Judge: Lon F. Hurwitz, Case: 2021-01230129, Date: 2022-11-21 Tentative Ruling
MOTION NO. 1: Anti-SLAPP Motion (by Defendants City of Santa Ana, Kristin Ridge, Sonia Carvalho, and Jason Motsick)
MOTION NO. 2: Anti-SLAPP Motion (by Defendant David Valentin)
MOTION NO. 3: Joinder (by Defendant David Valentin to the City Defendants’ Anti-SLAPP Motion)
MOTION NO. 4: Motion for Attorney Fees (by Defendant David Valentin)
FACTS/OVERVIEW:
Complaint. On 11/8/21, plaintiffs Sana Ana Police Officers Association (SAPOA or Association) and Gerry Serrano (Serrano) (collectively, plaintiffs) commenced this action against defendants City of Santa Ana (City), Santa Ana Police Department (SAPD), Chief of Police David Valentin (Valentin), City Manager Kristin Ridge (Ridge), City Attorney Sonia Carvalho (Carvalho), and the City’s Director of Human Resources, Jason Motsick (Motsick) (collectively, defendants), alleging the following six causes of action:
1. Violation of Meyers-Milias-Brown Act (MMBA, Gov. Code, § 3500 et seq.) – against all defendants;
2. Violation of the Public Safety Officers Procedural Bill of Rights Act (POBRA, Gov. Code, § 3300 et seq.) – against all defendants;
3. “Violation of constitutional right to freedom of speech” – against all defendants;
4. Violation of Lab. Code, §§ 1101-1102.5 – against all defendants;
5. Violation of Pen. Code, §§ 832.5-832.8 and/or Evid. Code, §§ 1043-1046 – against defendants City, SAPD, Valentin, Ridge, and Carvalho and;
6. Retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.) – against defendants City and SAPD.
Plaintiff SAPOA is an employee organization representing law enforcement employees of the City of Santa Ana (City), specifically, all non-sworn employees of the Santa Ana Police Department (SAPD), and all sworn employees/officers holding the ranks of police sergeant, correctional supervisor, and below. (See Compl. ¶¶ 1, 3, 4.) Plaintiff Serrano is a police sergeant with the SAPD and president of the Association. (Id. ¶¶ 2, 10.)
The complaint alleges defendants have engaged in repeated, numerous abuses of power, violations of the law (including violations of the MMBA, POBRA, FEHA, and the Penal Code), violations of the MOU between SAPOA and the City, and violations of their own policies and procedures, to retaliate against, threaten, coerce, and silence plaintiffs and members of the SAPOA for complaining about/reporting defendants’ wrongful conduct, which includes, inter alia, defendants’ attempts to cover up police misconduct, attempts to cover up criminal conduct of councilmembers who politically support Valentin (and/or the other individual defendants), workplace harassment and discrimination, creating a divisive and hostile work environment, failing to properly investigate both internal and public citizen complaints of misconduct, and engaging in ongoing retaliation against the Association and its members and anyone who appears supportive of the Association. Plaintiffs further allege that defendants have also engaged in said retaliatory conduct in an attempt to threaten and silence them in the face of what defendants perceive to be plaintiffs’ and/or the Association’s growing influence in certain political/employment matters, and for taking positions adverse to the individual defendants, particularly Chief Valentin, on such issues. The specific misconduct is alleged in detail over 200 paragraphs in the 46-page complaint.
REMOVAL/REMAND:
On 1/24/22, the City, SAPD, Ridge, Carvalho, and Motsick removed this action to the United States District Court for the Central District of California.
On 2/18/22, the District Court entered an order remanding the case back to this court pursuant to the parties’ stipulation (after the District Court evinced an intent to remand it back for lack of jurisdiction). (See ROA No. 64 [2/18/22 remand order].)
The case was restored to this department as of 2/23/22. (See 2/23/22 Minute Order.)
Demurrers. On 7/20/22, the court heard, inter alia, several demurrers to complaint.1 The court sustained Valentin’s demurrer to the 1st through 5th causes of action (i.e., the only causes of action alleged against Valentin), with 20 days leave to amend. The court overruled the remaining defendants’ demurrers. (See 7/20/22 Minute Order.)
Answers. On 8/23/22, the City, “on behalf of itself and its non-jural entity, [SAPD],” answered the complaint. (ROA No. 224.) On 8/23/22, defendants Ridge, Carvalho, and Motsick also answered the complaint. (ROA No. 226.)
Valentin dismissed with prejudice. After Valentin’s demurrer to complaint was sustained with leave to amend, plaintiffs did not file a first amended complaint. Once the time to amend expired, Valentin filed an ex parte application for order of dismissal, which the court granted on 8/22/22. (8/22/22 Minute Order.) On 8/26/22, a formal order dismissing Valentin from the action with prejudice was entered accordingly. (8/26/22 Order.) On 8/31/22, Valentin gave notice of the entry of dismissal. (8/31/22 Notice of Entry of Dismissal.)
Ridge, Carvalho, and Motsick dismissed with prejudice. On 9/20/22, the court entered an order pursuant to the parties’ stipulation, dismissing defendants Ridge, Carvalho, and Motsick from the complaint with prejudice, in exchange for a waiver of costs to date. The stipulation and order also specifically provides that “[n]o monetary award shall be sought by or on behalf of Kristin Ridge, Sonia Carvalho, and Jason Motsick in connection with the pending [anti-SLAPP motion]” jointly filed by the City and these three dismissed individual defendants. (9/20/22 Stip. & Order.)
The only named defendants that remain are now the City and SAPD.
No other hearings are currently scheduled on calendar. There is no trial date.
MOTION NO. 1 – ANTI-SLAPP MOTION BY DEFENDANTS CITY OF SANTA ANA, KRISTIN RIDGE, SONIA CARVALHO, AND JASON MOTSICK
MOVING PARTY (MP): Defendants City of Santa Ana, Kristin Ridge, Sonia Carvalho, and Jason Motsick.
RESPONDING PARTY (RP): Plaintiffs Santa Ana Police Officers Association and Gerry Serrano.
POS: 2/22/22 by email; timely. (See Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679 [“defendants were entitled to a new 60 day period after remand from the federal court in which to refile their SLAPP motions”]; see also ROA No. 64 [2/18/22 remand order].)
OPP: 10/13/22 by e-service; timely. The proof of service fails to comply with the requirements for proof of electronic service (see Code Civ. Proc., § 1013b, subd. (b)), but this is of no consequence here as a substantive reply has been filed, effectively waiving the defect.
REPLY: 10/19/22 by email; timely. The proof of service technically fails to comply with the requirements for proof of electronic service by failing to state the email address of the person making service. (See Code Civ. Proc., § 1013b, subd. (b)(1).) Court will find substantial compliance with the service requirements (the proof of service states the recipients’ email addresses, and the email address of counsel for the moving party is provided elsewhere in the attached document), and excuse the defect (see Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 443 [substantial compliance with proof of service requirements sufficient]).
RELIEF SOUGHT:
Defendants City of Santa Ana, Kristin Ridge, Sonia Carvalho, and Jason Motsick seek an order striking the first, third, and fourth causes of action for violation of Meyers-Milias-Brown Act, “violation of constitutional right to freedom of speech,” and violation of Labor Code sections 1101-1102.5, pursuant to Code of Civil Procedure section 425.16. The City defendants also seek an award of attorney fees in an unspecified amount, pursuant to Code of Civil Procedure section 425.16, subdivision (c).
REQUEST FOR JUDICIAL NOTICE:
On reply, the City requests judicial notice of a Public Employment Relations Board (PERB) decision, Santa Clara County Correctional Peace Officers Association v. County of Santa Clara (June 15, 2015), PERB Decision No. 2431-M. (City RJN at Ex. 1.)
The request is granted. (See Evid. Code § 452, subd. (c) [official acts of executive department]; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750 [court may take judicial notice of official agency acts/decisions].) PERB decisions are persuasive authority on legal matters within its expertise. (See City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1288.)
OBJECTIONS:
Both sides have filed objections. Plaintiffs have filed 17 objections to the City’s evidence presented with its moving papers; and the City has filed 14 objections to plaintiffs’ evidence presented in support of the opposition. (See ROA Nos. 261 [plaintiffs’ objections], 279 [City’s objections].)
The Court rules as follows as to plaintiffs’ objections to City’s evidence (ROA No. 261):
1. Overrule.
2. Overrule.
3. Overrule.
4. Overrule.
5. Sustain, hearsay, irrelevant.
6. Overrule.
7. Overrule.
8. Overrule.
9. Sustain only as to exhibits I and J for lack of foundation/personal knowledge and hearsay, and overrule as to exhibit H.
10. Overrule.
11. Sustain, lacks foundation/personal knowledge.
12. Overrule.
13. Overrule.
14. Overrule.
15. Overrule.
16. Sustain, legal conclusion.
17. Overrule.
The Court rules as follows as to the City’s objections to plaintiffs’ evidence (ROA No. 279): All objections are overruled.
ANALYSIS:
A. Housekeeping
Originally, this anti-SLAPP motion was jointly brought by the City, on behalf of itself and SAPD, and Ridge, Carvalho, and Motsick. On 9/20/22, the court entered an order pursuant to stipulation dismissing Ridge, Carvalho, and Motsick from the action with prejudice. As such, the motion is moot to the extent it has been brought by these individual defendants, but remains at issue to the extent it has been brought by the City, on behalf of itself and SAPD.
B. Timeliness
As an initial matter, the parties dispute whether this motion is timely. (Compare Motion P&As at p. 9, with Opp. at p. 3.)
Ordinarily, an anti-SLAPP motion must be filed within 60 days of the service of the complaint, and the court has the discretion to deny an anti-SLAPP motion filed past that deadline without considering its merits. (See Code Civ. Proc., § 425.16, subd. (f) [the “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”]; Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1186; Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 682.)
This 60-day time period restarts, however, upon remand of a case from federal court to state court. (See Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679 [“defendants were entitled to a new 60 day period after remand from the federal court in which to refile their SLAPP motions”].)
Here, this action was removed to the U.S. District Court for the Central District of California on 1/24/22, and the District Court entered its order remanding it back to this court on 2/18/22. (See ROA No. 64 [2/18/22 remand order].) Defendants timely filed this motion on 2/22/22, just days after the order of remand, and well within this deadline.
Accordingly, the Court finds the motion timely.
C. Anti-SLAPP Framework
Code of Civil Procedure section 425.16 authorizes a special motion to strike claims arising from any act “in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1); see id., § 425.16, subd. (e).) This so-called anti-SLAPP statute “allows defendants to request early judicial screening of legal claims targeting free speech or petitioning activities” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880-881 (Wilson)), and its provisions must be construed broadly towards this purpose (see Code Civ. Proc., § 425.16, subd. (a)).
