Government Liability Update

Alleged Confirmation of Cancellation of Business License in Closed Session Did Not Arise Out of Protected Activity for Anti-SLAPP Purposes

In Mary's Kitchen v. City of Orange, published October 25, 2023, the Fourth District Court of Appeal, Division 3 affirmed a trial court decision denying the defendant city's special motion to strike under anti-SLAPP law.  The plaintiff provides homeless services in the defendant city.  The city manager terminated the plaintiff's business license, citing safety concerns.  At a city council meeting, the agenda for which did not mention the plaintiff, the city council held a closed session meeting to discuss potential unspecified litigation.  After the closed session, during the regular session portion of the meeting, the city attorney reported that the city council had unanimously confirmed the actions of the city manager and staff in terminating the license. The minutes of the council meeting stated that the termination was "unanimously confirmed." Representatives for the plaintiff delivered a letter to the city demanding the city cure and correct alleged Brown Act violations that prevented the plaintiff and public from being present during and participating in the cancellation of the license.  The city took the position that it had not taken any action during the closed session.  The plaintiff filed a complaint and petition for writ of mandate, alleging Brown Act violations and seeking declaratory and injunctive relief.  The city filed an anti-SLAPP motion, with a declaration from the city attorney, stating that, in the face of the threat of litigation regarding the city manager's termination of the license, the city council did not take any action; there was no vote, no ratification, no decision to ratify the termination or to terminate the license, and did not make any decision to overturn the termination.  The city attorney declared that the city council unanimously confirmed the city manager's and staff's actions by doing nothing to reverse the city manager's decision.  The trial court concluded that the complaint did not arise from protected activity as defined in Code of Civil Procedure section 425.16.

The appellate court agreed.  The issue is whether the complaint arises from an unprotected action by the city, or protected speech by the city.  The appellate court interpreted the complaint as arising from unprotected action--the unanimous confirmation--and the fact that the agenda had not given proper notice of that action.  It was not based on the conversation between the city council and the city attorney in anticipation of litigation.  The plaintiff's complaint reasonably interpreted the words "unanimously confirmed" in the meeting minutes as the city council taking action, unanimously ratifying the city manager's decision.  That the city attorney provided a contrary declaration is not dispositive on the anti-SLAPP motion; the court accepts as true the evidence favorable to the plaintiff and evaluate the defendant's evidence only to determine if it has defeated the plaintiff's evidence as a matter of law.  A trier of fact could conclude the city attorney's testimony is self-serving and contradicts the meeting minutes.  Assuming that the action of ratifying the termination of the license occurred, it was not conduct in furtherance of free speech; it is ordinary business.  The complaint therefore does not arise from protected activity.

Elected Official Is Not an Employee of Public Entity for Purposes of Labor Code § 1102.5 Whistleblower Action

In Brown v. City of Inglewood, ordered published June 30, 2023, the Second District Court of Appeal, Division 1 reversed in part a trial court decision denying an anti-SLAPP special motion to strike.  The plaintiff was the elected treasurer of the defendant city.  She alleged that after she reported concerns about financial improprieties, the city and members of the city council retaliated against her by reducing her duties and authority, reducing her salary by 83 percent, taking away her seat on the dais at council meetings, and temporarily locking her and her staff out of her office.  The defendants produced declarations and other evidence that the reduction in authority and salary plaintiff complained of were enacted by ordinances passed by the council; that because she is not a member of the council, the treasurer has no standing to sit on the dais, and that a previous practice of allowing the treasurer to sit on the dais was discontinued when plaintiff purportedly became disruptive during meetings; and that the plaintiff's entry badge was temporarily deactivated when she failed to present a negative COVID-19 test.  The trial court granted the anti-SLAPP motion as to the plaintiff's claim for defamation, and her intentional infliction of emotional distress claim to the extent it was based on defamation, but denied it as to the plaintiff's claim under Labor Code section 1102.5 (protection from liability for whistleblower employees) and for IIED based on alleged retaliation.  The defendants appealed denial of the anti-SLAPP motion.

