Jung v. Acosta

Filed 6/25/26
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ANDREAS JUNG et al.,
Plaintiffs and Appellants,
v.
ADAM ACOSTA et al.,
Defendants and
Respondents.
B340726
(Los Angeles County
Super. Ct. No.
24STCV11609)
APPEAL from an order of the Superior Court of Los
Angeles County, Gail Killefer, Judge. Affirmed.
Robert Lucas Law and Robert W. Lucas; Phillips &
Rickards and Wendell Phillips for Plaintiffs and Appellants.
Hadsell Stormer Renick & Dai, Dan Stormer, David Clay
Washington, and Kate McFarlane for Defendant and Respondent
Adam Acosta.
* Pursuant to California Rules of Court, rule 8.1110, this
opinion is certified for publication with the exception of part
III.A.

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Gilbert & Sackman, Joshua Adams and Emily Olivencia-
Audet for Defendants and Respondents Jeffrey C. Bigelow,
Manuel Corral, Diana Corral, and Henry Gambill.
__________________________________
I. INTRODUCTION
Following a union judicial panel proceeding, plaintiffs1
were found guilty of violating the union’s prohibitions against
anti-LGBTQ bigotry, racism, and sexist behavior and removed
from their positions as an officer and an employee. Plaintiffs
then sued defendants2 asserting various causes of action based
on defendants’ alleged disclosure of text messages and a
confidential mediation brief that defendants used to draft the
charges in the judicial panel proceeding. Defendants responded
with a special motion to strike pursuant to the anti-SLAPP
statute (Code Civ. Proc., § 425.16),3 and the trial court granted
the motion, in part.
On appeal, plaintiffs contend the stricken claims did not
arise from protected activity and, alternatively, those claims had
the “‘requisite minimal merit’” to defeat the anti-SLAPP motion.
(Baral, supra, 1 Cal.5th at p. 385.) We conclude the alleged
1 Plaintiffs are Andreas Jung and Maribel Alvarenga.
2 Defendants are Adam Acosta, Jeffrey C. Bigelow, Manuel
Corral (M. Corral), Diana Corral (D. Corral), and Henry Gambill.
3 Further statutory references are to the Code of Civil
Procedure unless otherwise indicated. “‘SLAPP’ is an acronym
for ‘strategic lawsuit against public participation.’” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral).)

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judicial panel proceedings were “official proceeding[s] authorized
by law” within the meaning of section 425.16, subdivision (e)(2)
and plaintiffs did not demonstrate their challenged claims had
the requisite minimal merit. Accordingly, we affirm the trial
court’s order.
II. BACKGROUND
A. The Parties
As alleged in the complaint, plaintiff Jung was the former
president of Council 36 of the American Federation of State,
County and Municipal Employees, AFL-CIO (Council 36).
Plaintiff Alvarenga was the former executive assistant to Jung.
Alvarenga was not a member of Council 36; she was a member of
the Council 36 Staff Union (Staff Union).
Council 36 represented over 20,000 members in southern
California and was one of over 3,000 labor unions affiliated with
the American Federation of State, County and Municipal
Employees International Union (International Union), which had
over one million members. The Council 36 constitution
incorporated by reference the constitution of the International
Union.
Defendant Acosta was a former employee of Council 36 and
defendants Bigelow, Gambill, D. Corral, and M. Corral (the
Bigelow defendants) were all affiliated with Council 36 as an
officer, board member, employee, or affiliated union officer.

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B. Acosta’s Complaint, Mediation, and Settlement
On August 8, 2019, Acosta filed a complaint against, among
others, Jung and Council 36 (Acosta’s action). The parties agreed
to mediate Acosta’s action.
On May 17, 2021, Acosta’s counsel submitted to the
mediator a mediation brief entitled “Non-Confidential Mediation
Brief” (capitalization, underscoring, and boldface omitted).
Attached as an exhibit to the mediation brief were text messages
between Jung and Alvarenga that were allegedly racist, anti-
LGBTQ, and sexist.
On May 23, 2021, Acosta and Jung signed a mediation
confidentiality agreement (mediation agreement).
On July 14, 2021, the parties to Acosta’s action signed a
confidential settlement and release agreement (settlement
agreement). Alvarenga was not a party to Acosta’s action and did
not sign the mediation agreement or the settlement agreement.
C. Judicial Panel Proceedings
After the parties in Acosta’s action entered into the
settlement agreement, Acosta provided Bigelow with the
mediation brief and attached exhibits. Bigelow then provided the
documents to the other Bigelow defendants who used them to
prepare charges against plaintiffs, which accused them of
violating the International Union’s prohibitions against anti-
LGBTQ bigotry, racism, and sexist behavior.
From January to May 2022, the International Union’s
judicial panel conducted a hearing on the charges at which the
Bigelow defendants testified.