The resolution of an anti-SLAPP motion involves two steps or prongs. First, the moving defendant must show that the challenged claim arises from constitutionally protected free speech or petition rights. (Baral v. Schnitt (2016) 1 Cal.5th 376, 381-382, 396.) If the defendant makes the requisite showing at the first stage, the burden then shifts to the plaintiff to demonstrate the claim’s merit by establishing a probability of success. (Id. at p. 396.)
D. Public Interest Exception – Code Civ. Proc., § 425.17, subd. (b)
A threshold issue on this motion is whether the public interest exception provided under Code of Civil Procedure section 425.17, subdivision (b) defeats the City’s anti-SLAPP motion. Plaintiffs contend that regardless of whether the City meets its burden to show the subject claims arise out of protected activity, the anti-SLAPP statute does not apply because these claims have been brought solely in the public interest, and are therefore exempt from its application under the public interest exception. (See Opp. at pp. 12-13.)
Plaintiffs’ reliance on the public interest exception fails. Code of Civil Procedure section 425.17(b) provides, in full:
[The Anti-SLAPP statute] does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:
(1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision.
(2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.
(3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter.
(Code Civ. Proc., § 425.17, subd. (b).)
“The [public interest] exception applies only when the entire action is brought in the public interest. If any part of the complaint seeks relief to directly benefit the plaintiff, by securing relief greater than or different from that sought on behalf of the general public, the section 425.17(b) exception does not apply.” (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 312; accord, Cruz v. City of Culver City (2016) 2 Cal.App.5th 239, 248 [“section 425.17, subdivision (b) does not apply to a party seeking any personal relief”].)
Plaintiffs’ complaint undeniably seeks relief for plaintiffs greater or different from that sought on behalf of the general public. (See, e.g., Compl. ¶¶ 163, 166, 167 & at pp. 44-46 [prayer].) Accordingly, the public interest exception of section 425.17(b) does not apply.
E. First Prong – Protected Activity
The City must make two related showings to meet its moving burden to show that the subject claims arise from protected activity within the meaning of the anti-SLAPP statute. (Wilson, supra, 7 Cal.5th at p. 887.) First, it must show that the subject conduct falls within one of the four statutorily protected categories of activity described in Code of Civil Procedure section 425.16, subdivision (e)2 (section 425.16(e)). Next, it must show that the subject claims arise out of that protected conduct. (Wilson, at p. 887; Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).)
(i) Subject Instances of Alleged Misconduct
Here, the City’s anti-SLAPP motion is directed at only the first, third, and fourth causes of action for violation of Meyers-Milias-Brown Act (MMBA, Gov. Code, § 3500 et seq.), “violation of constitutional right to freedom of speech,” and violation of Labor Code section 1101-1102.5, to the extent that these claims are based on six specific categories of speech/activity. (See Motion P&As at pp. 7, 9-19.)
The City actually contends it is challenging “five” instances of alleged misconduct, but it makes more sense to separate them into six categories of conduct as follows. The six specific instances of alleged misconduct are:
1. Valentin’s advocating for/encouraging a change of leadership in the SAPOA. Specifically, the allegation that the City’s Chief of Police, defendant Valentin, “has engaged in action to advocate for a change of leadership in the SAPOA,” including by “encouraging candidates to run against Serrano for the position of Association President....” (Compl. ¶ 18; City Motion P&As at p. 11:10-20.)
2. Valentin ordering his internal affairs commander and investigators to conduct an investigation of Serrano regarding the “campaign signs” incident. Specifically, the complaint alleges plaintiffs reported the theft of campaign signs advocating the recall of “City Councilmember Iglesias,” where one of the identified suspects was the targeted City Council member herself, but that a police commander directed the investigating officer to alter his police report concerning the incident to omit the name of the City Council member as a suspect. (See Compl. ¶¶ 22-23.) Plaintiffs allege that when they reported the above to Valentin, “Valentin ordered his Internal Affairs commander and investigators to conduct an investigation of Serrano,” instead of investigating the unlawful actions of the police commander. (Compl. ¶ 23; City Motion P&As at p. 12:22-23.)
3. Valentin’s and Caravalho’s requests to the Orange County District Attorney’s office to open a criminal case against Serrano, and communications with the Orange County District Attorney’s office regarding the same. Specifically, the complaint alleges that when plaintiffs “obtained a video recording showing the former City Council person stealing the campaign signs, Defendant Valentin, Defendant Carvalho and other private attorneys employed by her firm, directly and through Valentin’s supporters pressured the Orange County District Attorney’s office to open a criminal case against Serrano. ... With the help of Defendant Carvalho and her private law firm, he began a lengthy letter and meeting campaign in which he chastised the District Attorney’s decision and knowingly included false information in the communications with the District Attorney’s office.” (Compl. ¶ 24; City Motion P&As at pp. 12:26-13:5.) “As [a] part of [this] April[] 2020[] effort[] to wrongfully bring a criminal case against Serrano, Defendants used department resources, including the Internal Affairs Unit, to draft memoranda with adverse comments about Serrano.” (Compl. ¶ 25; City Motion P&As at p. 13:6-8.)
4. Defendants’ CalPERS inquiry regarding Serrano’s “confidential” premium pay/pension payments. Specifically, the complaint alleges that in October 2020, “Defendants inquired of CalPERS as to the propriety of including a premium pay, called ‘Confidential’ received by Serrano while on paid release time to serve as the SAPOA President in its calculation of his pension.” (Compl. ¶ 30; City Motion P&As at p. 14:7-14.)
5. Carvalho’s request to the California Fair Political Practices Commission (FPPC) seeking a finding that Serrano, as the SAPOA President, engaged in a conflict of interest by negotiating a side letter agreement related to the pension issue. Specifically, the complaint alleges that in November 2020, “Sonia Carvalho, believed to be acting on her own personal vendetta and without City Council approval sent a request to the California Fair Political Practices Commission seeking a finding that Serrano, as the SAPOA President, engaged in a conflict of interest by negotiating a side letter agreement related to the pension issue. As the City Council was scheduled to approve the resolution of the pension issue, Carvalho made multiple inquires to the FPPC for an opinion letter finding Serrano was engaging in an unethical conflict of interest. It is believed that Carvalho was acting on her own and with the sole purpose of personally interfering with the SAPOA/Serrano and/or with intent to harm Serrano.” (Compl. ¶ 31; City Motion P&As at p. 14:15-23.)
6. Valentin ordering an investigation against Serrano based on alleged comments Serrano made in his capacity as the president of SAPOA about a former SAPOA president. Specifically, the complaint alleges that “[o]n 5/27/22, Defendant Valentin ordered an investigation of Serrano based on alleged comments Serrano made in his capacity as the current President of the SAPOA about a former SAPOA President in October, 2020,” even after the City’s legal counsel had indicated in writing that to the extent Serrano’s statements were made as SAPOA President, Serrano was not speaking as a police sergeant of the City or the SAPD, and thus, City was not able to restrict said speech. (Compl. ¶ 58; City Motion P&As at pp. 16:21-
17:4.) Also related to the above is the allegation that “[i]t appeared that the City was not going to take action on the frivolous complaint, but Defendant Valentin and possibly others, in order to further retaliate against Serrano and the SAPOA, initiated the investigation nine months later ....” (Compl. ¶ 60; City Motion P&As at p. 17:10-15.)
Only these six specific instances are at issue in the City’s anti-SLAPP motion, and the City’s anti-SLAPP motion only properly seeks to strike the three subject causes of action (first, third, and fourth) to the extent they are based on these six specific instances.
To the extent the City’s anti-SLAPP motion may be attempting to strike the subject causes of action in their entirety, they have failed to meet their initial burden to show that the numerous other factual bases alleged in support of these claims arise from protected activity. (See Wilson, supra, 7 Cal.5th at pp. 884, 887 [it is the defendant’s burden to show how any part of a claim arises from protected activity]; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1211 (Bonni) [“If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims”].)
As for whether the City has met its initial burden as to the six specific instances of conduct listed above—each is addressed in turn below.
Briefly, the motion is moot to the extent it concerns the conduct under No. 5; the City has failed to meet its initial burden to show the subject causes of action arise out of protected activity to the extent they are based on the conduct under Nos. 1, 2, and 6; and the City has met its initial burden to show the subject claims arise out of protected activity to the extent they are based on the conduct under Nos. 3 and 4.
(ii) Instance of Alleged Misconduct No. 5
First, the conduct listed above as No. 5 is attributed solely to defendant Carvalho, “acting on her own personal vendetta and without City Council approval.” (Compl. ¶ 31.) Because Carvalho is no longer a party to this suit, and because the subject conduct is not alleged against the City, the motion is moot to the extent it challenges this portion of the complaint.
(iii) Instance of Alleged Misconduct No. 1
The instance of alleged misconduct listed above as No. 1 consists of Valentin advocating for/encouraging a change of leadership in the SAPOA. (See City Motion P&As at pp. 11-12.)
To be clear—as the City has framed it, the specific conduct at issue under No. 1 consists solely of the mere advocacy for a change in SAPOA leadership and encouraging of other candidates to run against the present leadership, and does not include any of the other misconduct alleged in paragraph 18 of the complaint or elsewhere. (See City Motion P&As at p. 11:10-20 [quoting portions of paragraph 18 of the complaint in bold, and taking issue with only the language in bold].)
While the advocacy and encouragement for a change in employee association/union leadership constitutes protected activity within the meaning of the anti-SLAPP statute (see Code Civ. Proc., § 425.16, subd. (e)(4); see also Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673-674 [union election and speech regarding candidates/officers for labor organization/union are matters of public interest/a public issue]), the City fails to show that the subject causes of action “arise” from this activity, i.e., that defendants’ mere advocacy and encouragement for a change in leadership forms the basis for liability under these claims. (See Park, supra, 2 Cal.5th at p. 1062 [a claim “arises from” protected activity when that activity underlies or forms the basis for the claim].)
Here, the subject claims are not based on defendants’ mere advocacy for or encouragement of a change in SAPOA leadership. Rather, they are based on the manner in which this was done—such as, for example, by questioning the Association’s members as to whether they support Serrano (the current president) or not, when the members seek special assignments and promotions. (Compl. ¶ 18.) Stated another way, it is how defendants advocated for/encouraged a change in leadership, and not the mere fact that they advocated/encouraged the change, that forms the basis upon which the claims are based.
As such, the City has failed to show that the subject claims “arise from” the conduct listed above as No. 1. (See Wilson, supra, 7 Cal.5th at p. 884 [moving burden].)