The appellate court held that the retaliation-based claims against the individual defendants arose from activity protected under anti-SLAPP.  The individual defendants did not have authority to reduce the plaintiff's authority or salary except by voting on ordinances or policies.  After they pass an ordinance or policy, the acts implementing the ordinance or policy are the city's rather than the individuals.  Elected officials' votes taken after a public hearing are protected activity under anti-SLAPP.  The plaintiff alleged that the individual defendants also retaliated against her by removing her from the dais.  But that removal alone is not sufficiently  material to satisfy the elements of her retaliation claims.  The court then analyzed the second prong of anti-SLAPP:  Whether the plaintiff could demonstrate that the claims were legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted is credible.  The section 1102.5 retaliation claim was not legally sufficient, because an elected official is not an "employee" for purposes of that statute.  Although the Legislature has defined "employees" to include elected officials in other statutes, it chose not to do so in section 1102.5.  The retaliation-based IIED claim against the individual defendants failed, because it is subsumed under the exclusive remedy provisions of worker's compensation.  The worker's compensation statutes, unlike section 1102.5, do include elected officials in their definition of "employees."  The trial court therefore should have granted the anti-SLAPP motion as to the individual defendants.

Suit against City for Releasing Police Officer Records without Prior Notice to Officer Was Subject to Anti-SLAPP; because Law Required Production, the Plaintiff's Claims Were Unlikely to Succeed

In Collondrez v. City of Rio Vista, published March 16, 2021, the First District Court of Appeal, Division 3 affirmed in part and reversed in part a trial court's ruling on an anti-SLAPP special motion to strike.  When the plaintiff was a police officer, he received a notice of intent to impose discipline for allegedly falsifying a police report concerning an arrest and use of force.  The officer pursued his Skelly rights and administrative appeal, but settled before the appeal was arbitrated.  A provision of the settlement agreement required the city to give the plaintiff prior notice before releasing disciplinary notices and reports concerning him. When Penal Code section 832.7, requiring disclosure of police personnel records pertaining to sustained findings of dishonesty or making false reports, went into effect, the city received media requests under the California Public Records Act and section 832.7 for the plaintiff's records.  The city released them, giving the plaintiff notice before some but not all of the releases.  Due to media coverage, the plaintiff's then-current employer fired him.  The plaintiff sued the city for breach of contract, invasion of privacy, interference with prospective economic advantage, and intentional infliction of emotional distress.  The trial court denied the city’s anti-SLAPP suit as to the breach of contract and privacy counts, and granted it as to the other counts.  It found the entire action arose from acts in furtherance of free speech and in connection with an issue of public concern, but found the plaintiff made a showing he would likely prevail on the breach of contract and privacy counts.

The appellate court agreed that the action arose out of conduct protected by the anti-SLAPP statute.  The focus is the defendant’s activity giving rise to the statute.  Here, the activity is release of the plaintiff’s personnel information to media outlets.  That is the activity that gave rise to the plaintiff’s alleged harm.  The addition of breach of contract causes of action does not change the gravamen of the suit.  Providing information to news outlets involves a matter of public interest.  The court rejected the plaintiff’s argument that anti-SLAPP did not appear because the city had a nondiscretionary duty to comply with the CPRA.  The CPRA requires agencies to make determinations whether the requested records are subject to or exempt from disclosure, and whether public interest in nondisclosure outweighs that served by disclosure.  That determination is not immune from the chilling effect of potential litigation anti-SLAPP is designed to prevent. 

The appellate court disagreed with the trial court’s determination that the plaintiff was likely to prevail on the breach of contract and invasion of privacy claims.  The court concluded the disclosure was required by Penal Code section 832.7(b)(1)(C).  The plaintiff contended that the statute required a “sustained finding” of dishonesty, which requires completion of the administrative appeal process.  The appellate court concluded that the “sustained finding” language includes an agency finding that remains in place because the plaintiff settles the case before his administrative appeal is heard.  The appellate court further rejected the plaintiff’s argument that the agency failed to properly redact information in the produced files as required by statute.

Anti-SLAPP applies to 42 U.S.C. Section 1983 Claims Litigated in State Court

In Patel v. Chavez, published April 30, 2020, the Second District Court of Appeal, Division 1 affirmed an order granting a special motion to strike the plaintiff's complaint under the Anti-SLAPP statute.  The defendant, the plaintiff's employee, filed a wage claim with the California Labor Board, alleging failure to pay minimum wage and other wage claim violations.  After the defendant testified at a Berman hearing, the Labor Commissioner issued a ruling granting the defendant over $200,000 in unpaid wages, penalties, and interest.  The plaintiff then sued the defendant and two Labor Commissioner officials under 42 U.S.C. section 1983, seeking $10 million.  The trial court granted the defendant's anti-SLAPP statute.  The plaintiff contended that the anti-SLAPP statute did not apply to federal claims brought in state court.