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On May 5, 2022, the judicial panel chairperson issued her
decision finding plaintiffs guilty of the charges. The decision
ordered that Jung be removed as president of Council 36 and
expelled as a member of the International Union. It also ordered
that Alvarenga be terminated from her position. Council 36
terminated Alvarenga’s employment that same day.
Plaintiffs appealed the decision to the full judicial panel,
which unanimously affirmed it.
Plaintiffs then appealed the judicial panel decision to the
International Union convention in Philadelphia, Pennsylvania.
On July 13, 2022, the decision was debated before 2,327 delegates
representing approximately 1,000 local unions of the
International Union and 800,000 local union members. The
convention voted to deny the appeal.
D. Plaintiffs’ Complaint
On September 14, 2023, plaintiffs filed their complaint
against defendants, alleging 10 causes of action. As relevant
here, the complaint included: (1) Alvarenga’s breach of contract
claim against Acosta, the third cause of action; (2) plaintiffs’
conspiracy claim against all defendants, the fourth cause of
action; (3) Alvarenga’s intentional interference with contractual
relations claim against all defendants, the sixth cause of action;
and (4) Alvarenga’s intentional interference with prospective
economic advantage claim against all defendants, the seventh
cause of action.4
4 Plaintiffs voluntarily dismissed the eighth, ninth, and
tenth causes of action. The first cause of action for breach of

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In her breach of contract cause of action, Alvarenga alleged
that she was a third-party beneficiary of the mediation and
settlement agreements and that Acosta breached those
agreements by providing the mediation brief and exhibits to
Bigelow. She also alleged that Acosta knew that Bigelow would
distribute the documents to the other Bigelow defendants, who
would then use the documents to draft and prosecute charges
against Alvarenga.
In the conspiracy cause of action, plaintiffs alleged that
Acosta’s disclosure of his mediation brief and exhibits to the other
defendants, and the Bigelow defendants’ use of the text messages
to draft, file, and prosecute charges against plaintiffs, constituted
a conspiracy to breach a contract.
In the interference with contractual relations cause of
action, Alvarenga alleged that defendants induced Council 36 and
the Staff Union, of which she was a member, to breach their
contractual relationship with her. Specifically, she alleged that
her contractual relationship with Council 36 and the Staff Union
was governed by the terms of a collective bargaining agreement
and that defendants induced a breach of that agreement by
drafting and prosecuting the charges against her.
In the intentional interference with prospective economic
advantage cause of action, Alvarenga alleged that defendants
interfered with her contractual relationship with Council 36 by
contract and the second cause of action for breach of the implied
covenant of good faith and fair dealing were asserted by Jung
against Acosta only. The fifth cause of action for intentional
interference with contract was asserted by Jung against the
Bigelow defendants. The trial court denied the anti-SLAPP
motions as to the first, second, and fifth causes of action and
defendants did not appeal from those rulings.

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forcing her to defend her employment before the judicial panel
and then causing the International Union to order Council 36 to
terminate her employment, in contravention of her rights under
the collective bargaining agreement.
E. Anti-SLAPP Motions
1. The Bigelow Defendants’ Motion
On June 13, 2024, the Bigelow defendants filed their anti-
SLAPP motion, seeking to strike the causes of action pending
against them. They asserted that plaintiffs’ claims arose from
defendants’ protected activity, namely, their participation in the
judicial panel proceedings and subsequent appeals, which were
“official proceedings” within the meaning of section 425.16,
subdivision (e)(2) in that they were authorized by the Labor-
Management Reporting and Disclosure Act of 1959 (LMRDA;
29 U.S.C. § 401 et seq.).5 The Bigelow defendants further argued
that plaintiffs could not demonstrate the challenged causes of
action had the requisite minimal merit.
Plaintiffs opposed the motion, and the Bigelow defendants
replied.
5 The Bigelow defendants alternatively argued that the
judicial panel proceedings concerned a matter of public interest.
(§ 425.16, subd. (e)(3) & (4).) Because we conclude that the
challenged causes of action arose from activity that was protected
by section 425.16, subdivision (e)(2), we do not consider the
merits of defendants’ contention that those claims also concerned
a matter of public interest.

