Judge: Stephen P. Pfahler, Case: 24STCV06168, Date: 2024-08-22 Tentative Ruling

Case Number: 24STCV06168    Hearing Date: August 22, 2024    Dept: 68

Dept. 68

Date: 8-22-24

Case #24STCV00168

Trial Date: Not Set

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendants, City of Redondo Beach, et al.

RESPONDING PARTY: Plaintiff, Kelly Nicole Deckers

RELIEF REQUESTED

Special Motion to Strike the Complaint

SUMMARY OF ACTION

Plaintiff Kelly Deckers was formerly employed by Redondo Beach Police Department as an Emergency Dispatcher. Plaintiff alleges a cancer diagnosis required subsequent accommodation, which was not provided. The hostile work environment “forced” resignation from the position in November 2023.

On March 12, 2024, Plaintiff filed a complaint for 1. Discrimination Based On Physical Disability (Govt. Code §12940(A)); 2. Hostile Work Environment (Govt. Code §12940 Et Seq.); 3. Retaliation In Violation Of Govt. Code §12940 Et Seq.; 4. Failure To Prevent Discrimination (Govt. Code §12940(K)); 5. Harassment (Govt. Code §12940(J); 6. Failure To Accommodate Physical Disability In Violation Of Govt. Code §12940(M); 7. Failure To Engage In A Good Faith Interactive Process In Violation Of Govt. Code §12940(N); And 8. Wrongful Constructive Termination In Violation Of Public Policy In Violation Of Govt. Code §12940 et seq.; 9. Failure To Pay Premium Double Time Wages Due (Cal. Labor Code §§ 510, 558, 1194, 1198); 10. Failure To Provide Timely Off Duty Meal Periods (Cal. Labor Code §§ 226.7, 512); 11. Failure To Provide Rest Periods (Cal. Labor Code § 226.7); 12. Failure To Maintain Records And Provide Accurate Itemized Wage Statements (Cal. Labor Code §226); 13. Failure To Pay Wages Due Upon Termination (Cal. Labor Code §§201-203); 14. Failure To Reimburse Business Expenses (Cal. Labor Code § 2802); 15. Failure To Provide Day Of Rest (Cal. Labor Code §§ 551, 552); 16. Failure To Allow Inspection Of Employment Records (Cal. Labor Code §1198.5); 17. Defamation; and 18. Unfair Competition (Cal. Bus. & Prof. Code §§17200 Et Seq. On May 9, 2024, Plaintiff dismissed the seventeenth cause of action for Defamation.

On June 10, 2024, Plaintiff filed a first amended complaint for 1. Discrimination Based On Physical Disability (Govt. Code §12940(A)); 2. Hostile Work Environment (Govt. Code §12940 Et Seq.); 3. Retaliation In Violation Of Govt. Code §12940 Et Seq.; 4. Failure To Prevent Discrimination (Govt. Code §12940(K)); 5. Harassment (Govt. Code §12940(J); 6. Failure To Accommodate Physical Disability In Violation Of Govt. Code §12940(M); 7. Failure To Engage In A Good Faith Interactive Process In Violation Of Govt. Code §12940(N); and 8. Defamation.

RULING: Denied.

Defendants City of Redondo Beach and Joe Hoffman move to strike the eighth cause of action for Defamation the first amended complaint of Kelly Deckers on grounds that the subject claim arises from privileged and protected conduct of public concern, and lack of probability of prevailing on the merits. Plaintiff in opposition challenges the motion as both untimely, and not a matter of privilege or public interest. Defendants in reply contend the motion is timely filed and reiterate both the public policy and lack of probability of prevailing on the merits arguments.

Timing

A special motion to strike must be filed within 60 days from service of the complaint (with an additional five days under Code of Civil Procedure section 1013(a) for service by mail), or at any later time that the court deems proper. (Code Civ. Proc., § 425.16, subd. (f).) The complaint was filed March 12, 2024. Plaintiff dismissed the defamation cause of action on May 9, 2024. Plaintiff filed the first amended complaint on June 10, 2024, adding the defamation cause of action back into the action.  

