Judge: Daniel S. Murphy, Case: 22STCV39267, Date: 2023-03-29 Tentative Ruling

Case Number: 22STCV39267    Hearing Date: March 29, 2023    Dept: 32

BACKGROUND

            This employment discrimination action was initiated on December 19, 2022. On January 10, 2023, Plaintiffs Chris Grant, Jorge Sandoval, and Bertha Parra filed the operative First Amended Complaint against Defendant City of Azusa, asserting causes of action for (1) harassment, (2) discrimination, (3) FEHA retaliation, (4) whistleblower retaliation, (5) failure to take corrective action, (6) violation of POBR, and (7) failure to accommodate.

            Plaintiffs Sandoval and Parra are Hispanic and allege that they were harassed and discriminated against due to their race. Parra additionally alleges harassment and discrimination based on her gender. Grant and Sandoval are also over 40 and disabled. Plaintiffs additionally allege discrimination and retaliation because they associated with and resisted the discrimination of Hispanic and female coworkers.

            On March 2, 2023, Defendant filed the instant special motion to strike on the grounds that the alleged actions taken against Plaintiffs Grant and Sandoval stemmed from complaints against Plaintiffs and subsequent internal affairs investigations, making them protected activity as statements in furtherance of an official proceeding.

LEGAL STANDARD

A special motion to strike under Code of Civil Procedure section 425.16 allows a defendant to seek early dismissal of a lawsuit that qualifies as a strategic lawsuit against public participation. A SLAPP is “a cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

Such acts include (1) any written or oral statement or writing made before a judicial proceeding, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a judicial body, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance 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. (Code Civ. Proc., § 425.16, sub. (e).)

Evaluation of an anti-SLAPP motion requires a two-prong process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Second, if the court finds such a showing has been made, the court must then consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.) If both prongs are met—(1) the defendant is being sued for protected activity, and (2) the plaintiff has no reasonable probability of success—then the lawsuit is subject to being stricken under the statute. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 709-10.)

EVIDENTIARY OBJECTIONS

Plaintiffs’ Objections to Defendant’s Evidence:

• Plaintiffs’ objections are overruled.

Defendant’s Objections to Plaintiffs’ Evidence:

• The following objections are sustained: Grant Decl. ¶¶ 32, 33; Sandoval Decl. ¶ 43.
• The remaining objections are overruled.

DISCUSSION

I. Protected Activity

            To satisfy the first prong, a moving defendant must identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) A “claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060.) A plaintiff’s allegation that an employment decision was made for unlawful or discriminatory motives does not immunize the claim from the anti-SLAPP statute. (Wilson, supra, 7 Cal.5th at p. 892.) The first prong is analyzed without regard to any alleged improper motive. (Id. at p. 888.) However, a defendant may “present evidence of its own motives in an effort to make out its prima facie case of protected activity.” (Id. at p. 889.) “[T]he court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2).)   

            a. Speech in Connection with an Official Proceeding

Here, Defendant uses affidavits from department officials to show that the actions against Plaintiffs stemmed from pending IA investigations triggered by complaints against Plaintiffs. Defendant argues that it was legally required to investigate the complaints and that IA investigations are official proceedings under the law.  

            However, that does not lead to the conclusion that the wrongs complained of are “written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by [an] . . . official proceeding authorized by law.” (Code Civ. Proc., § 425.16(e)(2).) Rather, Plaintiffs allege that they were removed from assignments, placed on leave, had their promotions delayed, and excluded from meetings.

Anti-SLAPP protection is not triggered where a “plaintiff challenge[s] the retaliatory employment decision, not the process that led up to that point.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 362.) “[S]tatements, made during a public meeting, might constitute protected activity, [but] subsequent governmental action relating to matters discussed at the meeting do not necessarily implicate the exercise of free speech of petition.” (Id. at pp. 361-62.) Plaintiffs here similarly challenge employment decisions, not statements made in the process that led to the decisions. “[T]he anti-SLAPP statute protect[s] investigation-related speech allegations,” not the decision to investigate in and of itself. (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 774.) Plaintiffs’ claims are not based on investigation-related speech, as they do not target any statements or writings made in connection with the IA investigations. Even if the personnel decisions followed or flowed from the IA investigations, “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The actual conduct that Plaintiffs ultimately challenge are employment decisions that are not protected as speech in furtherance of an official proceeding.

