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Cychner v. Food 4 Less Holdings11/6/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Food 4 Less Holdings, Inc. (Food 4 Less Holdings), and Ralphs Grocery Company (Ralphs) appeal the denial of their special motion to strike (Code Civ. Proc., § 425.16) a class action complaint by Tom Cychner and others. The defendants contend this action is a SLAPP (strategic lawsuit against public participation) because it challenges the exercise of their constitutional right of petition or free speech in connection with a settlement of potential litigation and because the plaintiffs have not established a probability of prevailing on their claims. We conclude that the complaint is not based on an act in furtherance of the defendants' constitutional right of petition or free speech and that the trial court properly denied the motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prior Class Actions
Employees of Food 4 Less stores sued Food 4 Less Holdings and Ralphs in two class actions seeking to recover unpaid overtime wages (Kung v. Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC188014); Hines v. Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC202728)). The parties settled the actions. The defendants agreed to pay class members a total of over $4.46 million, exclusive of attorney fees.
Employees of Food 4 Less stores also sued Food 4 Less Holdings and Ralphs in a third action for unpaid overtime wages (Metzler Food 4 Less Holdings, Inc. (Super. Ct. L.A. County, No. BC206244)). The appellate record does not disclose the disposition of that action.
2. Complaint in the Present Action
Tom Cychner, Terry Jolicoeur, and Andrew Ramirez sued Food 4 Less and Ralphs in September 2001. The complaint alleges that the defendants pressured employees to opt out of the Kung and Hines class actions and threatened to retaliate against those who participated in the class actions. It alleges that after a settlement in the class actions, the defendants paid employees who had opted out of the class actions a $10,000 bonus as a reward for their loyalty to the company, held a party for them, and provided a steak dinner. It alleges that by providing these benefits to employees who opted out, the defendants discriminated against the employees who participated in the class actions and retaliated against them for participating in the litigation. The complaint also alleges that one of purposes of the alleged discrimination was to discourage employees from participating in the Metzler class action.
The complaint alleges counts against the defendants for employment discrimination in violation of Labor Code section 98.6, tortious retaliation, and unfair business practices (Bus. & Prof. Code, § 17200 et seq.), on behalf of the plaintiffs individually and others who participated in the prior class actions.
3. Special Motion to Strike
Food 4 Less Holdings and Ralphs moved to strike the complaint under the anti-SLAPP statute (§ 425.16). They argued that the plaintiffs' complaint is based on the defendants' communications and settlements with putative class members, and that those acts are protected conduct under the anti-SLAPP statute. The defendants filed a declaration stating that they had settled with employees who opted out of the class actions, paid those employees in exchange for releases of claims, and calculated settlement payments to those emp
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