The appellate court ruled that anti-SLAPP applied.    Anti-SLAPP is a procedural law, not a substantive immunity.  A forum generally applies its own procedural law to the causes before it.  Anti-SLAPP therefore applies unless (1) the federal statute provides otherwise, or (2) the statute affects the plaintiff's substantive federal rights and is therefore preempted.  Multiple cases have held that the first possibility does not apply to anti-SLAPP; nothing in section 1983 imposes federal procedural law on state courts trying civil rights actions.  As to the second possibility, anti-SLAPP applies neutrally to all causes of action and does not target government conduct.  Nothing in the expedited summary-judgment-like anti-SLAPP procedure stands as an obstacle to accomplishing the goals of section 1983.  It also does not condition plaintiff's rights under section 1983 on compliance with the anti-SLAPP statute; rather, it conditions the rights on showing some probability that the plaintiff has some right to prevail at all under section 1983.  Given the low bar for prevailing against an anti-SLAPP motion, the fee-shifting provision for successful defendants is not a sufficient bar to discourage section 1983 plaintiffs.

Decision to Release 5150 Detainee Is Not Protected by Anti-SLAPP Law

In Swanson v. County of Riverside, published June 17, 2019, the Fourth District Court of Appeal, Division 1 affirmed a trial court's denial of a special motion to strike under the anti-SLAPP statute.  The plaintiffs sued the defendant county because the county released a Welfare & Institutions Code section 5150 detainee after evaluation under Welfare & Institutions Code section 5152.

The appellate court concluded that an evaluation under section 5152 is not speech protected by the anti-SLAPP statute.  It is not analogous to a peer review, which is protected.  The suit is for the county's act in releasing the detainee, not for a statement.  The appellate court declined to analyze the plaintiffs' chances for success.

Anti-SLAPP Special Motion to Strike Not Available Where Communications That Form Basis of Vendor Suit Do Not Involve Matters Pending Before a Legislative Body or in Connection with a Public Issue

In Rand Resources, LLC v. City of Carson, published February 4, 2019, the California Supreme Court affirmed in part and reversed in part a lower appellate court's ruling on anti-SLAPP special motions to strike.  The plaintiff allegedly entered into an exclusive contract with the defendant city to act as the city's exclusive agent in negotiating with the NFL to build a home stadium in the city for an NFL team.  The plaintiff alleged that while it was representing the city, the city stopped complying with the agreement, and worked with another defendant vendor to act as the city's agents in NFL negotiations.  The plaintiff further alleged that before the plaintiff signed the agreement with the city, the city attorney told the plaintiff that the two-year contract would be extended; but when the plaintiff sought an extension, the city council voted to deny the extension.  The plaintiff sued the city for breach of contract and promissory fraud; sued the city, mayor, and the other vendor for fraud; and sued the other vendor for intentional interference with contract and intentional interference with prospective economic advantage.  The defendants made special motions to strike the causes the action, which the trial court granted.  The appellate court reversed, concluding the causes of action did not arise from conduct protected by anti-SLAPP.

The Supreme Court concluded that the causes of action against the city were not protected by anti-SLAPP.  The crux of those claims is that the defendants allegedly concealed and lied about the city's alleged breach of its exclusivity provision.  These were not protected communications under subdivision (e)(2) or (e)(4) of Code of Civil Procedure section 425.16.  To meet (e)(2)'s definition of protected conduct--written or oral statements or writings made in connection with an issue under consideration or review by a legislative body--the defendant's acts that form the basis of the claim must be statements in connection with an issue being considered by the legislative body (here, the city council) at the time the statements are made.  Alleged lies about whether the other vendor was representing the city in NFL negotiations were not connected with any issue which was before the city council at that time.  Subdivision (e)(4)--conduct in furtherance of the exercise of free speech in connection with a public issue or an issue of public interest--also was not satisfied.  Although the building of the stadium was an issue of public interest, the alleged conversations on who should represent the city in NFL negotiations did not.  The same considerations apply to the city attorney's alleged promises.  Since they were not made when the agreement renewal was pending before the city council, they were not made in connection with an issue that was then under review by the city council.  And the issue of whether the agreement with a vendor would be renewed was not in connection with a public issue or issue of public interest.

The court also concluded, however, that the tortious interference causes of action against the other vendor did involve protected conduct.  They were based on the other vendor's communications with the NFL on the stadium issue (an issue of public interest), and were made in connection with the issue of the agreement with plaintiff that was at that time before the city council.