(iv) Instances of Alleged Misconduct Nos. 2 & 6
Next, with respect to the instances of conduct listed above as Nos. 2 and 6—i.e., Valentin’s decision to open the subject investigations against Serrano (see Compl. ¶¶ 23, 58, 60)—the court previously commented (but did not decide) in connection with a related motion (a motion to conduct anti-SLAPP discovery) that it appeared this conduct did not constitute protected activity because the decision to open the investigations was separate and distinct from Valentin’s speech made to implement/express those decisions, primarily relying on Park, supra, 2 Cal.5th at pp. 1066-1068.
With respect to this issue, plaintiffs’ opposition essentially just echoes the court’s prior observation in a lengthier format. And on reply, the City reiterates the argument in its moving papers that a police department’s internal investigations constitute an “official proceeding” and that Valentin’s orders commencing such investigations therefore constitute protected activity under section 426.16(e). (See Reply at p. 6 [citing Hansen v. Dept. of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544, as holding that “all statements relative to [an] investigation of [the] plaintiff-officer of crimes were protected even though charges were never filed”].) The City then argues that the court should “reject Plaintiffs’ proposed reading of [Park] as suggesting that the ‘decision’ to investigate a third-party complaint against Serrano, without more, is unprotected conduct” (Reply at p. 6, italics added); and then appears to distinguish Park by arguing the subject “decision” in Park was not the decision to initiate the investigation (as is the situation here), but rather, the decision reached by the process of that investigation (the denial of tenure to the professor plaintiff). (See Reply at pp. 6-7.) The City then backtracks by admitting that Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745 (Laker) “supports the proposition that an investigation may constitute adverse employment action in the anti-SLAPP context,” but then argues Laker cannot “reasonably be read as implementing a per se rule that any investigation constitutes an adverse employment action, or that the decision to investigate is not protected activity, as a matter of law.” (Reply at pp. 7-8.)
Here, the subject first, third, and fourth causes of action are based in part on the alleged misconduct listed above under Nos. 2 and 6—i.e., the City’s alleged retaliation against plaintiffs/Serrano for their SAPOA activities and/or for reporting the misconduct of a police commander who unlawfully altered a police report. Plaintiffs allege Valentin committed this retaliation by subjecting Serrano to the subject meritless/unfounded investigations. (See Compl. ¶¶ 22-23, 58-60.)
Laker provides that the decision to subject an employee to a meritless investigation does not constitute protected activity under the anti-SLAPP statute, and is directly on point. Specifically, Laker provides, in pertinent part: “Applying the test articulated by the Supreme Court in Park, we conclude that [plaintiff] Laker’s allegation that the [defendant] University retaliated against him by pursuing three investigations of him arises from unprotected conduct. ‘[W]hile discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant ... subjected the plaintiff to a burden,” such as the burden of having to undergo a meritless investigation, “on account of a ... retaliatory consideration.” (Id. at pp. 772-773.) “ ‘Failing to distinguish between the challenged decisions and the speech that leads to them or thereafter expresses them “would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power.” ’ (Park, supra, 2 Cal.5th at p. 1067....)” (Laker, at p. 773; see also id., at pp. 773-777 [distinguishing Hansen v. Dept. of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537 and Gallanis–Politis v. Medina (2007) 152 Cal.App.4th 600, and noting their limited utility after Park].)
This is precisely what is alleged here—i.e., that defendants retaliated against plaintiffs by subjecting Serrano to the burden of having to undergo meritless investigations. (See Compl. ¶¶ 22-23, 58-60.) As Laker holds, the allegations that defendants “retaliated against [plaintiffs] by pursuing three investigations of [plaintiffs/Serrano]” arise from unprotected conduct.” (Laker, at p. 772-773.)
Accordingly, the City has failed to meet its initial burden to demonstrate the subject claims arise from the alleged misconduct listed above under Nos. 2 and 6.
(v) Instances of Alleged Misconduct Nos. 3 & 4
The City has shown that the remaining instances of conduct listed above as 3 and 4 (see Compl. ¶¶ 24, 25, 30) constitute protected activity. These instances of alleged misconduct consist of statements made in connection with a potential criminal/other official investigation to an executive body charged with the decision/authority to conduct the investigation/review. Such conduct falls within the purview of the anti-SLAPP statute. (See Code Civ. Proc., § 425.16, subd. (e)(2); see also Bonni, supra, 11 Cal.5th at pp. 1017-1018; Lee v. Fick (2005) 135 Cal.App.4th 89, 96 [communications to an official agency intended to induce the agency to initiate action are part of an official proceeding].) And the subject claims allege the defendants violated plaintiffs’ rights under the MMBA (first cause of action), the Labor Code sections 1101-1102.5 (fourth cause of action), and/or the Constitution (right to free speech, third cause of action) by engaging in this conduct, causing plaintiffs harm. (See, e.g., Compl. ¶¶ 96, 103-104, 106, 144, 148, 156, 161-163.)
Thus, City has shown that the subject claims arise from protected activity to the extent that they are based on the instances of alleged misconduct listed above as Nos. 3 and 4.
F. Second Prong – Probability of Prevailing
Because the City has met its burden to show that the first, third, and fourth causes of action arise from protected activity to the extent they are based on instances of conduct Nos. 3 and 4—the second step of the anti-SLAPP analysis now requires the plaintiffs to demonstrate at least some “minimal” merit to their first, third, and fourth causes of action to the extent they are based on these instances of alleged misconduct. (See Bonni, supra, 11 Cal.5th at p. 1019.) If they cannot, these claims will be stricken to the extent they rely on this conduct. (Ibid.)
Plaintiffs have failed to meet this burden, as further discussed below.
(i) First Cause of Action for Violation of MMBA
In the City’s moving papers, City argues that plaintiffs will not be able to demonstrate that their first cause of action for violation of the MMBA has any merit because this court lacks initial jurisdiction over it, and plaintiffs have failed to exhaust their administrative remedies under the MMBA prior to bringing this claim. (See City Motion P&As at pp. 17-18.)
The City is correct that PERB has exclusive initial jurisdiction over claims for violations of the MMBA. “In 2000, the Legislature enacted [Government Code] section 3509 [citation], which explicitly extended PERB’s jurisdiction to cover matters arising under the MMBA. Section 3509, subdivision (b), provides: ‘A complaint alleging any violation of [the MMBA] ... shall be processed as an unfair practice charge by [PERB]. The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of [PERB]....’ ... This enactment removed ‘from the courts their initial jurisdiction over MMBA unfair practice charges’ [Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089 (Coachella Valley)] and vested exclusive initial jurisdiction in PERB. (Id. at p. 1077, 29 Cal.Rptr.3d 234, 112 P.3d 623; accord, City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 605–606, 110 Cal.Rptr.3d 718, 232 P.3d 701 (San Jose).)” (San Diego Municipal Employees Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1456, original italics; see also Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019) 42 Cal.App.5th 918, 929 [union’s filing of action in its own name does not exempt it from the exhaustion of administrative remedies requirement, absent an exception].)
Plaintiffs have failed to address this challenge in their opposition. (See Opp. at pp. 13-16.) Plaintiffs have not presented any argument or evidence showing that plaintiffs exhausted their administrative remedies before bringing this claim in court, or that any exception to the exhaustion requirement applies.
Accordingly, the City’s motion as to the First Cause of Action alleging violation of the MMBA is granted.
(ii) Third Cause of Action for “Violation of Constitutional Right to Freedom of Speech”
Plaintiffs have also failed to demonstrate a probability of prevailing on their Third Cause of Action for violation of the right to freedom of speech to the extent it is based on the subject instances of misconduct.
The freedom of speech provisions of the California Constitution do not necessarily give rise to a private right of action. Whether the cause of action exists depends on a consideration of certain factors set forth in Katzberg v. Regents of University of California (2002) 29 Cal.App.4th 300, 324-329 (Katzberg), and whether those factors weigh in favor of recognizing the claim as alleged. (See McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1215 (McAllister); see also Degrassi v. Cook (2002) 29 Cal.4th 333, 342 (Degrassi).) “The Katzberg factors are (1) the adequacy of existing remedies; (2) the extent to which a constitutional tort action would change established tort law; (3) the nature of the provision and the significance of the purpose that it seeks to effectuate; and (4) whether the creation of a damages action might produce adverse policy consequences or practical problems of proof.” (McAllister, at p. 1215.)
Plaintiffs entirely fail to address whether their third cause of action is or should be viable to the extent it is based on the subject instances of alleged misconduct. There is zero reference to any of the Katzberg factors or any argument that this claim should be recognized. Instead, plaintiffs merely contend that the alleged misconduct inhibits and thus violates their right to free speech in violation of Article 1, section 2 of the California Constitution, which grants them that right. (See Opp. at p. 16.)
The Katzberg factors militate against recognition of the claim based on the subject instances of alleged misconduct. This is because plaintiffs have meaningful alternative remedies for the alleged misconduct under the MMBA and/or Labor Code section 1102.5, which already afford plaintiffs a claim for the damages/injunctive relief that they seek under this cause of action based on the same subject conduct. (See Gov. Code, § 3500 et seq.; see also Lab. Code, § 1102.5.) As plaintiffs recognize in their complaint and opposition, the MMBA protects an employee’s right to form, join, and participate in the activities of employee organizations; and prohibits public agencies/employers from threatening, discriminating, punishing/imposing reprisals against, retaliating against, coercing, intimidating, or restraining a public employee from exercising or otherwise interfering with that right. (See, e.g., Gov. Code, §§ 3502, 3506, 3506.5.) And Labor Code section 1102.5 already protects public employees from whistleblower retaliation for reporting unlawful conduct/practices. (See Lab. Code, §§ 1102.5, 1106.)
Allowing a separate constitutional claim for relief based on conduct that the MMBA and Labor Code section 1102.5 already cover would allow a plaintiff to bypass or circumvent the other requirements/restrictions of these statutes (such as the need to exhaust administrative remedies before bringing an MMBA claim and PERB’s exclusive initial jurisdiction over such claims), and produce adverse policy consequences as a result. This precludes recognition of a claim for a violation of the right to free speech based on the specific instances of alleged misconduct. (See Degrassi, supra, 29 Cal.4th at pp. 342-343; see also McAllister, supra, 216 Cal.App.4th at pp. 1215-1217.)
Accordingly, the City’s motion is granted as to the third cause of action for violation of right to freedom of speech.
(iii) Fourth Cause of Action for Violation of Labor Code Sections 1101-1102.5
As for the fourth cause of action, it alleges that the City (which includes the SAPD) have retaliated against plaintiffs by engaging in, among other things, the subject instances of misconduct set forth hereinabove, in violation of Labor Code section 1101-1102.5.