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2. Acosta’s Motion
On July 15, 2024, Acosta filed his anti-SLAPP motion. He
asserted that all the claims against him arose from protected
activity, either as a writing made in connection with an issue
under review in an official proceeding (§ 425.16, subd. (e)(2)) or
other conduct in furtherance of his right to petition in connection
with an issue of public interest (id., subd. (e)(4)). Acosta cited
plaintiffs’ allegations that Acosta shared the mediation brief and
attached exhibits with the Bigelow defendants, who then used
those materials to draft and file charges against plaintiffs.
Acosta also argued that plaintiffs could not meet their burden to
show that the challenged claims had the requisite minimal merit.
Plaintiffs opposed the motion, arguing, among other things,
that Acosta’s motion was untimely. Acosta filed a reply.
3. Ruling
Following argument on both anti-SLAPP motions, the trial
court issued its ruling. Regarding the timeliness challenge to
Acosta’s motion, the court exercised its discretion to consider it
pursuant to section 425.16, subdivision (f). As to both motions,
the court determined that defendants’ alleged wrongful conduct
arose out of protected activity and the judicial panel constituted
“an official proceeding” within the meaning of section 425.16,
subdivision (e)(2).6
6 The court also found that the complaint arose from conduct
in connection with an issue of public interest within the meaning
of section 425.16, subdivision (e)(4).

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The trial court next considered whether plaintiffs could
establish that their claims had at least minimal merit and
determined that (1) Alvarenga could not prevail against Acosta
on her breach of contract claim because she could not show she
was a third-party beneficiary to either the mediation or
settlement agreement; (2) plaintiffs could not prevail on their
conspiracy to breach the agreements claim because, among other
things, conspiracy was not an independent tort, but instead a
legal doctrine used to impose vicarious liability for the tortious
conduct of others and “‘a breach of contract becomes tortious only
when it also violates an independent duty arising from principles
of tort law’”; and (3) Alvarenga could not prevail on her
intentional interference with contractual relations and
intentional interference with prospective economic advantage
claims because those claims were preempted by the Labor
Management Relations Act of 1947 (LMRA; 29 U.S.C. § 185).
The court therefore granted the anti-SLAPP motions as to those
four causes of action. Plaintiffs timely appealed.
III. DISCUSSION
A. Timeliness of Acosta’s Motion
Plaintiffs originally filed the complaint in Riverside County
Superior Court, and on March 6, 2024, they obtained an entry of
default against Acosta there. On March 28, 2024, Acosta moved
to set aside the default and requested leave to file a responsive
pleading.
On March 29, 2024, the parties stipulated to transfer venue
to Los Angeles County Superior Court, and to extend the time for

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Acosta to file an anti-SLAPP motion by a period of “fourteen (14)
days after a Notice of Receipt of Transfer and Assignment of
Judge and New Case Number issued in Los Angeles Superior
Court.”
On May 8, 2024, the Los Angeles County Superior Court
(the trial court) issued a notice of incoming transfer, which
provided the name of the assigned judge and the new case
number.
On June 13, 2024, Acosta filed a renewed motion to set
aside default in the trial court.
On July 12, 2024, the trial court set aside Acosta’s default
and ordered him to “file a Responsive Pleading FORTHWITH.”
Three days later, on July 15, 2024, Acosta filed his anti-SLAPP
motion.
Plaintiffs assert that Acosta’s anti-SLAPP motion was
untimely because even though Acosta’s request to be relieved
from default was still pending, he had agreed to file his anti-
SLAPP motion by May 22, 2024, 14 days after the trial court
issued the requisite notice of incoming transfer on May 8, 2024.
According to plaintiffs, the court’s “failure to enforce procedural
requirements is an abuse of discretion requiring reversal.” We
disagree.
Section 425.16, subdivision (f) provides in pertinent part:
“The special motion may be filed within 60 days of the service of
the complaint or, in the court’s discretion, at any later time upon
terms it deems proper.” Under that subdivision, “[a] court ‘enjoys
considerable discretion’ in determining ‘whether to allow [a] late
filing of an anti-SLAPP motion.’ [Citation.] However, the court
must exercise this discretion consistent with the purposes of the
statute and must be mindful that the 60-day deadline is the

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general rule. [Citation.] ‘[T]he Legislature’s act in allowing an
interlocutory appeal of the denial of an anti-SLAPP motion is
clearly tied to the fact that the statute contemplates that most
such motions will be filed within 60 days of the filing of the
complaint.’ [Citation.] Thus, a ‘trial court must be wary about
freely granting a party the right to file an anti-SLAPP motion
past the 60-day deadline.’ [Citation.] In determining whether to
permit a late motion, the most important consideration is
whether the filing advances the anti-SLAPP statute’s purpose of
examining the merits of covered lawsuits in the early stages of
the proceedings. [Citations.] Other relevant factors include the
length of the delay, the reasons for the late filing, and any undue
prejudice to the plaintiff. [Citation.]” (San Diegans for Open
Government v. Har Construction, Inc. (2015) 240 Cal.App.4th
611, 624.)
Acosta filed his motion during the early stages of the
litigation, as plaintiffs’ lawsuit had not progressed beyond the
Bigelow defendants’ filing of their motion, and the length of the
purported delay was not excessive as Acosta filed his motion on
July 15, 2024, which was within two months of May 22, 2024, the
date by which plaintiffs contend Acosta was required to file his
motion. (Cf. Hoang v. Tran (2021) 60 Cal.App.5th 513, 526
[finding no abuse of discretion allowing defendant to file anti-
SLAPP motion more than one year after complaint was filed;
defendant “gave a plausible excuse for his delay in filing,” and
plaintiff failed to show “that the late filing of the anti-SLAPP
motion prejudiced his ability to defend against the motion”].)
Given his status as a defendant in default, Acosta could not
have filed his motion earlier. (See Sass v. Cohen (2020) 10
Cal.5th 861, 882 [“A defendant who defaults is ‘out of court’ and

