Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. 30-2009-00122880, Robert J. Moss, Judge.
Lewis Brisbois Bisgaard & Smith, LLP and Nancy E. Zeltzer and Gary M. Lape for Defendants and Appellants County of Orange, John Moorlach, and Jack Anderson.
The Petersen Law Firm, A Law Corporation, and Elizabeth A. Barker for Plaintiff and Respondent Jo Ann Galisky.
OPINION
ARONSON, J.
Defendants County of Orange, John Moorlach, and Jack Anderson (sometimes collectively referred to as County) appeal the trial court’s orders denying their special motions to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (all further statutory references are to the Code of Civil Procedure, unless otherwise noted). The trial court denied the motions, finding plaintiff Jo Ann Galisky’s claims arose from the County’s termination of her employment rather than any petitioning or free speech activity protected by the anti-SLAPP statute. We agree and affirm the trial court’s orders.
SLAPP is an acronym for strategic lawsuit against public participation that has become common parlance, at least in legal circles, since the Legislature enacted section 425.16 in 1992. (See Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1345, fn. 1.)
I
Facts and Procedural History
The following factual summary is based on the allegations in Galisky’s complaint. In 1984, Galisky joined the Orange County Sheriff’s Department as a deputy sheriff. Before the County terminated her employment in February 2008, she rose through the ranks to the department’s number two position, undersheriff.
In October 2006, John Chamberlain died while in custody at the Orange County Jail. At the time, Galisky served as assistant sheriff responsible for special services, which included finances, training, support services, personnel, and media relations. In January 2008, Galisky testified before a grand jury the Orange County District Attorney convened to investigate Chamberlain’s death. According to Galisky, the district attorney convened the grand jury as a political move to discredit the sheriff’s department and seize responsibilities from it.
Also in January 2008, Orange County Sheriff Michael Carona resigned his position due to alleged misconduct. Anderson assumed the acting sheriff position while the County searched for Carona’s successor. Anderson informed Galisky he considered her a political liability due to her outspoken support of Carona and her homosexuality. Just a few days earlier, however, Anderson asked her to serve as his undersheriff if he became acting sheriff.
In February 2008, Anderson received a “presentation” and letter from the District Attorney’s Office regarding the grand jury investigation into Chamberlain’s death. Based on the investigation, Anderson told Galisky he “‘needed to do what was best for the organization, ’” which included terminating Galisky and Assistant Sheriff Steve Bishop. Anderson explained Galisky could either retire or accept immediate termination.
Galisky inquired what she did to warrant termination. Anderson refused to provide any explanation other than stating the district attorney wanted to indict her but could not get the necessary votes. Anderson refused to elaborate any further despite Galisky’s protest that no grounds existed for terminating her because she properly discharged her duties at all times. Galisky requested that, instead of immediately terminating her, Anderson place her on administrative leave, investigate whatever grounds he purportedly relied on in seeking to terminate her, and allow Galisky to respond to those grounds as required by the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq. (POBRA)). Anderson denied Galisky’s request and also refused to allow her to phone her attorney before choosing between retirement and termination. Anderson asserted POBRA did not apply because Galisky served at the sheriff’s pleasure and therefore had no right to notice of the grounds for her termination, an administrative appeal regarding her termination, reassignment to another position within the department, or any other protections POBRA guaranteed public safety officers.
“[POBRA], initially enacted in 1976 [citation], requires state and local government agencies that employ peace officers to provide them with procedural rights and protections when they are subjected to investigation, interrogation or discipline. [Citation.]” (Department of Finance v. Commission on State Mandates (2009) 170 Cal.App.4th 1355, 1358, fn. omitted.) “‘One of the basic protections is the right to an administrative appeal of punitive actions.’ [Citation.]” (Riverside Sheriffs’ Assn. v. County of Riverside (2009) 173 Cal.App.4th 1410, 1425.)
The same day a local newspaper ran an article reporting Galisky’s termination. The article quoted Moorlach, the Orange County Board of Supervisors Chairman, who explained the sheriff’s department “released” Galisky from her “commitments” to the department due to her role in Chamberlain’s death.
In April 2008, after receiving both the district attorney’s report and the grand jury transcripts regarding the investigation of Chamberlain’s death, Anderson informed the Board of Supervisors several employees of the sheriff’s department blatantly violated department policies and procedures in connection with Chamberlain’s death and testified falsely before the grand jury. He emphasized the conduct disclosed through the investigation appalled him and disgraced the department’s hardworking members. Finally, he vowed not to tolerate the repugnant actions described in the grand jury transcripts. Anderson did not specifically mention Galisky.