Plaintiffs have failed to show a probability of prevailing on this claim to the extent it relies on Labor Code sections 1101 and 1102, which prohibit retaliation against employees for participating in politics or engaging in political activities or affiliations, because these sections do not apply to public employees or public employers. Unless Labor Code provisions are expressly made applicable to public employees/employers, they only apply to employees/employers in the private sector. (California Correctional Peace Officers' Assn. v. State of California (2010) 188 Cal.App.4th 646, 652-653; accord, Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5th 327, 338-339.) While the Labor Code does explicitly state that some of its provisions are applicable to public employees/employers, sections 1101 and 1102 are not among those provisions. (See Lab. Code, § 1106; see also Eldridge v. Sierra View Local Hospital Dist. (1990) 224 Cal.App.3d 311, 317, fn. 2; Gov. Code, §§ 3201, 3203, 3207.) Thus, sections 1101 and 1102 do not provide plaintiffs with a basis for relief against the City.
This leaves Labor Code section 1102.5, California’s whistleblower statute, “the purpose of which is to ‘encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287.)
Labor Code section 1106 expressly provides that for purposes of section 1102.5, the term “ ‘employee’ includes, but is not limited to, any individual employed by ... any county, city, [or] city and county....” (Lab. Code, § 1106.)
This certainly includes plaintiff Serrano, a police officer employed by the City/SAPD. (See Ridge Decl. ¶ 4.) It is less clear whether this also includes plaintiff SAPOA, which is not an “individual,” but rather, an association comprised of such individuals, charged with representing such employees. However, this is inapplicable as to this Motion because neither Plaintiff has demonstrated a probability of prevailing on the merits of this claim to the extent it is based on the alleged misconduct under Nos. 3 and 4 hereinabove.
This is because the alleged misconduct listed above as Nos. 3 and 4 is absolutely privileged under the litigation privilege [Civil Code section 47, subdivision (b)], and thus cannot form the basis for liability under any of plaintiffs’ claims. First, regarding the conduct under No. 3, i.e., statements made to the DA requesting that the DA open a criminal case against Serrano—such statements made to the DA requesting a criminal investigation are absolutely privileged, irrespective of malice, and thus plaintiffs will not be able to demonstrate a probability of prevailing on their claims to the extent liability is based on these statements. (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [letter to the Attorney General requesting and soliciting investigation is absolutely privileged under Civ. Code, § 47, subd. (b), irrespective of malice]; see also Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1389-1391 (Braun) [official proceeding privilege applies to such statements because a communication to an official administrative agency, which communication is designed to prompt action by that agency, is as much a part of the “official proceeding” as a communication made after the proceedings have commenced].)
The same is true with respect to No. 4, i.e., defendants’ inquiry to CalPERS regarding the propriety of Serrano’s premium pension payments. Such a communication made in connection with a potential government investigation to an official executive body such as CalPERS is also absolutely privileged. (See Braun, supra, 67 Cal.App.4th at pp. 1389-1391.)
Accordingly, the City’s motion as to the first, third, and fourth causes of action, to the extent those claims are based on the instances of alleged misconduct listed above under Nos. 3 and 4, is granted.
G. Attorney Fees
The City’s moving papers also request attorney fees under the anti-SLAPP statute, Code of Civil Procedure section 425.16, subdivision (c). The City has not, however, identified any particular amount of fees it is seeking, or substantiated any such fees with declarations and/or other evidence.
As such, the Court denies the request for attorney fees without prejudice. (See Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 777 [alternative procedures by which a party may seek attorney fees on a special motion to strike]; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461 [same].)
MOTION NOS. 2 & 3 – ANTI-SLAPP MOTION BY DEFENDANT DAVID VALENTIN & DEFENDANT DAVID VALENTIN’S JOINDER TO THE CITY DEFENDANTS’ ANTI-SLAPP MOTION
MOVING PARTY (MP): Defendant David Valentin
RESPONDING PARTY (RP): Plaintiffs Santa Ana Police Officers Association and Gerry Serrano
POS: 2/22/22 & 2/23/22 by email; timely. (See Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679 [“defendants were entitled to a new 60 day period after remand from the federal court in which to refile their SLAPP motions”]; see also ROA No. 64 [2/18/22 remand order].)
OPP: 10/13/22 by eservice; timely.
REPLY: 10/19/22 by email; timely.
RELIEF SOUGHT:
Defendant David Valentin seeks to join in the City defendants’ anti-SLAPP motion, and requests the same relief sought in that motion as to Valentin. (See ROA No. 51 [joinder].)
Defendant David Valentin also separately seeks an order striking the complaint in its entirety and/or each cause of action alleged against him pursuant to Code of Civil Procedure section 425.16. (See ROA Nos. 53, 41, 43 [Valentin’s anti-SLAPP motion and supporting papers].)
ANALYSIS:
A. Valentin’s Request for Joinder and Anti-SLAPP Motion are Technically Moot, but Remain Relevant to his Fee Motion.
Valentin was dismissed from this action with prejudice as of 8/22/22. (8/22/22 Minute Order; 8/26/22 Order of Dismissal.) Thus, his anti-SLAPP motion and joinder to the City defendants’ anti-SLAPP motion are technically moot.
An analysis on his request for joinder and separate anti-SLAPP motion remains necessary, however, as Valentin has filed a motion for attorney fees pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16, subdivision (c). This is because whether Valentin is entitled to attorney fees under the anti-SLAPP statute depends on whether his joinder to the City’s anti-SLAPP motion, as well as his own separate anti-SLAPP motion, would have been successful. (See Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 821 [upon defendant’s motion for a fee award, court must determine merits of the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion]; see also White v. Liberman (2002) 103 Cal.App.4th 210, 220 [defendant’s entitlement to attorney fees under SLAPP statute remains at issue even if the defendant’s demurrer is heard first and sustained without leave to amend].)
B. Joinder to the City’s Anti-SLAPP Motion
Valentin’s request for joinder properly joins in the City’s anti-SLAPP motion by adopting and incorporating by reference all of the City’s arguments and all concurrently filed papers with respect thereto, and by requesting the same relief as to Valentin. (See ROA No. 51 [Valentin’s joinder to City’s anti-SLAPP motion].) Therefore, Valentin’s joinder to City’s anti-SLAPP motion would have been successful. And, as such, Valentin would have been equally as successful as the City on that motion.
C. Valentin’s Separately Filed Anti-SLAPP Motion
As for Valentin’s own, separately-filed anti-SLAPP motion, it challenges all five of the causes of action alleged against Valentin—i.e., the first through fifth causes of action for violation of the MMBA, violation of POBRA, “violation of constitutional right to freedom of speech,” violation of Labor Code section 1101-1102.5, and violation of various provisions of the Penal Code and Evidence Code—to the extent each is based on nearly every single instance of misconduct alleged in the complaint. (See Valentin’s Anti-SLAPP Motion at pp. 13-19.)
Specifically, Valentin contends that all five causes of action as alleged against him arise from and are based on the following instances of protected activity:
1. Valentin’s alleged “ ‘fail[ure] to initiate an investigation’ into police employees for allegedly spreading nondescript rumors about Plaintiffs.
(Complaint at ¶¶ 19-20).” (Valentin SLAPP Motion at p. 16.)
2. Valentin “ordering an investigation of Serrano in relation to his involvement in an investigation into theft of campaign signs (Complaint at ¶¶ 22-23).” (Valentin SLAPP Motion at p. 16.)
3. Valentin “requesting that the Orange County DA open a criminal investigation into Serrano (Complaint at ¶¶ 24-25).” (Valentin SLAPP Motion at pp. 16, 18-19.)
4. “[T]he manner in which [Valentin] conducted an investigation into an alleged incident involving off-duty police officers, and initiating said investigation on a later date than Plaintiffs wanted (Complaint at ¶¶ 26-29).” (Valentin SLAPP Motion at p. 16.) The portions of the complaint that Valentin cites to in support of this instance of alleged misconduct in his anti-SLAPP motion (i.e., Compl. ¶¶ 26-29), show that the subject conduct here consists of Valentin’s failure to initiate an investigation of the subject incident sooner than he did (the incident occurred in August 2020; [Valentin opened investigations against two of the three officers involved in June 2021] and his failure to investigate certain officers at all. (See id. ¶¶ 28-29.)
5. “[T]he manner in which [Valentin] conducted an investigation into alleged discrimination against female police officers (Complaint at ¶¶ 32-37).” (Valentin SLAPP Motion at p. 16.) The portions of the complaint that Valentin cites to in support of this instance of alleged misconduct in his anti-SLAPP motion (i.e., Compl. ¶¶ 32-37), show that the subject conduct here consists of Valentin’s lies to Ridge and Motsick “claiming that he had initiated an investigation of the discrimination” and harassment against female employees reported by plaintiffs, “when, in fact, he [had] initiated an investigation of the [complaining] female officers [instead] in order to silence them”; and Valentin’s/City’s failure to hire an investigator to look into these issues of harassment and discrimination until five months after the reports were made. (Id. ¶¶ 32-33, 34, 35.)
6. Valentin’s failure to “conduct[ ] an investigation of himself when Plaintiffs demanded such investigation (Complaint at ¶¶ 51-53).” (Valentin SLAPP Motion at p. 16.)
7. Valentin “ordering an investigation of Serrano (Complaint ¶¶ 58-60).” (Valentin SLAPP Motion at pp. 16-17.)
8. Defendants’ inquiry to “CalPERS as to the propriety of including a premium pay[] in Plaintiffs’ pension. (Complaint ¶ 30.)” (Valentin SLAPP Motion at pp. 17, 19.)
9. Valentin allegedly “spying” on “Serrano and members of the Santa Ana City Council by ‘redirecting copies of all e-mail communications sent by Serrano to City Councilmember Solorio ... to his office’ and ... ‘put[ting] a tracer’ on Serrano’s emails. (Complaint ¶ 16.)” (Valentin SLAPP Motion at p. 17.)
10. Valentin’s decision to place Serrano on administrative leave and ordering him to submit to a fitness for duty exam. (Valentin SLAPP Motion at p. 17, citing Compl. ¶¶ 79-90.)
11. Valentin “advocating for a change in SAPOA leadership and encouraging candidates to run against Serrano. (Complaint ¶ 18.)” (Valentin SLAPP Motion at p. 18.) Specifically, Valentin argues: “Plaintiffs assert that Chief Valentin would question members’ support for Serrano when they seek assignments and promotions, but Plaintiffs have failed to identify any specific person actually affected by such conduct. Plaintiffs have also failed to allege that Chief Valentin took any adverse action against such applicants. Beyond conclusory allegations, all that remains are assertions that Chief Valentin engaged in protected conduct of expressing opinions about Serrano and SAPOA.” (Ibid.)
12. Valentin’s censorship of membership communications and denial/termination of the SAPOA’s ability to send membership communications via the City’s email system. (Valentin SLAPP Motion at p. 18, citing Compl. ¶¶ 17, 47.)