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not entitled to participate in [any proceeding other than moving
to set aside the default]”]; Bailey v. Citibank, N.A. (2021) 66
Cal.App.5th 335, 347 [“[t]he entry of a defendant’s default cuts off
the defendant’s right to file pleadings and motions (other than a
motion to set aside default under § 473), and it also cuts off the
defendant’s right to notices and the service of pleadings or
papers”].) Thus, the reason for the delay, Acosta’s status as a
defendant in default, weighs in favor of allowing the late filing.
Further, plaintiffs do not articulate how they were prejudiced by
the timing of Acosta’s motion, which was filed three days after
the trial court vacated the entry of default.
Finally, the trial court’s decision to permit the late filing
advances the purpose of the anti-SLAPP statute, which is to early
examine the merits of covered claims. “[T]he whole purpose of
the statute is to provide a mechanism for the early termination of
claims that are improperly aimed at the exercise of free speech or
the right of petition. [Citation.]” (Lam v. Ngo (2001) 91
Cal.App.4th 832, 841.) On this record, even assuming that
Acosta’s motion was filed late, we find no abuse of discretion in
the court’s decision to reach the merits of that motion.
B. Anti-SLAPP Motion
“Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success. We have described this second step as a
‘summary-judgment-like procedure.’ [Citation.] The court does

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not weigh evidence or resolve conflicting factual claims. Its
inquiry is limited to whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient
to sustain a favorable judgment. It accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.
[Citation.] ‘[C]laims with the requisite minimal merit may
proceed.’ [Citation.]” (Baral, supra, 1 Cal.5th at pp. 384–385, fn.
omitted.) “Our review of the trial court’s ruling on an anti-
SLAPP motion, including any issues of statutory interpretation
presented on appeal, is de novo. [Citations.]” (Doe v. Ledor
(2023) 97 Cal.App.5th 731, 741.)
C. Prong One: Protected Activity
“At this first step, courts are to ‘consider the elements of
the challenged claim and what actions by the defendant supply
those elements and consequently form the basis for liability.’
[Citation.] The defendant’s burden is to identify what acts each
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity. [Citation.]” (Bonni v. St. Joseph Health System (2021)
11 Cal.5th 995, 1009 (Bonni).) Among other defined categories,
section 425.16, subdivision (e)(2) protects “any written or oral
statement or writing 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.” (Italics
added.)

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1. Judicial Panel Proceeding
The Legislature did not limit the category of “‘official
proceeding authorized by law’” in subdivision (e)(2) to
proceedings before governmental agencies. (Kibler v. Northern
Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 202–203,
fn. omitted (Kibler).) In the context of nongovernmental entities,
California courts have extended “official proceeding” protection to
quasi-judicial proceedings if they are part of a comprehensive
statutory licensing scheme and “subject to judicial review by
administrative mandate” such as is the case with hospital peer
review (id. at p. 200), and to proceedings “established by statute
to address a particular type of dispute” such as occurs during an
attorney fee arbitration mandated by law (Philipson & Simon v.
Gulsvig (2007) 154 Cal.App.4th 347, 358 (Philipson & Simon);
see Bus. & Prof. Code, § 6200 et seq. [Mandatory Fee Arbitration
Act].)
As a threshold issue, plaintiffs contend the anti-SLAPP
statute does not apply to protect defendants’ offending conduct in
this case because the International Union judicial panel
proceeding does not constitute an “official proceeding authorized
by law” within the meaning of section 425.16, subdivision (e)(2).
In considering this issue, we are guided by the Supreme Court’s
analysis in Kibler, supra, 39 Cal.4th 192 in which the court
considered whether a hospital peer review proceeding—during
which a hospital’s medical staff evaluates fellow physicians’
professional competence—was an “official proceeding authorized
by law.” The court was persuaded they were “official
proceedings” in part because the Business and Professions Code
mandated the peer review process when it granted to individual