            Defendant relies on Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 200, which held that “hospital peer review proceedings constitute official proceedings authorized by law within the meaning of section 425.16, subdivision (e)(2).” Assuming that an IA investigation is akin to a peer review proceeding in that both can be considered “official proceedings authorized by law,” that still does not determine what constitutes a statement made in furtherance of such a proceeding. Kibler only dealt with “the meaning of the statutory phrase ‘any other official proceeding authorized by law.’” (Id. at p. 198.) The court did not hold that employment actions, such as removal or demotion, constitute statements in furtherance of official proceedings.

            b. Other Acts in Furtherance of Free Speech or Petition

            But protected activity is not limited to written and oral statements in connection with an official proceeding. Protected activity also includes “any other conduct in furtherance 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.” (Code Civ. Proc., § 425.16(e)(4).) Employment decisions, such as termination, may invoke anti-SLAPP protection under the right circumstances. For example, in Wilson, CNN’s termination of a writer for plagiarism was protected activity because plagiarism affects CNN’s credibility and ability to publish speech in connection with matters of public interest. (Wilson, supra, 7 Cal.5th at p. 898.) However, cases like this are the exception, not the rule. (Id. at p. 890.) Normally, “a legal challenge to a particular staffing decision will have no substantial effect on the [defendant’s] ability to speak on public issues, which is the anti-SLAPP statute's concern.” (Id. at p. 896.)  

Defendant relies on McKinley v. Eloy (9th Cir. 1983) 705 F.2d 1110 for the proposition that “[t]he competency of a police force is a matter of great public concern, including for purposes of the protection of free speech.” (Mtn. 12:11-13.) McKinley dealt with a police officer who was improperly fired for exercising his First Amendment right to speak on a matter of public interest—the plaintiff “publicly criticized the City's decision not to give police officers an annual raise.” (McKinley, supra, 705 F.2d at p. 1112.) The court analyzed public interest and free speech in the context of deciding whether the plaintiff properly asserted a 1983 claim. (Id. at pp. 1113-14.) The case did not involve an anti-SLAPP motion, and the court did not hold that personnel decisions involving police officers, such as removals or demotions, are protected activity under Section 425.16.

In McKinley, the plaintiff’s public speech at a hearing obviously invoked the First Amendment. The plaintiff literally spoke on a matter of public interest in a public forum. This cannot be analogized to the present case, which involves an internal investigation and associated disciplinary measures. Defendant does not adequately articulate how its employment decisions implicate its right to free speech in the same way as in McKinley or Wilson. Just because the competency of the police force is a matter of public concern, does not mean Defendant exercised its First Amendment rights on the matter by removing Plaintiffs from their work assignments, placing them on leave, delaying their promotions, and the like. Again, employment decisions ordinarily do not invoke a defendant’s ability to speak on public issues. (Wilson, supra, 7 Cal.5th at p. 896.)

Because the personnel decisions regarding Plaintiffs were not statements in furtherance of an official proceeding nor conduct invoking Defendant’s right to petition or free speech, the complaint does not target protected activity.

II. Probability of Success

Even if the first prong is met, Defendant must show that Plaintiffs have no probability of success. A plaintiff establishes a probability of prevailing on the claim 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. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-14.) Rather than weighing the evidence, the court must “accept as true the evidence favorable to the plaintiff . . . The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP . . . .” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.¿) The defendant’s showing is only analyzed “to determine if it defeats the plaintiff’s claim as a matter of law.” (Area 55, LLC v. Nicholas & Tomasevic (2021) LLP, 61 Cal.App.5th 136, 151.)

Defendant argues that Plaintiff’s claims are time-barred because certain events occurred more than one year prior to Plaintiff’s filing of their government claim. (See Gov. Code, § 911.2.) However, the harassment, discrimination, and retaliation allegedly occurred over time. Plaintiffs complain about a course of conduct, not singular incidents. (See Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 325 [an employer may be liable for “conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period”].)

            Defendant also argues that a public employee, and by extension their public employer, are not liable for injury caused by instituting or prosecuting an administrative proceeding. (Gov. Code, §§ 815.2, 821.6.) However, adverse employment actions such as removal, demotion, and the like, are not administrative proceedings. It cannot be said as a matter of law that Defendant is immune from liability for those actions.

            Defendant denies that the employment decisions made Plaintiffs’ jobs more difficult or adversely affected their performance. But Plaintiffs were removed from assignments, delayed in getting promoted, excluded, placed on leave, etc. An adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) This is a triable issue. Defendant’s intent in making such decisions is also an issue of fact.

            In sum, Defendant’s evidence does not preclude Plaintiffs’ claims as a matter of law. At most, the evidence raises a triable issue. Even if Plaintiffs have no probability of success, Defendant’s motion fails on the first prong alone, as discussed above.

CONCLUSION

            Defendant’s special motion to strike is DENIED.