 

County Counsel's Breach of Contract Suit against County for Employment Investigation Does Not Survive Anti-SLAPP

In Guarino v. County of Siskiyou, ordered published March 29, 2018, the Third District Court of Appeal affirmed a trial court order granting an anti-SLAPP special motion to strike the plaintiff's complaint.  The plaintiff was county counsel.   According to the plaintiff's allegations,i n 2011, the county investigated a complaint by the plaintiff's subordinate that the plaintiff had harassed the subordinate.  The investigation was closed by the county with no finding of wrongdoing.  At the end of the year, the county appointed the plaintiff for a second term.  In 2012, the subordinate resigned and filed a federal suit against the plaintiff and the county.  Soon after, the county board of supervisors conducted a closed-session employment review of plaintiff, and instructed him to terminate the premises.  Another investigation exonerated the plaintiff.  The board voted to rescind the plaintiff's second term.  The complaint alleged these board votes were illegal, because they did not follow the procedure under the Government Code for removing a county counsel.  The administrative officer then filed an accusation with the county clerk under the Government Code procedure for removing a county counsel.  The plaintiff resigned.  He then sued the county, the board of supervisors, and the county administrative officer on assorted grounds.  The causes of action at issue in the appeal were breach of employment contract and breach of employment contract for constructive discharge.

The appellate court ruled that the first prong of anti-SLAPP was established, because the investigation and the resulting actions of the county, board, and administrative officer were all protected speech.  On the second prong, the plaintiff had the burden of showing a probability of prevailing on the merits.  He could not make that showing on his breach of contract causes of action, because public employment is held by statute, not contract.

Public Entity's Permitting Decisions Not Protected Activity under Anti-SLAPP Law

In Shahbazian v. City of Rancho Palos Verdes, published November 22, 2017, the Second District Court of Appeal, Div. 7 affirmed a trial court's denial of the defendant city's special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute.  The plaintiffs sued the city over the city's decision to issue permits permitting the plaintiffs' neighbors to modify a common fence.  The plaintiffs alleged that the city violated ordinances and selectively enforced others.  Before suing, the plaintiffs administratively appealed the permitting decisions up to the city council, which allowed the decisions to stand.  The plaintiffs alleged inverse condemnation and selective enforcement, among other claims.  The city demurred and moved to strike the complaint, alleging that the causes of action arose out of speech and petitioning activity protected by the anti-SLAPP law.  The trial court concluded that the plaintiffs' causes of action did not arise out of activity protected under anti-SLAPP.

The appellate court agreed.  The plaintiffs sued the city based on the city's underlying acts--the permitting decisions--and not the oral statements or other expressive conduct concerning those acts.  The plaintiffs did not sue the city for injuries allegedly caused by any of the speech or communications made during the administrative appeals or votes on the permitting decisions.  If anti-SLAPP were construed otherwise, any plaintiff who sued a public entity for any act that involved votes, hearings, or discussions would have to meet the requirements of anti-SLAPP law.  That was not the Legislature's intent.

 

Public Entity May Not Retaliate against Employee for Disclosing Entity's Potential Fraud upon the Court

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.

Local Legislators' Votes are Protected Conduct under Anti-SLAPP Statute

In City of Montebello v. Vasquez, published August 8, 2016, the California Supreme Court reversed the denial of a special motion to strike under the anti-SLAPP statute. The city sued three former council members and a former city administrator, alleging that their vote to approve a waste hauling contract violated Government Code section 1090 due to a conflict in interest. The council members asserted that their vote was protected conduct under Government Code section 425.16. The lower appellate court ruled that the conduct was not protected. It also ruled that the exemption from anti-SLAPP motions for public enforcement actions did not apply to the city's suit.

The Supreme Court agreed that the prosecutorial exemption did not apply. By statute, it applies only to actions brought in the name of the people of the state by the attorney general, a district attorney, or a city attorney, acting as a public prosecutor. A suit brought by a city, in its own name and through private counsel, does not meet that criteria. But the Supreme Court reversed the ruling that the vote was not protected conduct. The statute protects acts in furtherance of the defendant's rights of petition or free speech under the federal or state constitution. Although the U.S. Supreme Court has held that a legislator's vote is not protected free speech, the anti-SLAPP statute does not only apply to activity protected by the constitutional right of free speech, but also acts in furtherance of those rights. Since the statute expressly protects communications before legislative bodies and in legislative proceedings, the statute protected the defendants votes, their statements in connection with their votes, and their statements when negotiating the contract. Although anti-SLAPP does not protect illegal conduct, the question of whether the conduct was illegal was premature. The court remanded the case for a determination of the other issues under anti-SLAPP analysis.