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hospitals the responsibility to oversee the medical profession.
(Kibler, supra, 39 Cal.4th at pp. 199–200.) The court commented
that the “peer review procedure plays a significant role in
protecting the public against incompetent, impaired, or negligent
physicians” and expressed concern that excluding them from
anti-SLAPP protection would jeopardize participation in peer
review committees. (Id. at pp. 200–201.) The court also observed
that peer review decisions were subject to review by
administrative mandamus (Bus. & Prof. Code, § 809.8) and thus
akin to quasi-judicial public agency decisions that were likewise
reviewable by administrative mandamus. (Id. at p. 200.)
In a more recent case, the Supreme Court added, “[hospital]
peer review is also designed to ensure that determinations
affecting medical staff privileges are made fairly” and “to guard
against arbitrariness and unfairness in decisions about whether
a practitioner will be permitted to remain on a hospital staff.”
(Bonni, supra, 11 Cal.5th at p. 1013.) The Bonni court listed this
due process consideration among the factors it relied upon in
Kibler to conclude that peer review proceedings were official
proceedings within the meaning of section 425.16, subdivision
(e)(2). (Ibid.)
Notwithstanding plaintiffs’ attempt to distinguish union
disciplinary hearings based on their private nature, we conclude
the International Union judicial panel proceedings at issue here
are sufficiently similar to the peer review proceedings discussed
in Kibler, supra, 39 Cal.4th 192 and Bonni, supra, 11 Cal.5th 995,
and thus are “official proceedings authorized by law” within the
meaning of section 425.16, subdivision (e)(2).
The judicial panel proceedings were mandated by federal
law, specifically, the LMRDA, which provides that no member of

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a labor organization7 “may be fined, suspended, expelled, or
otherwise disciplined except for nonpayment of dues ... unless
such member has been (A) served with written specific charges;
(B) given a reasonable time to prepare his defense; [and]
(C) afforded a full and fair hearing.” (29 U.S.C. § 411(a)(5).)
Thus, like hospital peer review proceedings—which the Business
and Professions Code requires as part of a hospital’s bylaws (Bus.
& Prof. Code, § 2282, subd. (c)) and must include “standards” for
peer review and selecting and removing medical staff officers (id.,
§ 2282.5)—labor unions must comply with certain procedures
before fining, suspending, expelling, or otherwise disciplining one
of their members. (Cf. Philipson & Simon, supra, 154
Cal.App.4th at p. 358 [finding “official proceeding” where
Mandatory Fee Arbitration Act mandates establishment of a
procedure for mediating attorney fee disputes]; Dorit v. Noe
(2020) 49 Cal.App.5th 458, 469 [same]; Mallard v. Progressive
Choice Ins. Co. (2010) 188 Cal.App.4th 531, 542 [finding “official
proceeding” under Ins. Code, § 11580.2’s statutory scheme
mandating contractual arbitration of uninsured motorist claim
disputes].)
Although, as plaintiffs observe, labor unions adopt the
required disciplinary procedures by “private contract,” rather
than by “statute,” that distinction does not alter our conclusion
that a judicial panel proceeding is an “official proceeding
authorized by law.” Those privately adopted procedures are
subject to the federal statutory requirement that union policies
comply with the due process rights guaranteed by the LMRDA, a
federal requirement closely analogous to the Business and
7 The parties do not dispute that the International Union
was subject to the LMRDA.

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Professions Code’s mandate that private hospitals must adopt
bylaws that include peer review procedures for staff.
We also reject plaintiffs’ assertion that the LMRDA does
not “‘authorize’ union disciplinary proceedings—it merely
regulates them if a union conducts them.” Plaintiffs suggest that,
because a union may elect never to fine, suspend, expel, or
otherwise discipline any of its members, the LMRDA due process
guarantees for union members are not “authorized by law” as
that phrase is used in section 425.16, subdivision (e)(2). We
disagree.
Although, in theory at least, a labor union could avoid the
LMRDA’s procedures by declining to discipline any of its
members, that speculative scenario does not render the
procedures set forth in the LMRDA discretionary.8 Here, the
union chose to discipline defendants following proceedings
instituted pursuant to its constitution. And, as explained, those
disciplinary proceedings were subject to the due process
mandates of the LMRDA.
8 Plaintiffs also contend that the International Union judicial
panel was not an “official proceeding authorized by law” because
Alvarenga was subject to its ruling even though she was not an
International Union member. This argument is inapposite, as
Alvarenga’s status as a member or employee does not alter the
nature of the panel. As an employee of Council 36, a subordinate
body of the International Union, Alvarenga fell within the scope
of an accused person as set forth in Article X of the International
Union constitution, which provides that charges may be filed
“against any individual for actions taken while a member of the
[union] or while a staff employee of the [union] or a subordinate
body,” and the associated due process rights guaranteed therein.