A new or renewed claim in an amended complaint may be challenged, with the 60-day period running from service of the amended complaint. (Lam v. Ngo (2001) 91 Cal.App.4th 832.) Defendant was deprived of the opportunity to challenge the claim because of the dismissal. The renewal of the cause of action subjects the action to challenge. The motion is therefore timely.

Anti-SLAPP Statute Standard

Code of Civil Procedure section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc. § 425.16, subd. (b).) Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16.)

The anti-SLAPP applies where the allegations of the defendant’s protected activity are the gravamen or principal thrust of the cause of action. (Peregrine Funding, Inc. v. Sheppard Mulin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [“‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’”].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188 [“We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute”].) .) “[W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 889.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Courts must “draw a careful distinction between a cause of action based squarely on a privileged communication … and one based upon an underlying course of conduct evidenced by the communication.” (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)

In determining the application of the special motion to strike statute, the court focuses “not on the label of the cause of action,” but on the underlying “activities” alleged in the challenged pleading. (1100 Park Lane Assocs. v. Feldman (2008) 160 Cal.App.4th 1467, 1484.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Fox Searchlight Pictures, Inc v. Paladino (2001) 89 Cal.App.4th 294, 308.) “The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten, supra, 29 Cal.4th 82, 92.)

“The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint.” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)

“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been ‘triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) Courts must “draw a careful distinction between a cause of action based squarely on a privileged communication … and one based upon an underlying course of conduct evidenced by the communication.” (White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888.)

Defamation

Plaintiff alleges the defamation claim separate and apart from the employment action. The gravamen of the claim alleges unfavorable statements made to prospective employers precludes Plaintiff from obtaining a new job. The operative complaint alleges:

·         93. Beginning on or about April 1, 2023, Plaintiff began applying at various police departments for jobs to work as a police officer. Plaintiff initially applied to the Los Angeles, Santa Monica, Ventura, Beverly Hills, Costa Mesa, Culver City and Plano, Texas police departments. Plaintiff identified RBPD as a former employer on her resume. Her interviews were going well, but all of the prospective employers told her they are unable to hire her because they received negative reviews about her from the RBPD. Plaintiff was informed that her supervisors and co-workers were concerned about her meeting the standards to work as a police officer. The reviews were false. The CITY, COP and RBPD were telling other police departments that Plaintiff was in litigation with the CITY, COP and RBPD, even though that was not accurate.

·         94. Additionally, RBPD withheld relevant information from Plaintiff concerning her personnel file, despite her repeated requests therefor. When Plaintiff asked Jason for her personnel file, he told her he did not have any documents. However, when Plaintiff worked at RBPD she had monthly evaluations performed by her supervisors. Plaintiff was also told by HR that they were not in possession of those evaluations. Plaintiff needed this information so that she could provide it to the background investigators at the positions she was applying for. Due to RBPD’s retaliation by means of withholding such information, Plaintiff was viewed as attempting to hide important information concerning her background.

·         95. Further, Plaintiff was advised of violations that she committed while working as a dispatcher at the RBPD, that were never brought to her attention while she worked for CITY and RBPD. While working for CITY and RBPD Plaintiff was never formally written up or disciplined for anything. Moreover, the purported violations related to her dispatcher position were irrelevant to her applications for positions as a police officer.

·         96. Plaintiff is informed and believes and thereon alleges that CITY, COP and RBPD have maliciously told all prospective employers who called for a reference false information and have “blackballed” Plaintiff to prevent her from gaining employment with another employer in retaliation for her resignation. CITY, COP and RBPD have defamed Plaintiff in retaliation.

·         97. As a result of the retaliation by the CITY, COP and RBPD, Plaintiff has not been able to obtain a position anywhere. As a result, Plaintiff has been financially ruined. Moreover, since Plaintiff was forced to resign due to the hostile work environment, she has been unable to obtain unemployment benefits.

The subject matter concerns both privilege considerations in former employer references, and according to Defendants, public policy concerns regarding law enforcement personnel standards of conduct. Plaintiff challenges both the public policy application, and application of any privilege. The court begins with the privilege consideration.

“In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment. This subdivision authorizes a current or former employer, or the employer's agent, to answer, without malice, whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based upon the employer's determination that the former employee engaged in sexual harassment. This subdivision does not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.”