For ease of reference, the foregoing instances of alleged misconduct can be grouped into the following seven categories of activity:
1. Valentin’s failure to act/investigate certain complaints/reports;
2. Valentin subjecting Serrano to internal investigations, placing him on leave, and/or subjecting him to a fitness for duty exam, in retaliation for plaintiffs’ SAPOA activities and/or for reporting/complaining of illegal/wrongful conduct on the part of Valentin and/or other high-ranking officers;
3. Valentin’s advocacy/encouragement for a change in SAPOA leadership, including by “question[ing] members’ support for Serrano when they seek assignments and promotions”;
4. Valentin “spying” on Serrano’s emails and placing a tracer on them;
5. Valentin’s denial of plaintiffs’ request to use the City’s email system to send out SAPOA communications, and termination of their ability to do the same;
6. Valentin’s requests to the OCDA’s office to open a criminal case against Serrano, and their ensuing communications regarding the same; and
7. Defendants’ CalPERS inquiry regarding Serrano’s “confidential” premium pay/pension payments.
As noted above, the moving party on an anti-SLAPP motion bears the initial burden to show the subject claims arise from protected activity within the meaning of the anti-SLAPP statute. To meet this burden, the defendant must make two related showings. First, he must show that the subject conduct falls within one of the four statutorily protected categories of activity described in Code of Civil Procedure section 425.16, subdivision (e)4. Next, he must show that the subject claims arise out of that protected conduct. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson); Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).)
Valentin has failed to show that the first five categories of conduct constitute protected activity. The first category of conduct consists of Valentin’s failures or omissions to act. The mere failure to act does not constitute speech/communicative conduct or petition activity within the meaning of the anti-SLAPP statute. (See Code Civ. Proc., § 425.16, subd. (e); PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1227 [attorneys defendants’ “non-communicative conduct, and their alleged failures to act” in the underlying litigation were “not statements or writings within the meaning of section 425.16, subdivision (e)”].)
The second category of conduct consists of Valentin’s decisions to subject Serrano to investigations and other adverse employment actions (placing him on leave, subjecting him to a fitness for duty exam) in retaliation for plaintiffs’ SAPOA activities and/or for reporting/complaining of illegal/wrongful conduct on the part of Valentin and/or other high-ranking officers. What gives rise to liability here is not that Valentin spoke the words necessary to implement these decisions, but that Valentin subjected the plaintiff to these burdens on account of a retaliatory consideration. (See Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772-775 (Laker); see also Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1066-1068 (Park).)
As for the third category, Valentin fails to show how his alleged conduct in advocating/encouraging a change in SAPOA leadership by asking SAPOA members whether they support Serrano when they seek assignments and/or promotions, constitutes protected activity. The alleged misconduct here is not the mere advocacy/encouragement of a change in union leadership. Rather, it is the manner in which Valentin, as the Chief of Police, attempted to accomplish this, by allegedly threatening/intimidating SAPOA members with questions concerning their support for Serrano when they seek work-related assignments and promotions, i.e., at a sensitive and critical juncture in their careers with the SAPD. (Compl. ¶ 18.) Valentin fails to explain how questioning members regarding their union affiliation/support when their careers/working conditions are on the line, as part of an attempt to “encourage” a change in union leadership, constitutes protected activity, particularly when the MMBA specifically prohibits such conduct. (See, e.g., Gov. Code, §§ 3502, 3506, 3506.5.).
As for the fourth and fifth categories, Valentin fails to demonstrate that his alleged conduct of “spying” on Serrano’s emails or denying plaintiffs the ability to send SAPOA communications through the City’s email system, somehow constitutes protected activity under the anti-SLAPP statute. (See Code Civ. Proc., § 425.16, subd. (e).) Contrary to Valentin’s contentions, the mere fact that Valentin, as the Chief of Police, may need to make such decisions and/or engage in such alleged conduct “to gather information and communicate as Chief of Police,” does not automatically convert everything he does into protected activity under section 425.16. (See Valentin SLAPP Motion at p. 17.) Rather, Valentin must show that this conduct falls within one of the categories of protected activity set forth in section 425.16(e), which he has entirely failed to do.
As for the sixth and seventh categories of conduct—Valentin’s requests to the OCDA that they open a criminal case against Serrano, and the CalPERS inquiry regarding the propriety of Serrano’s premium pay/pension payments—Valentin has shown that they constitute protected activity, and that the first, third, and fourth causes of action arise in part from these instances of conduct, for the same reasons discussed above with respect to the City’s motion.
Valentin has not, however, shown that the second cause of action for violation of POBRA arises from these last two categories of conduct. This claim is not based on Valentin’s requests to the OCDA that they open a criminal case against Serrano, or the CalPERS inquiry regarding Serrano’s pension payments. Rather, it is alleged against Valentin for placing adverse comments/documents in Serrano’s personnel file without affording Serrano the ability to review those comments/documents, which POBRA grants him (see Compl. ¶ 129; see also id. ¶¶ 120-122); and for ordering investigations against Serrano beyond the one year time limit imposed by POBRA; failing to provide notice of the investigations or the outcome of the investigations to Serrano as POBRA requires; and for failing to compensate Serrano for his time while being interrogated as POBRA provides (see id. ¶¶ 127, 130; see also id. ¶¶ 116, 119).
Valentin has also failed to show that these last two instances of conduct form the basis for liability under the Fifth Cause of Action for violation of Penal Code sections 832.5-832.8 and Evidence Code sections 1043-1046. The Fifth Cause of Action is not based on Valentin’s requests to the OCDA that they open a criminal case against Serrano, or the CalPERS inquiry regarding Serrano’s pension payments. Instead, it is based on defendants’ failure to investigate plaintiffs’ complaints regarding the unauthorized release of private peace officer personnel records, and certain misconduct on the part of police department employees/officials (see Compl. ¶¶ 175-182); and defendants’ release of Serrano’s confidential peace officer personnel files/information without first complying the requisite requirements of Evidence Code sections 1043-1046 (id. ¶¶ 183-184).
In sum, Valentin has met his moving burden on the anti-SLAPP motion only as to the first, third, and fourth causes of action to the extent that these claims are based on Valentin’s requests to the OCDA that they open a criminal case against Serrano, and the CalPERS inquiry regarding the propriety of Serrano’s premium pay/pension payments—i.e., the exact same claims and instances of alleged misconduct that the City has successfully moved to strike in their anti-SLAPP motion.
And, for the same reasons discussed above with respect to the City’s motion, plaintiffs have not met, and cannot meet, their shifted burden to show a probability of prevailing on these causes of action to the extent that they are based on these last two instances/categories of conduct. This is because, inter alia, this conduct is absolutely privileged under Civil Code section 47, subdivision (b).
As such, Valentin’s anti-SLAPP motion would not have been any more successful than the City’s motion, and ultimately, would not have added anything recovery-wise to his joinder to the City’s motion.
MOTION NO. 4 – MOTION FOR ATTORNEY FEES
MOVING PARTY (MP): Defendant David Valentin
RESPONDING PARTY (RP): Plaintiffs Santa Ana Police Officers Association and Gerry Serrano
POS: 9/19/22 by email; timely.
OPP: 10/13/22 by e-service; timely.
REPLY: No reply brief permitted. (9/21/22 Minute Order.) However, “Counsel may orally present a reply at the time of the hearing.” (Ibid.)
RELIEF SOUGHT:
Defendant David Valentin seeks attorney fees in the amount of $133,314 and costs in the amount of $10,179.90 against plaintiffs Santa Ana Police Officers Association and Gerry Serrano, jointly and severally.
ANALYSIS:
As discussed above, Valentin’s joinder to the City’s anti-SLAPP motion would have been successful, and his own separately filed anti-SLAPP motion would also have been successful to a moderate extent, if the complaint had remained at issue as to Valentin when they were scheduled to be heard.
A prevailing defendant on an anti-SLAPP motion is entitled to recover his attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c) [“a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs”]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum) [any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees”].)
Valentin is therefore entitled to recover attorney fees and costs incurred in moving to strike the claims on which he would have prevailed, but not fees and costs incurred in moving to strike the remaining claims (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82), unless of course the claims were “so intertwined that it would be impracticable, if not impossible to separate the attorney’s time into compensable and noncompensable units.” (Mann v. Quality Old Time Service Inc. (2006) 139 Cal.App.4th 328, 340.)
Further, the fees and costs recoverable under the anti-SLAPP statute include only those fees and costs incurred on the special motion to strike, and not the entire litigation. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383 (Lafayette).)
A reasonable fee award is determined by the usual lodestar method. (See Ketchum, supra, 24 Cal.4th at p. 1131.) “In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the ‘lodestar’ amount. [Citations.] The ‘lodestar’ is ‘the number of hours reasonably expended multiplied by the reasonable hourly rate.’ [Citation.] To determine the reasonable hourly rate, the court looks to the ‘hourly rate prevailing in the community for similar work.’ [Citation.] Using the lodestar as the basis for the attorney fee award ‘anchors the trial court’s analysis to an objective determination of the value of an attorney's services, ensuring that the amount awarded is not arbitrary. [Citation.]’ [Citation.]” (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-1394 (Bernardi).)
“Once the court has fixed the lodestar, it may increase or decrease that amount by applying a positive or negative “multiplier” to take into account a variety of other factors, including the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented.’ [Citation.] ‘The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services.’ [Citation.]” (In re Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.)
Here, Valentin seeks attorney fees in the amount of $133,314 and costs in the amount of $10,179.90. The fees and costs are substantiated by the declaration of his counsel, Christopher Lee, as well as his counsel’s itemized billing records and invoices. (See Lee Decl. ¶ 7, Ex. 6.)
The supporting declaration of Mr. Lee, and the itemized billing records and invoices attached thereto (which consist of approximately 64 pages of billing and invoice documents, see Lee Decl. at Ex. 6), list the hourly rates requested for the attorneys/paralegals at Mr. Lee’s firm as follows: Seymour B. Everett, partner, $265.00; Christopher D. Lee, partner, $265.00; attorney James Truxaw, $250.00; and for paralegals, $110.00. (See Lee Decl. ¶¶ 8-9.)
These rates are well within the reasonable rates for attorneys in Orange County, and thus, the Court finds all of these hourly rates reasonable.
The number of hours requested, however, is a different matter. A review of Mr. Lee’s declaration and the billing records/invoices attached thereto shows that Valentin is essentially seeking all of his attorney fees incurred in this case from December 2021 to date, as well as all of his costs incurred in this action, without regard to whether they were incurred on the anti-SLAPP motion or not.