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Plaintiffs’ argument that they were not proceedings
“authorized by law” is thus contrary to the plain meaning of
“authorized” in section 425.16, subdivision (e)(2): “endowed with
authority” or “sanctioned by authority: having or done with legal
or official approval.” (Merriam-Webster’s Online Dict. (2026)
<https://www.merriam-webster.com/dictionary/authorize> [as of
June 23, 2026], archived at <https://perma.cc/4MUX-K7DH>.)
The plain meaning of “authorized by law” controls if there is no
ambiguity in that language. (Washington v. County of San Diego
(2025) 113 Cal.App.5th 874, 879.) Under our reading of that
phrase, the LMRDA, through its guarantees of due process for
union members before the imposition of discipline, endows unions
with the authority to conduct, or otherwise sanctions their
conduct of, disciplinary proceedings against members pursuant to
a union’s constitutional procedures, as long as those procedures
are compliant with those federal guarantees.
The procedural requirements of the LMRDA, like hospital
peer review procedures, are “designed to ensure that
determinations affecting [union discipline] are made fairly.
Without fair procedures, [union discipline] can be an instrument
for arbitrarily or discriminatorily excluding [union members].”
(Bonni, supra, 11 Cal.5th at p. 1013; see 29 U.S.C. § 411(a)(5)
[union member entitled to written notice of charges and
reasonable opportunity to defend against them at hearing].) And,
just as peer review decisions are subject to review by
administrative mandamus (or writ proceeding), union judicial
panel proceedings are subject to review by a court. (See 29
U.S.C. § 412 [providing for civil action against labor organization
for violation of rights under the LMRDA].)

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In sum, much like hospital peer review, the judicial panel
proceedings here are regulated by a statutory scheme to ensure
due process, and subject to judicial review. For these reasons,
and in light of the statutory mandate that section 425.16 “shall
be construed broadly” (§ 425.16, subd. (a)), we conclude that a
judicial panel proceeding is an official proceeding authorized by
law.
2. Claims Against Acosta and Bigelow
Plaintiffs next contend that, even if the judicial panel
proceeding was an official proceeding for purposes of the anti-
SLAPP statute, plaintiffs’ claims against Acosta and Bigelow
were predicated on conduct that preceded the initiation of the
proceedings before the judicial panel—namely, Acosta’s act of
providing the mediation brief and exhibits to Bigelow—and were
therefore not based on conduct in connection with those
subsequent proceedings.
Plaintiffs’ contention ignores that their causes of action are
premised on Acosta and Bigelow’s knowledge and desire to aid in
the bringing of charges against plaintiffs. In her breach of
contract cause of action, for example, Alvarenga alleged that
Acosta “knew of Bigelow’s intended use of Acosta’s mediation
brief and exhibits” before he provided the documents to Bigelow
and that the intended use included “draft[ing] the charges
against [plaintiffs] in prosecuting the charges” against them. She
also alleged that Acosta “further breached” the settlement
agreement by encouraging, causing, and supporting others to file
the judicial panel charges against plaintiffs.
Similarly, in the conspiracy cause of action, plaintiffs
alleged that defendants conspired to breach the mediation and

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settlement agreements when Acosta provided the Bigelow
defendants with the mediation brief and exhibits so that they
could draft charges against plaintiffs.9 And, in her intentional
interference with contractual relations and intentional
interference with economic advantage causes of actions,
Alvarenga alleged that Acosta “aided in abetting [sic] in bringing
charges against Alvarenga” “[b]y undertaking the acts alleged”
and “[b]y engaging in the acts stated … .” We therefore reject the
argument that Acosta’s provision and Bigelow’s acceptance of the
mediation brief and exhibits were not in connection with the
judicial panel proceedings.
Moreover, and as a separate basis for the application of
section 425.16, subdivision (e)(2), communications in anticipation
of litigation are protected under the anti-SLAPP statute. (Bassi
v. Bassi (2024) 101 Cal.App.5th 1080, 1096.) “As interpreted by
the Courts of Appeal, a statement or writing is ‘made “in
connection with”’ litigation under section 425.16(e)(2)—including
anticipated litigation—‘if it relates to the substantive issues in
the litigation and is directed to persons having some interest in
the litigation.’ [Citation.]” (Ibid.) Here, Acosta’s provision to
Bigelow of the mediation brief and exhibits related to the
substantive issues that the Bigelow defendants raised before the
judicial panel and supported the charges adjudicated in those
proceedings, which we have already deemed to be official
9 Although plaintiffs’ complaint earlier alleged that Acosta
provided the mediation brief and exhibits to Bigelow, who then
provided the documents to the other Bigelow defendants, in the
conspiracy cause of action, plaintiffs alleged that Acosta
“wrongfully breached his contract with [p]laintiffs by ... providing
[the Bigelow defendants] copies of his mediation brief and
exhibits… .”