(Civ. Code, § 47, subd. (c).)

The statutory language facially applies within the context of the operative cause of action. Plaintiff in opposition challenges on grounds of the “malice” language, and seeks to distinguish the privilege on geographical limitations. More specifically, the allegedly negative reference to the Plano Texas police department somehow rendered the statute void.

The court finds the geographic argument unsupported. The complaint was filed in California, the location of Defendant. California law applies to all conduct originating from California barring actual legally supported argument establishing otherwise. “[B]by its terms the new privilege pertains only to communications made “upon request of” the prospective employer.” (Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1081.)

The first amended complaint however also alleges malicious, retaliatory conduct. Plaintiff alleges in relevant part that Defendants “maliciously told all prospective employers who called for a reference false information and have “blackballed” Plaintiff to prevent her from gaining employment with another employer in retaliation for her resignation.” [First Amend. Comp., ¶ 96.] “To defeat this conditional privilege, a plaintiff must specifically allege malice. (Citation.) A general allegation of malice will not suffice; plaintiff must allege detailed facts showing defendant's ill will towards him. (Citation.)” (Robomatic, Inc., v. Vetco Offshore (1990) 225 Cal.App.3d 270, 276.)

Neither party addresses the malice standard as part of the special motion to strike. Defendants present no argument regarding the malice exception, including an insufficient showing of said exception. The court declines to address unmade arguments.

Defendants instead focus the scope of the inquiry into the public policy standard for police officers, as an apparent form of superseding the malice language in the statute, and therefore paragraph 96 of the first amended complaint. Defendant cites to a case addressing the prior version of the statute, whereby the court specifically considered information provided in assessing potential law enforcement personnel. The court cited to Government Code section 1031, subdivision (d), which stated then as now, that “Each class of public officers or employees declared by law to be peace officers shall meet all of the following minimum standards: (d) Be of good moral character, as determined by a thorough background investigation.” (Gov. Code, § 1031.) In reviewing the section, the court found “The Legislature has wisely required a thorough background investigation of the character of those who wish to be peace officers. It is essential that former employers of those considered for peace officer positions feel free to discuss in detail the characteristics of their former employees, now being considered for the extremely demanding tasks undertaken by the peace officers of this state.” (O'Shea v. General Telephone Co. (1987) 193 Cal.App.3d 1040, 1048 (“O’Shea”).)

The status of Plaintiff as within the purview of Government Code section 1031 (e.g. a member of the law enforcement employment pool) remains undisputed. Plaintiff however seeks to distinguish O’Shea court based on the court review of the statute before the addition of the current malice standard. The court agrees with Plaintiff’s argument in that O’Shea clearly found an absolute privilege applicable at the time, which now no longer prevails under the malice excepted governing standard of the statute. (Id. at pp. 1048-1049.)

The lack of an absolute privilege standard brings consideration back to the unaddressed malice exception. The failure to establish any lack of malice, or even challenge the insufficient showing of malice as part of the requirement for establishing the first prong of the special motion to strike, leads to a finding of a failure to shift the burden establishing application of the special motion to strike statute. The court denies the motion on this basis.

Even if Defendants somehow shifted the burden however, the motion, again, relies on an unsupported position of privileged conduct. The court finds no basis of absolute privilege or evidence of lack of malicious, retaliatory conduct. Plaintiff additionally presents a declaration in support regarding specific factual reasons for concluding Defendants intentionally provided negative references. Plaintiff specifically contends Defendants provided false information. At a minimum, Plaintiff also adds in concerns regarding the reference check requests including new concerns actually never presented or addressed at the time of employment. Plaintiff was never provided an opportunity to respond, and denies even an awareness of concerns subsequently provided to prospective employers. [Declaration of Kelly Deckers.] The court finds the unchallenged declaration factual and supportive of a showing of malicious intent for purposes of thwarting the subject motion. (Code Civ. Proc., § 425.16, subd. (b); Taus v. Loftus, supra, 40 Cal.4^th at p. 729; Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)

The motion is DENIED in its entirety.

Motion to Quash scheduled for October 30, 2024, which multiple demurrers and a motion to strike between December 17, 2024, and January 27, 2025.

Defendants to provide notice.