In addition to the County, Moorlach, and Anderson, Galisky sued other command staff members from the sheriff’s department, the district attorney, and the deputy district attorneys involved in the grand jury investigation. Galisky’s verified petition for writ of mandate and complaint alleged causes of action for violations of POBRA, sexual orientation discrimination in violation of California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)), wrongful termination in violation of public policy, and federal civil rights violations under 42 U.S.C. section 1983.
The County filed an anti-SLAPP motion challenging Galisky’s pleading. The trial court denied the County’s motion in September 2009, finding the “gravamen [of Galisky’s claims] is wrongful discharge or termination, ” rather than petitioning or free speech activity protected by the anti-SLAPP statute. The County timely appealed. Moorlach and Anderson filed separate anti-SLAPP motions the trial court denied in January 2010 for the same reasons as the County’s motion. Moorlach and Anderson timely appealed the trial court’s ruling and we consolidated their appeal with the County’s appeal.
The parties do not dispute the County, as a governmental entity, had the right to bring an anti-SLAPP motion. (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17 [“we believe it is clear, in light of both the language and purpose of California’s anti-SLAPP statute, that the statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity”].)
Defendants Tony Rackauckas, Catherine Zurn, Jeff Bardzik, Keith Bogardus, and Mike Lubinski also appealed the trial court’s ruling denying their anti-SLAPP motions, but they dismissed their appeal when Galisky dismissed her claims against them in the trial court. No one challenged the propriety of Galisky dismissing claims subject to the automatic stay arising from the appeal. (Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191-192.)
II
Discussion
A. The Anti-SLAPP Statute
The anti-SLAPP statute authorizes a special motion to strike any cause of action arising from the exercise of petition or free speech rights: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection 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.” (§ 425.16, subd. (b)(1).)
Analysis of an anti-SLAPP motion “requires the court to engage in a two step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) “‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)....’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).) Second, if the court finds the defendant met this burden, “it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon, supra, 29 Cal.4th at p. 67.) If the defendant fails to satisfy the burden on the analysis’ first step, the anti-SLAPP statute does not apply and the analysis ends without considering the second step. (Clark v. Mazgani (2009) 170 Cal.App.4th 1281, 1286 (Clark).)
Section 425.16, subdivision (e), defines the categories of protected activities as follows: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ 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.”
We review a trial court’s order granting or denying an anti-SLAPP motion de novo. (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 866.)
In her respondent’s brief, Galisky makes a shotgun attack on the anti SLAPP statute’s constitutionality. Although numerous appellate decisions have rejected similar challenges, we need not reach these issues because we conclude the anti SLAPP statue does not apply to her causes of action. (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [“It has heretofore been considered against the policy of this court (and of courts of last resort generally) to reach out and unnecessarily pronounce upon the constitutionality of any duly enacted statute. At least as early as Estate of Johnson (1903) 139 Cal. 532, 534, this court said, ‘A court will not decide a constitutional question unless such construction is absolutely necessary’”].)
B. Galisky’s Claims Do Not Arise From Protected Activity
The dispositive question on this appeal is whether Galisky alleged causes of action “arising from any act... in furtherance of [the County’s] right of petition or free speech.” “[T]he statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]” (City of Cotati, supra, 29 Cal.4th at p. 78.)
“[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.]” (City of Cotati, supra, 29 Cal.4th at pp. 76-77.) Likewise, “[t]hat a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (Id. at p. 78.)
City of Cotati involved mobilehome park owners who sued the city in federal court alleging the city’s rent control ordinance amounted to a regulatory taking of their property without compensation. The city responded by suing the owners in state court for declaratory relief regarding the ordinance’s constitutionality. (City of Cotati, supra, 29 Cal.4th at p. 72.) The city conceded it filed the state court action to gain a more favorable forum for litigating the ordinance’s constitutionality and to provide a basis for asking the federal court to abstain from ruling on the owners’ lawsuit. (Id. at p. 73.) The Supreme Court concluded the city’s action did not “arise from” protected petitioning activity because the city based its lawsuit on the dispute over the ordinance’s constitutionality, and not the owners’ act of filing the federal court action. Although the owners’ federal case “informed City of the existence of an actual controversy justifying declaratory relief, ” the owners’ federal court lawsuit did not constitute the controversy. (Id. at pp. 79-80.) The anti-SLAPP statute therefore did not apply.
Numerous appellate court decisions illustrate the need to carefully identify “‘the act which forms the basis for the plaintiff’s cause of action’” when determining whether the action arises from an act in furtherance of the defendant’s petition or free speech rights. (See, e.g., Clark, supra, 170 Cal.App.4th at pp. 1286-1287; Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160-161 (Marlin); Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1536-1540 (Kolar); State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 977 (Majorino); Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1397 (Gallimore).)