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proceedings authorized by law. Accordingly, Acosta’s alleged
breach of the confidential agreements was “in connection with”
an official proceeding authorized by law.
Plaintiffs additionally contend that Bigelow’s alleged
“wrongful conduct” is not protected activity under the anti-
SLAPP statute. Citing Flatley v. Mauro (2006) 39 Cal.4th 299
(Flatley), they argue that Bigelow engaged in illegal activity
when he “wrongfully obtained” the mediation brief and therefore
his subsequent conduct, the drafting of the charges, was not
protected. We are unpersuaded.
Our Supreme Court “made it clear in Flatley that conduct
must be illegal as a matter of law to defeat a defendant’s showing
of protected activity. The defendant must concede the point, or
the evidence conclusively demonstrate it, for a claim of illegality
to defeat an anti-SLAPP motion at the first step. [Citation.]”
(City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424.)
Plaintiffs did not conclusively demonstrate that Bigelow engaged
in illegal conduct as a matter of law and Bigelow did not concede
that he had engaged in such illegal conduct. Thus, Bigelow’s
drafting of a “writing in connection with ... ‘[an] official
proceeding authorized by law,’” the judicial panel charges, was
protected activity.
Accordingly, we conclude that defendants met their initial
burden of demonstrating that the causes of action at issue here
arose from their protected activity.
D. Prong Two: Probability of Success
“To succeed in opposing a special motion to strike, the
nonmoving party must ‘demonstrate both that the claim is legally

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sufficient and that there is sufficient evidence to establish a
prima facie case with respect to the claim.’ [Citation.] ‘[C]laims
with the requisite minimal merit may proceed.’ [Citation.] The
moving party prevails by ‘defeat[ing]’ the ‘claim as a matter of
law’ [citation] in ‘a summary-judgment-like procedure’ [citation].”
(Olson v. Doe (2022) 12 Cal.5th 669, 679.)10
1. Alvarenga’s Breach of Contract Cause of Action
To prevail on a cause of action for breach of contract made
for the benefit of a third party, a plaintiff must show “not only
(1) whether the third party would in fact benefit from the
contract, but also (2) whether a motivating purpose of the
contracting parties was to provide a benefit to the third party,
and (3) whether permitting a third party to bring its own breach
of contract action against a contracting party is consistent with
the objectives of the contract and the reasonable expectations of
the contracting parties.” (Goonewardene v. ADP, LLC (2019)
6 Cal.5th 817, 830.)
Here, it is undisputed that Alvarenga was neither a party
to nor specifically named in the mediation agreement or the
10 We note that the challenged causes of action were
premised, in large part, on defendants’ disclosure of plaintiffs’
text messages. The record reflects that the text messages were
produced during discovery and therefore would not be protected
from disclosure under either the mediation or settlement
agreement. (See Wimsatt v. Superior Court (2007) 152
Cal.App.4th 137, 157 [“Although the statutory scheme [of
mediation confidentiality] is broadly applied, it does not protect
items admissible or subject to discovery merely because they
were introduced in mediation”].)

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settlement agreement. Plaintiffs nonetheless argue that a
motivating purpose of the settlement agreement was “to help
Alvarenga and other [Council] 36 employees” because the
settlement agreement released Council 36’s employees from all
past, present, and future claims “arising out of or relating to the
events at issue [in Acosta’s lawsuit].”11
But “[t]he fact that a third party is incidentally named in
the contract, or that the contract, if carried out according to its
terms, would inure to his benefit, is not sufficient to entitle him
to enforce it. [Citation.] Reading the agreement as a whole in
light of the circumstances under which it was made, the terms of
the agreement must clearly manifest an intent to make the
obligation inure to the benefit of the third party. [Citations.]”
(Martin v. Bridgeport Community Assn., Inc. (2009) 173
Cal.App.4th 1024, 1034.) The purpose of the settlement
agreement, in light of Acosta’s dispute with Council 36 and Jung,
was to settle Acosta’s claims against those parties. By its terms,
the agreement stated, “it is the desire of the Settling Parties to
fully and finally settle all claims between them arising out [of]
[Acosta’s lawsuit] once and for all and to resolve this dispute
amicably without the burden of further disputes and litigation
….” Although the release contained broad language that
included employees of Council 36, Alvarenga does not explain
how the parties to the agreement specifically intended to benefit
11 By limiting this contention to the settlement agreement,
plaintiffs waive their argument that a motivating purpose of the
contracting parties to the mediation agreement was to provide a
benefit to Alvarenga. (Cruz v. Tapestry, Inc. (2025) 113
Cal.App.5th 943, 954 (Cruz) [issues not raised in an appellant’s
brief are deemed waived or abandoned].)