Valentin is not entitled to all of these fees and costs. As noted above, Valentin is only entitled to those fees and costs incurred on the special motion to strike, and not the entire litigation (Lafayette, supra, 39 Cal.App.4th at p. 1383.) Further, he is entitled to only those attorney fees and costs incurred in moving to strike the claims on which he would have prevailed, and not the fees and costs incurred in moving to strike the remaining claims, unless those fees/costs are inextricably intertwined with the claims on which he would have prevailed. (See Jackson v. Yarbray, supra, 179 Cal.App.4th at p. 82; Mann v. Quality Old Time Service, Inc., supra, 139 Cal.App.4th at p. 340.)
The Court has reviewed the declaration of Mr. Lee and the billing/invoices, and listed those amounts requested (reflecting the attorney/paralegal time sought for the itemized time entries) that should be allowed—which is the time spent concerning the anti-SLAPP motion, the plaintiffs’ motion for SLAPP discovery, and this fee motion which has been brought pursuant to the anti-SLAPP statute. The Court has excluded excessive billing/time for work related to the anti-SLAPP motion where appropriate, and excluded the hours for work on unsuccessful portions of the anti-SLAPP motion where this is evident.
Based on this tally of amounts that should be allowed, the Court will grant a total of $25,087 in attorney fees—which reflects the reasonable attorney fees incurred on Valentin’s anti-SLAPP motion, including Valentin’s opposition to plaintiffs’ previously filed motion for SLAPP discovery, and with respect to this fee motion.
The Court will grant $609.25 in costs, which includes the costs incurred with respect to Valentin’s anti-SLAPP motion, including his opposition to plaintiffs’ motion for SLAPP discovery, and with respect to this fee motion as well.
In sum, the Court grants the motion in the amount of $25,087 in attorney fees, and $609.25 in costs.
RULINGS
I. City’s Anti-SLAPP Motion
Defendants City of Santa Ana (City), Kristin Ridge (Ridge), Sonia Carvalho (Carvalho), and Jason Motsick’s (Motsick) anti-SLAPP motion is MOOT to the extent it has been brought by Ridge, Carvalho, and Motsick, as these individual defendants have been dismissed from the action with prejudice as of 9/20/22. (See 9/20/22 Stip. & Order).
The anti-SLAPP motion remains at issue to the extent it has been brought by the City, on behalf of itself and the Santa Ana Police Department (SAPD), and is GRANTED only as to the following portions of plaintiffs Santa Ana Police Officers Association (SAPOA or the Association) and Gerry Serrano’s (Serrano) (collectively, plaintiffs) complaint, and otherwise DENIED:
· The First Cause of Action for violation of Meyers-Milias-Brown Act (MMBA, Gov. Code, § 3500 et seq.), to the extent this claim is based on:
(a) SAPD Chief of Police David Valentin’s (Valentin) and Caravalho’s requests to the Orange County District Attorney’s (DA) office to open a criminal case against Serrano, and communications with the DA regarding the same, as more specifically identified below as the instance of alleged misconduct No. 3; and
(b) The defendants’ CalPERS inquiry regarding Serrano’s “confidential” premium pay/pension payments, as more specifically identified below as the instance of alleged misconduct No. 4.
· The Third Cause of Action for “violation of constitutional right to freedom of speech,” to the extent this claim is based on the same conduct under (a) and (b) above.
· The Fourth Cause of Action for violation of Labor Code sections 1101-1102.5 to the extent this claim is based on the same conduct under (a) and (b) above.
Timeliness. The motion is timely. The motion was timely filed within 60 days of the U.S. District Court’s order remanding the action back to this court. (See Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 679; ROA No. 64 [2/18/22 order of remand]; see also Code Civ. Proc., § 425.16, subd. (f) [court’s discretion to consider untimely motion in any event].)
Public interest exception. The public interest exception set forth in Code of Civil Procedure section 425.17, subdivision (b), does not apply, because plaintiffs’ complaint seeks relief for plaintiffs greater or different from that sought on behalf of the general public. (See Code Civ. Proc., § 425.17, subd. (b); Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 312; accord, Cruz v. City of Culver City (2016) 2 Cal.App.5th 239, 248 [“section 425.17, subdivision (b) does not apply to a party seeking any personal relief”]; see also, e.g., Compl. ¶¶ 163, 166, 167 & at pp. 44-46 [prayer].)
Portions of complaint at issue, subject instances of alleged misconduct. The City’s anti-SLAPP motion is directed at only the First, Third, and Fourth causes of action for violation of MMBA, “violation of constitutional right to freedom of speech,” and violation of Labor Code sections 1101-1102.5, to the extent that these claims are based on certain instances of alleged misconduct. (See Motion P&As at pp. 7, 9-19.) The City identifies five instances of alleged misconduct, but it makes more sense to separate them into six instances instead. For ease of reference, these six specific instances of alleged misconduct are listed below as Nos. 1-6:
1. Valentin advocating for/encouraging a change of leadership in the SAPOA. (Compl. ¶ 18 [where it states that Valentin “has engaged in action to advocate for a change of leadership in the SAPOA,” by “encouraging candidates to run against Serrano for the position of Association President”]; City Motion P&As at p. 11:10-20.)
2. Valentin ordering his internal affairs commander and investigators to conduct an investigation of Serrano regarding the “campaign signs” incident. (Compl. ¶¶ 22-23, particularly ¶ 23 [when plaintiffs reported that a police commander had altered his police report regarding the theft of certain campaign signs to omit a councilmember’s involvement in the theft, “Valentin ordered his Internal Affairs commander and investigators to conduct an investigation of Serrano,” instead of investigating the unlawful actions of the police commander]; see City Motion P&As at p. 12:22-23.)
3. Valentin’s and Caravalho’s requests to the Orange County District Attorney’s office to open a criminal case against Serrano, and communications with the DA regarding the same. (Compl. ¶¶ 24 [“... Defendant Valentin, Defendant Carvalho and other private attorneys employed by her firm, directly and through Valentin’s supporters pressured the Orange County District Attorney’s office to open a criminal case against Serrano. ... With the help of Defendant Carvalho and her private law firm, he began a lengthy letter and meeting campaign in which he chastised the District Attorney’s decision and knowingly included false information in the communications with the District Attorney’s office.”], 25 [“As [a] part of [this] April[] 2020[] effort[] to wrongfully bring a criminal case against Serrano, Defendants used department resources, including the Internal Affairs Unit, to draft memoranda with adverse comments about Serrano. ...”]; see City Motion P&As at pp. 12:26-13:8.)
4. The “defendants” CalPERS inquiry regarding Serrano’s “confidential” premium pay/pension payments. (Compl. ¶ 30 [“In October 2020, the Defendants inquired of CalPERS as to the propriety of including a premium pay, called ‘Confidential’ received by Serrano while on paid release time to serve as the SAPOA President in its calculation of his pension. ...”]; see City Motion P&As at p. 14:7-14.)
5. Carvalho’s request to the California Fair Political Practices Commission (FPPC) seeking a finding that Serrano, as the SAPOA President, engaged in a conflict of interest by negotiating a side letter agreement related to the pension issue. (See Compl. ¶ 31; City Motion P&As at p. 14:15-23.)
6. Valentin ordering an investigation against Serrano based on alleged comments Serrano made in his capacity as the president of SAPOA about a former SAPOA president. (Compl. ¶¶ 58 [“On or about May 27, 2021, Defendant Valentin ordered an investigation of Serrano based on alleged comments Serrano made in his capacity as the current President of the SAPOA about a former SAPOA President in October, 2020. ...”], 60 [“...Defendant Valentin and possibly others, in order to further retaliate against Serrano and the SAPOA, initiated the investigation nine months later. ...”]; see City Motion P&As at pp. 16:21-17:4, 17:10-15.)
Only these six specific instances are at issue in the City’s anti-SLAPP motion, and the City’s motion only properly seeks to strike the three subject causes of action (first, third, and fourth) to the extent they are based on these six specific instances.
To the extent the City may be attempting to strike the subject causes of action in their entirety, they have failed to meet their initial burden to show that the numerous other factual bases alleged in support of these claims arise from protected activity. (See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884, 887 (Wilson) [it is defendant’s burden to show how any part of a claim arises from protected activity]; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1211 (Bonni) [“If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims”].)
Instance of alleged misconduct No. 5. The complaint attributes this instance of alleged misconduct solely to defendant Carvalho, “acting on her own personal vendetta and without City Council approval.” (Compl. ¶ 31.) Because Carvalho is no longer a party to this suit, and because the subject conduct is not alleged against the City, the motion is moot to the extent it challenges this portion of the complaint.
Instance of alleged misconduct No. 1. To meet its initial burden to show the subject claims arise from protected activity within the meaning of the anti-SLAPP statute, the defendant must make two related showings. First, it must show that the subject conduct falls within one of the four statutorily protected categories of activity described in Code of Civil Procedure section 425.16, subdivision (e) (section 425.16(e)). Next, it must show that the subject claims arise out of that protected conduct. (Wilson, supra, 7 Cal.5th at p. 887; Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).)
City has failed to meet its initial burden to show that the First, Third, and Fourth causes of action arise from protected activity to the extent they are based on the instance of alleged misconduct listed above as No. 1. To be clear, as the City has framed it, the conduct at issue listed under No. 1 consists solely of the mere advocacy for a change in SAPOA leadership and encouraging of other candidates to run against the present leadership, and does not include any of the other misconduct alleged in paragraph 18 of the complaint or elsewhere. (See City Motion P&As at p. 11:10-20 [quoting portions of paragraph 18 of the complaint in bold, and taking issue with only the language in bold].)
While the advocacy and encouragement for a change in union leadership constitutes protected activity within the meaning of the anti-SLAPP statute (see Code Civ. Proc., § 425.16, subd. (e)(4); see also Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673-674 [union election and speech regarding candidates/officers for labor organization/union are matters of public interest/a public issue]), City fails to show that the subject claims “arise” from this activity, i.e., that defendants’ mere advocacy and encouragement for a change in leadership forms the basis for liability under these claims. (See Park, supra, 2 Cal.5th at p. 1062 [a claim “arises from” protected activity when that activity underlies or forms the basis for the claim].) The subject claims are not based on defendants’ mere advocacy for or encouragement of a change in SAPOA leadership. Rather, they are based on the manner in which this was done—such as, for example, by questioning the Association’s members as to whether they support Serrano (the current president) or not, when the members sought special assignments and promotions. (Compl. ¶ 18.) Stated another way, it is how defendants advocated for/encouraged a change in leadership, and not the mere fact that they advocated/encouraged the change, that forms the basis upon which the claims are based. As such, the City has failed to show that the subject claims “arise from” the conduct listed above as No. 1.
