In Whitehall v. County of San Bernardino, published November 15, 2017, the Fourth District Court of Appeal, Division 2, affirmed a trial court order denying the defendant county's Anti-SLAPP special motion to strike the plaintiff social worker's whistleblower suit under Labor Code section 1102.5. The deputy director of Children and Family Services instructed the plaintiff to withhold photographs of a home being investigated for a baby's death, from which four other children were removed, and to provide other photographs that had been altered. The plaintiff gave the assigned deputy county counsel a disc with all of the photographs obtained from the police. She was concerned that the dependency court was not being given an accurate picture of the home. Soon after, plaintiff was removed from the case and was instructed not to discuss the case with the new social worker on the case. The plaintiff then learned the original social worker on the matter had been fired. A new trial, assigned to a different judge, was ordered on the ground that the previous social worker had lied, and the evidence previously provided to the court was marked confidential with instructions that the new judge not view it. The plaintiff decided to file a motion with the court stating that a fraud had been perpetrated upon it. She consulted with an attorney, who prepared the filing. She and two other social workers filed the motion. Six days later, the plaintiff was placed on administrative leave. The county stated she was put on leave while it investigated her for potential improper release of confidential information. Two months later, the county decided to terminate the social worker. She resigned first. She then filed the whistleblower suit.
The appellate court held that the trial court properly denied the county's anti-SLAPP motion. The appellate court disagreed with the trial court's ruling that the suit arose out of protected activity by the county in investigating the potential release of confidential information. The plaintiff's cause of action did not arise from the investigation, but from the alleged retaliatory adverse employment action, which is not protected activity. The appellate court agreed with the trial court's ruling that the plaintiff showed a sufficient chance of prevailing; the timing of the administrative leave, coming six days after the plaintiff's report, shows at least minimal merit to the retaliation claim. Further, the plaintiff's disclosure of confidential information to the court cannot be deemed public disclosure of confidential information where county CFS is deemed an arm of the court, and dependency cases are maintained confidential by the court. The county was not immune from liability under Government Code sections 820.2 or 815.2/821.6, because the action was brought against the county, not an employee, and as a matter of public policy actions against a public entity for claims of discharge from or termination of employment based on whistleblower claims are not barred by governmental immunity. The court held that privilege did not apply to either presentation of false or manipulated evidence, or retaliation against an employee for disclosing a possible fraud upon the court. In the context presented, the administrative leave was an adverse employment action. Finally, the appellate court rejected the defense that the plaintiff acted with unclean hands.
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