In Clark, the Court of Appeal explained a tenant’s fraudulent eviction claim did not “arise from” the landlord’s protected petitioning activity even though the landlord’s successful unlawful detainer action triggered the tenant’s lawsuit: “[The landlord] was not sued for exercising constitutional rights. She was sued to compel compliance with the provisions of the [local rent control ordinance]. [The tenant’s] suit was unquestionably ‘triggered by’ [the landlord’s] statements and the documents she filed in connection with the unlawful detainer. But the suit is not based on those statements or filings. It is based on [the tenant’s] claim that [the landlord] fraudulently invoked the family occupancy exemption of the [local rent control ordinance] to effect [the tenant’s] eviction, and failed to fulfill her obligations under that ordinance to install her daughter in the apartment or to pay [the tenant’s] relocation expenses. [The landlord’s] eviction notices and the unlawful detainer action are merely cited as evidence and background to illustrate [the landlord’s] subsequent violation of the [local rent control ordinance] and Civil Code section 1947.10, subdivision (a).” (Clark, supra, 170 Cal.App.4th at pp. 1289-1290; see also Marlin, supra, 154 Cal.App.4th at pp. 160 161.)
Kolar involved a “‘garden variety’” legal malpractice action based on an attorney representing a client in earlier litigation. We concluded the anti-SLAPP statute did not apply because the malpractice action arose when the attorney failed to perform his professional duties. We explained the malpractice action was not based on the lawyer’s petitioning activity relating to the earlier litigation, even though the prior litigation provided the context for the malpractice. (Kolar, supra, 145 Cal.App.4th at p. 1540.)
In Majorino, the Court of Appeal explained an insurer’s declaratory relief action did not “arise from” the underlying personal injury action even though it sought a declaration regarding the insurer’s duty to defend its insured in the personal injury action: “[The injured party’s] personal injury suit against the [insureds] did trigger the chain of events that caused [the insurer] to seek a judicial declaration of its coverage obligations. And the nature of the claims in the underlying personal injury case frames the scope of coverage under the [the insurer’s] policy. But the action for declaratory relief arose from the tender of defense and the terms of an insurance policy..., not from the litigation process itself.” (Majorino, supra, 99 Cal.App.4th at p. 977.)
Finally, in Gallimore, the Court of Appeal concluded an action against an insurer for unfair claims handling practices did not “arise from” an official Department of Insurance (DOI) investigation and report regarding the insurer’s procedures for handling claims even though the plaintiff’s complaint cited the report’s findings. The court explained “the DOI report may have... ‘triggered’ plaintiff’s action, but that action did not ‘arise from’ such report nor from any communication by State Farm to the DOI in connection therewith. [¶] As plaintiff exhaustively argues, his complaint alleges that State Farm engaged in certain claims handling misconduct and violated a number of statutory and regulatory rules. He seeks, on behalf of the general public, to call State Farm to task for that conduct. Plaintiff seeks no recovery from State Farm for State Farm’s activity in communicating information to [the] DOI, nor does he allege that any such communication was wrongful or the cause of any injury to him.... [¶] We thus conclude that the alleged wrongful acts of State Farm were not done in furtherance of any claimed right of petition or free speech.” (Gallimore, supra, 102 Cal.App.4th at p. 1399.)
As in the foregoing cases, Galisky’s claims do not “arise from” the County’s petitioning or free speech activities. Galisky filed suit seeking a writ of mandate compelling the County to reinstate her employment or, at a minimum, provide her an administrative hearing so she could present evidence and challenge the grounds for her termination. She also sought monetary damages for her lost wages and other injuries. Galisky’s first cause of action alleged the County violated POBRA by failing to provide her an administrative appeal and other rights guaranteed by POBRA. Her second and third causes of action alleged the County violated FEHA and public policy by wrongfully terminating Galisky based on her sexual orientation. Galisky’s fourth and fifth causes of action alleged the County violated her due process rights by terminating her public employment without notice and an opportunity to refute the grounds for her termination.
Thus, Galisky’s causes of action are based on the County’s termination of her employment and its refusal to provide her notice and an opportunity to respond to the grounds for her termination. Terminating an employee is not an act in furtherance of an employer’s petition or free speech rights. (See McConnell v. Innovative Artists Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 176-177, 181 [employer taking adverse employment action against employee, including reassignment and termination, is not protected First Amendment activity within the anti-SLAPP statute’s meaning].) Similarly, denying an employee notice and an opportunity to challenge the grounds for termination are not acts in furtherance of the employer’s petition or free speech rights.