Instance of alleged misconduct Nos. 2 & 6. City has also failed to meet its initial burden to show that the subject claims arise from protected activity to the extent they are based on the instances of alleged misconduct listed above as Nos. 2 and 6. (See Wilson, supra, 7 Cal.5th at p. 887 [burden].) The conduct under Nos. 2 and 3 consists of Valentin’s decisions to subject Serrano to internal investigations, in retaliation for plaintiffs’ SAPOA activities and/or for reporting illegal/wrongful conduct on the part of Valentin and/or other high-ranking officers. (See, e.g., Compl. ¶¶ 22-23, 58-60.) Valentin’s decision to open these investigations is separate and distinct from Valentin’s speech made to implement those decisions. “What gives rise to liability is not that the defendant spoke, but that the defendant ... subjected the plaintiff to a burden,” such as the burden of having to undergo a meritless investigation, “on account of a ... retaliatory consideration.” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772-773 (Laker); see Park, supra, 2 Cal.5th at pp. 1066-1068.) “ ‘Failing to distinguish between the challenged decisions and the speech that leads to them or thereafter expresses them “would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power.” ’ (Park, supra, 2 Cal.5th at p. 1067....)” (Laker, at p. 773; see also id. at pp. 773-777 [distinguishing Hansen v. Dept. of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537 and Gallanis–Politis v. Medina (2007) 152 Cal.App.4th 600, among others, and noting their limited utility after Park].)
Instance of alleged misconduct Nos. 3 & 4. City has met its burden to demonstrate the First, Third, and Fourth causes of action arise from protected activity to the extent they are based on the instances of alleged misconduct listed above as Nos. 3 and 4. These instances of alleged misconduct consist of statements made in connection with a potential criminal/other official investigation to an executive body charged with the decision/authority to conduct the investigation and review. Such conduct falls within the purview of the anti-SLAPP statute. (See Code Civ. Proc., § 425.16, subd. (e)(2); see also Bonni, supra, 11 Cal.5th at pp. 1017-1018; Lee v. Fick (2005) 135 Cal.App.4th 89, 96 [communications to an official agency intended to induce the agency to initiate action are part of an official proceeding].) The subject claims allege the defendants violated plaintiffs’ rights under the MMBA (first cause of action), the Labor Code sections 1101-1102.5 (fourth cause of action), and/or the Constitution (right to free speech, third cause of action) by engaging in this conduct, causing plaintiffs harm. (See, e.g., Compl. ¶¶ 96, 103-104, 106, 144, 148, 156, 161-163.)
No probability of prevailing. Because City has met its burden to show that the First, Third, and Fourth causes of action arise from protected activity to the extent they are based on instances of conduct Nos. 3 and 4, plaintiffs must demonstrate these claims have at least some “minimal” merit. (See Bonni, supra, 11 Cal.5th at p. 1019.)
Plaintiffs have failed to make this showing. First, nothing shows plaintiffs exhausted their administrative remedies before bringing their First cause of action for violation of the MMBA, or that they were excused from doing so. The Public Employment Relations Board (PERB) has exclusive initial jurisdiction over claims for violations of the MMBA. The court therefore lacks jurisdiction over this claim. (See San Diego Municipal Employees Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1456, original italics; see also Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019) 42 Cal.App.5th 918, 929 [union’s filing of action in its own name does not exempt it from the exhaustion of administrative remedies requirement, absent an exception].)
Next, plaintiffs have also failed to show that their Third cause of action for “violation of constitutional right to freedom of speech” is viable to the extent it is based on these instances of misconduct. The freedom of speech provisions of the California Constitution do not necessarily give rise to a private right of action. Whether the cause of action exists depends on a consideration of certain factors set forth in Katzberg v. Regents of University of California (2002) 29 Cal. App. 4th 300, 324-329 (Katzberg), and whether those factors weigh in favor of recognizing the claim as alleged. (See McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1215 (McAllister); see also Degrassi v. Cook (2002) 29 Cal.4th 333, 342 (Degrassi).)
Plaintiffs fail to address whether their Third cause of action is or should be viable; and indeed, application of the Katzberg factors militate against recognition of the claim based on the subject instances of misconduct. As alleged in the complaint, theTthird cause of action for “violation of constitutional right to freedom of speech” is vague and uncertain, but generally appears to claim that defendants have attempted to silence/suppress plaintiffs in violation of their right to free speech/petition/assemble by engaging in the subject retaliatory/intimidating instances of alleged misconduct. (See Compl. ¶¶ 144-148.) But the MMBA and Labor Code section 1102.5 already afford plaintiffs a remedy for this conduct. (See Gov. Code, § 3500 et seq., in particular, §§ 3502, 3506, 3506.5; see also Lab. Code, § 1102.5.) Allowing a separate constitutional claim for relief based on conduct that the MMBA and Labor Code section 1102.5 already covers would allow a plaintiff to bypass or circumvent the other requirements/restrictions of these statutes, and produce adverse policy consequences as a result. This precludes recognition of a claim for a violation of the right to free speech based on such conduct. (See Degrassi, supra, 29 Cal.4th at pp. 342-343; see also McAllister, supra, 216 Cal.App.4th at pp. 1215-1217.)
As for the fourth cause of action for violation of Labor Code section 1101-1102.5, it fails to the extent it is based on sections 1101 and 1102, because these sections do not apply to public employees or public employers. (See California Correctional Peace Officers' Assn. v. State of California (2010) 188 Cal.App.4th 646, 652-653; accord, Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2021) 60 Cal.App.5th 327, 338-339; see also Eldridge v. Sierra View Local Hospital Dist. (1990) 224 Cal.App.3d 311, 317, fn. 2; Gov. Code, §§ 3201, 3203, 3207.)
Labor Code section 1102.5, California’s whistleblower statute, does apply to public employees. (See Lab. Code, § 1106.) However, to the extent the claim is based on instances of conduct Nos. 3 and 4, it fails because such conduct is absolutely privileged under Civil Code section 47, subdivision (b), and thus cannot form the basis for liability. (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [letter to the Attorney General requesting and soliciting investigation is absolutely privileged under Civ. Code, § 47, subd. (b), irrespective of malice]; see also Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1389-1391 (Braun) [statements made in connection with a potential government investigation to official executive bodies are absolutely privileged, because a communication to an official administrative agency, which communication is designed to prompt action by that agency, is as much a part of the “official proceeding” as a communication made after the proceedings have commenced].)
Attorney fees. City’s request for attorney fees is denied without prejudice. No amount of fees has been identified or substantiated. (See Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 777 [alternative procedures by which a party may seek attorney fees on a special motion to strike]; Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 461 [same].)
Request for judicial notice. City’s request for judicial notice (ROA No. 277) is GRANTED. (See Evid. Code § 452, subd. (c); Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750 [court may take judicial notice of official agency acts/decisions]; see also City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1288 [PERB decisions are persuasive authority on legal matters within its expertise].)
Objections. Plaintiffs’ objections to City’s evidence (ROA No. 261) are sustained as to objection Nos. 5, 11, and 16; sustained as to objection No. 9 with respect to exhibits I and J only; and otherwise overruled.
City’s objections to plaintiffs’ evidence (ROA No. 279) are all overruled.
II. Valentin’s Anti-SLAPP Motion & Joinder to City’s Anti-SLAPP Motion
Defendant David Valentin’s anti-SLAPP motion and his joinder to the City defendants’ anti-SLAPP motion are technically MOOT, as Valentin was dismissed from this action with prejudice on 8/22/22. (See 8/22/22 Minute Order; 8/26/22 Order of Dismissal.)
That having been said, an analysis on the merits of his request for joinder and separately filed anti-SLAPP motion remains necessary, however, as Valentin has filed a motion for attorney fees pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16, subdivision (c). (See Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 821; see also White v. Liberman (2002) 103 Cal.App.4th 210, 220.)
Upon review, the court finds that if Valentin’s request for joinder to the City’s anti-SLAPP motion had remained at issue, Valentin’s joinder would have been granted. Valentin’s joinder to City’s anti-SLAPP motion would have been successful, and that Valentin would therefore have been equally as successful as the City on that motion as determined above—i.e., that the City’s anti-SLAPP motion, as joined by Valentin, would have been granted as to the First, Third, and Fourth causes of action to the extent that those claims rely on the instances of alleged misconduct identified above as Nos. 3 and 4.
As for Valentin’s own, separately filed anti-SLAPP motion, that motion would have also been successful, but only to the same extent as Valentin’s joinder to the City’s motion.
Valentin’s anti-SLAPP motion challenges all of the claims alleged against him in the complaint, i.e., the First through Fifth causes of action for violation of the MMBA, violation of POBRA, “violation of constitutional right to freedom of speech,” violation of Labor Code section 1101-1102.5, and violation of various provisions of the Penal Code and Evidence Code. Each claim is challenged to the extent it is based on any and all conduct alleged against Valentin, but the only alleged instances of protected activity that Valentin actually identifies and raises in his motion consists of the following:
· Valentin’s alleged “ ‘fail[ure] to initiate an investigation’ into police employees for allegedly spreading nondescript rumors about Plaintiffs (Complaint at ¶¶ 19-20).” (Valentin SLAPP Motion at p. 16.)
· Valentin “ordering an investigation of Serrano in relation to his involvement in an investigation into theft of campaign signs (Complaint at ¶¶ 22-23).” (Valentin SLAPP Motion at p. 16.)
· Valentin “requesting that the Orange County DA open a criminal investigation into Serrano (Complaint at ¶¶ 24-25).” (Valentin SLAPP Motion at pp. 16, 18-19.)
· “[T]he manner in which [Valentin] conducted an investigation into an alleged incident involving off-duty police officers, and initiating said investigation on a later date than Plaintiffs wanted (Complaint at ¶¶ 26-29).” (Valentin SLAPP Motion at p. 16.) The portions of the complaint that Valentin cites to in support of this vaguely described instance of alleged misconduct in his anti-SLAPP motion (i.e., Compl. ¶¶ 26-29), show that the subject conduct here consists of Valentin’s failure to initiate an investigation of the subject incident sooner than he did (the incident occurred in August 2020, Valentin opened investigations against two of the three officers involved in June 2021), and his failure to investigate certain officers at all. (See id. ¶¶ 28-29.)
· “[T]he manner in which [Valentin] conducted an investigation into alleged discrimination against female police officers (Complaint at ¶¶ 32-37).” (Valentin SLAPP Motion at p. 16.) The portions of the complaint that Valentin cites to in support of this vaguely described instance of alleged misconduct in his anti-SLAPP motion (i.e., Compl. ¶¶ 32-37), show that the subject conduct here consists of Valentin’s lies to Ridge and Motsick “claiming that he had initiated an investigation of the discrimination” and harassment against female employees reported by plaintiffs, “when, in fact, he [had] initiated an investigation of the [complaining] female officers [instead] in order to silence them”; and Valentin’s/City’s failure to hire an investigator to look into these issues of harassment and discrimination until five months after the reports were made. (Id. ¶¶ 32-33, 34, 35.)