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her, as she was not named in Acosta’s action and did not allege
facts supporting an inference that Acosta had any potential claim
against her. (See Vahle v. Barwick (2001) 93 Cal.App.4th 1323,
1328 [“the burden is on the third party to prove the parties to the
release agreement intended to benefit the third party”].)
Accordingly, Alvarenga failed to meet her burden of
demonstrating at least minimal merit as to the third cause of
action.
2. Conspiracy Cause of Action
Plaintiffs next contend that they met their burden of
demonstrating that their conspiracy cause of action against the
Bigelow defendants had at least minimal merit.12 According to
plaintiffs, their evidence supported an inference that those
defendants “knowingly participated in breaching the
confidentiality agreements by receiving, distributing, and using
materials they knew were protected.” We disagree.
“Conspiracy is not a cause of action, but a legal doctrine
that imposes liability on persons who, although not actually
committing a tort themselves, share with the immediate
tortfeasors a common plan or design in its perpetration.”
(Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7
Cal.4th 503, 510–511.) “It must be activated by the commission
of an actual tort.” (Id. at p. 511.) Plaintiffs alleged that the
12 The conspiracy cause of action was alleged against Acosta
as well. But plaintiffs do not argue that their claim against
Acosta had at least minimal merit. Any such argument is
therefore waived on appeal. (Cruz, supra, 113 Cal.App.5th at
p. 954.)

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Bigelow defendants conspired to breach the mediation and
settlement agreements. A breach of contract, however, does not
ordinarily constitute a tort. (Rattagan v. Uber Technologies, Inc.
(2024) 17 Cal.5th 1, 25 [stating “the general rule that, outside the
area of insurance contracts, tort recovery is not available for a
contract breach unless ‘“an independent duty arising from
principles of tort law”’ is violated”].) Because plaintiffs may not
ground their conspiracy claim in breach of contract, it is legally
insufficient and they therefore have failed to demonstrate that
their conspiracy claim had minimal merit.
3. Alvarenga’s Intentional Interference Causes of Action
Plaintiffs contend that Alvarenga met her second-prong
burden of demonstrating the requisite minimal merit for the
intentional interference with contractual relations and
intentional interference with prospective economic advantage
causes of action.
“To prevail on a cause of action for intentional interference
with contractual relations, a plaintiff must plead and prove
(1) the existence of a valid contract between the plaintiff and a
third party; (2) the defendant’s knowledge of that contract; (3) the
defendant’s intentional acts designed to induce a breach or
disruption of the contractual relationship; (4) actual breach or
disruption of the contractual relationship; and (5) resulting
damage. [Citation.] To establish the claim, the plaintiff need not
prove that a defendant acted with the primary purpose of
disrupting the contract, but must show the defendant’s
knowledge that the interference was certain or substantially
certain to occur as a result of his or her action. [Citation.]”
(Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

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“Intentional interference with prospective economic
advantage has five elements: (1) the existence, between the
plaintiff and some third party, of an economic relationship that
contains the probability of future economic benefit to the
plaintiff; (2) the defendant’s knowledge of the relationship;
(3) intentionally wrongful acts designed to disrupt the
relationship; (4) actual disruption of the relationship; and
(5) economic harm proximately caused by the defendant’s action.”
(Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.
(2017) 2 Cal.5th 505, 512.)
Both of Alvarenga’s intentional interference claims alleged
that defendants’ conduct disrupted her contractual and
prospective economic relationship with Council 36 in
“contravention” of her rights under the “collective bargaining
agreement” between Council 36 and the Staff Union. We agree
with defendants that Alvarenga’s intentional interference causes
of action are preempted by section 301 of the LMRA (29 U.S.C.
§ 185), which establishes that “federal law exclusively governs
suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce.” (Lujan v. Southern California Gas Co. (2002) 96
Cal.App.4th 1200, 1206.) Based on Alvarenga’s allegations,
resolution of these two remaining causes of action would require
interpretation of the collective bargaining agreement between
Council 36 and the Staff Union to determine the nature of the
relationship and the extent of the disruption. (See ibid.
[“Preemption has … been applied … if resolution of the state law
claim depends on the meaning of or requires the interpretation of
a collective bargaining agreement”].)

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Because Alvarenga’s intentional interference claims are
preempted by the LMRA and thus legally insufficient, plaintiffs
have failed to demonstrate they have minimal merit.
IV. DISPOSITION
The order granting, in part, defendants’ anti-SLAPP
motions is affirmed. Defendants are awarded costs on appeal.
KIM (D.), J.
We concur:
HOFFSTADT, P. J.
BAKER, J.

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