the statements, the “absolute privilege under Civil Code section 47 would also apply.” Nor do we se e any reason to conclude otherwise. Second, plaintiff’s evidentiary showing is inadequate w ith respect to all of her asserted causes of action. Plaintiff’s claims are all predicated on the notion that each of the individual defendants published certain defamatory statements about plaintiff in February 2012, namely, that plaintiff ha d embezzled money from the PTA and “as a result had been involved with the police.” Her evidence consists of two declarations; one from plaintiff, the other from her former superv isor at the SRTS program, Gail Carlson. Nothing in these declarations, however, estab lishes that any defend ant published any of20 the alleged defamatory statements. Plaintiff’s own declaration contains the assertion that Power had “spread rumors” about her in 2009 , but nothing about any statements Power or the other defendants may have made in 2012. 7 Gail Carlson avers that plaintiff “was terminated from her employment . . . as a di rect result of the in formation received from representatives of the PTA,” but her declarati on does not specifically identify any of the “representatives of the PTA,” nor does it incl ude any description of the “information” she received from them. There is nothing in eith er declaration about statements allegedly made to the principal of Jefferson Elementa ry School; only the information that Ms. Carlson learned on February 22 , 2012, that the school’s principal would no longer participate in the program, with no explanation as to why. Thus, there is simply no basis in the evidence presente d to conclude that anyone uttered the defamatory statements alleged in the complaint, let alone any of the defendants. And, as noted above, admissible evidence is required for plaintiff to show a probability of success; she cannot fill in lacunae in the declarations with facts alleged in the complaint. ( Overstock , supra , 151 Cal.App.4th at p. 699.) In short, plaintiff has failed to show a probability of success with respect to any cause of action, as asserted against any defend ant. To the extent the defendant’s alleged statements fall under the protec tion of subdivision (e)(1) of the anti-SLAPP statute, the litigation privilege precludes any such showing. To the extent the statements fall under the protection of subdi vision (e)(4) of the anti-SLAPP st atute, plaintiff’s evidence

7 To the extent plaintiff may intend to base any claim on st atements dating from 2009, the applicable one-year statute of limit ations would bar the claim. (§ 340, subd. (c).)21 submitted in opposition to defend ants’ motion is inadequate to establish a probability of success. Defendants’ anti-SLAPP motion, th erefore, should have been granted with respect to all causes of action, as asserted against all defendants. III. REQUEST FOR DISMISSAL After this case was fully briefed and a tentative opinion ha d been drafted and mailed to the parties, and after oral argumen t had been set, we re ceived requests for dismissal of the appeals. An appellant may not dismiss an appeal as a matter of right. ( Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sa nctions on attorney for unreasonable delay in notifying appellate cour t that parties had settled and dismissed the underlying case].) Rather, pursu ant to California Rules of Court, rule 8.244(c)(2), “On receipt of a request or stipul ation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary. Here, because the resolution of this case is fact specif ic, we grant the requests.

IV. DISPOSITION The appeals are dismissed. The pa rties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P.J. We concur: RICHLI J.
MILLER J.