· Valentin’s failure to “conduct[ ] an investigation of himself when Plaintiffs demanded such investigation (Complaint at ¶¶ 51-53).” (Valentin SLAPP Motion at p. 16.)
· Valentin “ordering an investigation of Serrano (Complaint ¶¶ 58-60).” (Valentin SLAPP Motion at pp. 16-17.)
· Defendants’ inquiry to “CalPERS as to the propriety of including a premium pay[] in Plaintiffs’ pension. (Complaint ¶ 30.)” (Valentin SLAPP Motion at pp. 17, 19.)
· Valentin allegedly “spying” on “Serrano and members of the Santa Ana City Council by ‘redirecting copies of all e-mail communications sent by Serrano to City Councilmember Solorio ... to his office’ and ... ‘put[ting] a tracer’ on Serrano’s emails. (Complaint ¶ 16.)” (Valentin SLAPP Motion at p. 17.)
· Valentin’s decision to place Serrano on administrative leave and ordering him to submit to a fitness for duty exam. (Valentin SLAPP Motion at p. 17, citing Compl. ¶¶ 79-90.)
· Valentin “advocating for a change in SAPOA leadership and encouraging candidates to run against Serrano. (Complaint ¶ 18.)” (Valentin SLAPP Motion at p. 18.) Specifically, Valentin argues: “Plaintiffs assert that Chief Valentin would question members’ support for Serrano when they seek assignments and promotions, but Plaintiffs have failed to identify any specific person actually affected by such conduct. Plaintiffs have also failed to allege that Chief Valentin took any adverse action against such applicants. Beyond conclusory allegations, all that remains are assertions that Chief Valentin engaged in protected conduct of expressing opinions about Serrano and SAPOA.” (Ibid.)
· Valentin’s censorship of membership communications and denial/termination of the SAPOA’s ability to send membership communications via the City’s email system. (Valentin SLAPP Motion at p. 18, citing Compl. ¶¶ 17, 47.)
The foregoing instances of alleged misconduct can be grouped into the following seven categories of activity:
1. Valentin’s failure to act/investigate certain complaints/reports;
2. Valentin subjecting Serrano to internal investigations, placing him on leave, and/or subjecting him to a fitness for duty exam, in retaliation for plaintiffs’ SAPOA activities and/or for reporting/complaining of illegal/wrongful conduct on the part of Valentin and/or other high-ranking officers;
3. Valentin’s advocacy/encouragement for a change in SAPOA leadership, including by “question[ing] members’ support for Serrano when they seek assignments and promotions”;
4. Valentin “spying” on Serrano’s emails and placing a tracer on them;
5. Valentin’s denial of plaintiffs’ request to use the City’s email system to send out SAPOA communications, and termination of their ability to do the same;
6. Valentin’s requests to the OCDA’s office to open a criminal case against Serrano, and their ensuing communications regarding the same; and
7. Defendants’ CalPERS inquiry regarding Serrano’s “confidential” premium pay/pension payments.
Category Nos. 1-5. Valentin has failed to meet his burden to show each of the first five causes of action in the complaint arise from protected activity to the extent that these claims are based on the categories of conduct listed above as Nos. 1-5. (See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 [burden].) With respect to the first category, the mere failure to act does not constitute speech/communicative conduct or petition activity within the meaning of the anti-SLAPP statute. (See Code Civ. Proc., § 425.16, subd. (e); PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1227.)
The second category of conduct consists of Valentin’s decisions to subject Serrano to investigations and other adverse employment actions (placing him on leave, subjecting him to a fitness for duty exam) in retaliation for plaintiffs’ SAPOA activities and/or for reporting/complaining of illegal/wrongful conduct on the part of Valentin and/or other high-ranking officers, which does not constitute protected activity for the same reasons discussed above on the City’s anti-SLAPP motion. (See Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772-777; see also Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1066-1068.)
As for the third category, Valentin fails to show how his alleged conduct in advocating/encouraging for a change in SAPOA leadership by questioning SAPOA members as to their support for Serrano when they seek assignments and/or promotions, constitutes protected activity. The alleged misconduct here is not the mere advocacy/encouragement of a change in union leadership. Rather, it is the manner in which Valentin, as the Chief of Police, attempted to accomplish this, by threatening/intimidating SAPOA members with questions concerning their support for Serrano when they seek work-related assignments and promotions, i.e., at a sensitive and critical juncture in their careers with the SAPD. (Compl. ¶ 18.) Valentin fails to explain how questioning members regarding their union affiliation/support when their careers/working conditions are on the line, as part of an attempt to “encourage” a change in union leadership, constitutes protected activity, particularly when the MMBA specifically prohibits such conduct. (See Wilson, supra, 7 Cal.5th at p. 887 [it is defendant’s burden to show how any part of a claim arises from protected activity]; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1211 [“If a cause of action contains multiple claims and a moving party fails to identify how the speech or conduct underlying some of those claims is protected activity, it will not carry its first-step burden as to those claims”]; see also Gov. Code, §§ 3502, 3506, 3506.5.)
As for the fourth and fifth categories, Valentin fails to demonstrate how “spying” on Serrano’s emails or denying plaintiffs the ability to send SAPOA communications through the City’s email system, constitutes protected activity under the anti-SLAPP statute. Contrary to Valentin’s contentions, the mere fact that Valentin, as the Chief of Police, may need to make such decisions and/or engage in such alleged conduct “to gather information and communicate as Chief of Police,” does not automatically convert everything he does into protected activity under section 425.16. (See Valentin SLAPP Motion at p. 17.)
Category Nos. 6 and 7. As for the sixth and seventh categories of conduct above—Valentin’s requests to the OCDA that they open a criminal case against Serrano, and the CalPERS inquiry regarding the propriety of Serrano’s premium pay/pension payments—Valentin has shown that they constitute protected activity, and that the First, Third, and Fourth causes of action arise in part from these instances of conduct, for the same reasons discussed above with respect to the City’s motion.
Valentin has not, however, shown that the Second cause of action for violation of POBRA arises from these last two categories of conduct. This claim is not based on Valentin’s requests to the OCDA that they open a criminal case against Serrano, or the CalPERS inquiry regarding Serrano’s pension payments. Rather, it is alleged against Valentin for placing adverse comments/documents in Serrano’s personnel file without affording Serrano the ability to review those comments/documents, which POBRA grants him the right to review (see Compl. ¶ 129; see also id. ¶¶ 120-122); and for ordering investigations against Serrano beyond the one year time limit imposed by POBRA, failing to provide notice of the investigations or the outcome of the investigations to Serrano as POBRA requires, and for failing to compensate Serrano for his time while being interrogated as POBRA provides (see id. ¶¶ 127, 130; see also id. ¶¶ 116, 119).
Valentin has also failed to show that these last two instances of conduct form the basis for liability under the Fifth cause of action for violation of Penal Code sections 832.5-832.8 and Evidence Code sections 1043-1046. The Fifth cause of action is not based on Valentin’s requests to the OCDA that they open a criminal case against Serrano, or the CalPERS inquiry regarding Serrano’s pension payments. Instead, it is based on defendants’ failure to investigate plaintiffs’ complaints regarding the unauthorized release of private peace officer personnel records, and certain misconduct on the part of police department employees/officials (see Compl. ¶¶ 175-182); and defendants’ release of Serrano’s confidential peace officer personnel files/information without first complying the requisite requirements of Evidence Code sections 1043-1046 (id. ¶¶ 183-184).
In sum, Valentin has met his moving burden on his separately filed anti-SLAPP motion only as to the First, Third, and Fourth causes of action to the extent that these claims are based on Valentin’s requests to the OCDA that they open a criminal case against Serrano, and the CalPERS inquiry regarding the propriety of Serrano’s premium pay/pension payments. And, for the same reasons discussed above with respect to the City’s motion, plaintiffs have not met, and cannot meet, their shifted burden to show a probability of prevailing on these causes of action to the extent that they are based on these last two instances/categories of conduct. This is because, inter alia, this conduct is absolutely privileged under Civil Code section 47, subdivision (b).
III. Valentin’s Motion for Attorney Fees
Defendant David Valentin’s motion for attorney fees is GRANTED in the amount of $25,087 in attorney fees, and $609.25 in costs.
As discussed above, Valentin’s joinder to the City’s anti-SLAPP motion would have been successful, and his own separately filed anti-SLAPP motion would also have been successful to a moderate extent, if the complaint had remained at issue as to Valentin when they were scheduled to be heard.
Valentin is therefore entitled to recover his reasonable attorney fees and costs incurred in moving to strike the claims on which he would have prevailed, but not those fees and costs incurred in moving to strike the remaining claims (see Code Civ. Proc., § 425.16, subd. (c); Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82), unless of course the claims were “so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.)
Further, the fees and costs recoverable under the anti-SLAPP statute include only those fees and costs incurred on the special motion to strike, and not the entire litigation. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)
The court has reviewed the breakdown of Valentin’s request for fees and costs as substantiated by the declaration of counsel, Christopher D. Lee, and the itemized billing records and invoices attached thereto. (See Lee Decl. ¶¶ 7-9, Ex. 6.)
The court finds all of the hourly rates to be well within the reasonable range. (See Lee Decl. ¶¶ 8-9.)
As for the time requested, however, Valentin is essentially seeking all of his attorney fees incurred in this case from December 2021 to date, as well as all of his costs incurred in this action, without regard to whether they were incurred on the anti-SLAPP motion or not. (Lee Decl. ¶¶ 7-9, Ex. 6.)
Fortunately, Mr. Lee’s declaration and the billing records are sufficiently detailed for the court to apportion the recoverable fees and costs from the remainder.
As such, the court has gone through Mr. Lee’s declaration and the itemized billing records and invoices, and tallied the amounts requested therein (which reflect the attorney/paralegal time sought for the itemized time entries at the approved rates) that reflect counsel’s reasonable hours and costs incurred with respect to/concerning Valentin’s anti-SLAPP motions, the plaintiffs’ prior unsuccessful motion for SLAPP discovery, and this fee motion. Some of the time requested pertaining to these matters was excluded where appropriate, i.e., when it was excessive and/or unreasonably repetitive, and in a few instances where the itemized entry was for work done on unsuccessful portions of the anti-SLAPP motion. Based on this tally, the court finds Valentin is entitled to reasonable attorney fees in the total amount of $25,087, plus costs in the amount of $609.25, against the plaintiffs, jointly and severally.
This award includes 2 hours at Mr. Lee’s hourly rate to prepare for and appear at the hearing on this matter, as well as a $60 motion filing fee with respect to this motion.
City shall give notice of all of the above.