The County bore the burden to show Galisky’s causes of action arose from protected activity (Equilon, supra, 29 Cal.4th at p. 67), but it made no attempt to show it exercised its petition or free speech rights by terminating Galisky or by refusing to provide her notice and an opportunity to be heard regarding the grounds for her termination. Instead, the County contends it exercised its petition and free speech rights by participating in the grand jury investigation into Chamberlain’s death and, to a lesser degree, through public comments Anderson and Moorlach made regarding Galisky’s termination and the grand jury investigation. Assuming these are protected activities, the County nonetheless failed to show Galisky’s causes of action arose from these activities.
We express no opinion on whether Galisky’s administrative appeal constitutes an “official proceeding authorized by law” within the meaning of section 425.16, subdivision (e)(1) or (e)(2). The County did not make this argument and it bore the burden of establishing at least one category from section 425.16, subdivision (e) applied to Galisky’s claims. (Equilon, supra, 29 Cal.4th at p. 67.)
The County emphasized Galisky alleged facts regarding Chamberlain’s death, her testimony before the grand jury, and Anderson’s reference to the grand jury investigation when he terminated Galisky. The County also points out Galisky alleged that, after her termination, Moorlach made public comments to the press regarding the grounds for her termination and Anderson made public comments to the Board of Supervisors regarding the grand jury’s findings. But the fact Galisky included these allegations regarding arguably protected activities in her complaint does not mean she based her causes of action on those activities. The cases discussed above demonstrate that merely including allegations regarding protected activity does not subject a claim to the anti-SLAPP statute even if the protected activity preceded or triggered the lawsuit. (City of Cotati, supra, 29 Cal.4th at pp. 76-78; Clark, supra, 170 Cal.App.4th at pp. 1289-1290; Majorino, supra, 99 Cal.App.4th at p. 977; Gallimore, supra, 102 Cal.App.4th at p. 1399.) “[T]he critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]” (City of Cotati, supra, 29 Cal.4th at p. 78.)
Galisky did not base her causes of action on the grand jury investigation of Chamberlain’s death. She did not seek any relief against the County because it conducted, or participated in, the grand jury investigation. She also did not sue the County because it referred to the grand jury investigation when it terminated her employment. Even assuming the County relied on information uncovered through the grand jury investigation when terminating Galisky, she did not sue the County for relying on that information. At most, the grand jury investigation provided the context or background, but not the basis, for Galisky’s claims. (See, Clark, supra, 170 Cal.App.4th at p. 1290 [landlord’s “eviction notices and the unlawful detainer action are merely cited as evidence and background to illustrate” the landlord fraudulently removed the property from the rental market, but did not serve as the basis for the tenant’s fraudulent eviction claim]; Episcopal Church Cases (2009) 45 Cal.4th 467, 478 [“The additional fact that protected activity may lurk in the background - and may explain why the rift between the parties arose in the first place - does not transform a property dispute into a SLAPP suit”].)
Galisky also did not base her causes of action on the public comments Moorlach and Anderson made after her termination. Indeed, the comments made after her termination provided no basis for Galisky’s claim the County violated POBRA or her claims the County violated FEHA and public policy by wrongfully terminating her due to her sexual orientation. Simply stated, the comments do not relate to Galisky’s first three causes of action at all.
The County’s challenge to Galisky’s two civil rights causes of action fares no better. These claims are based on termination of her public employment without notice and an opportunity to refute the grounds for her discharge. Galisky argued public employees have a due process right to a “name-clearing hearing” when the employer relies on grounds that may stigmatize the employee and impact efforts to obtain future employment. Because Anderson allegedly refused to provide any specific grounds for terminating her, Galisky described Moorlach’s and Anderson’s public comments to show the County relied on grounds requiring a “naming-clearing hearing.” Specifically, Galisky alleged these comments to show the County purportedly terminated her for misconduct associated with Chamberlain’s death and her allegedly false grand jury testimony, which are grounds that would stigmatize Galisky and require the County to provide her a “name-clearing hearing.” Galisky did not allege Moorlach’s and Anderson’s comments as “the act underlying” her civil rights causes of action. Rather, she alleged the County terminated her without notice and an opportunity to refute the grounds for her discharge as “the act underlying” her civil rights causes of action. Galisky alleged the comments as evidence showing her right to a “name-clearing hearing.” (See Gallimore, supra, 102 Cal.App.4th at p. 1399 [reliance on protected activity as evidence to support a cause of action does not mean the cause of action is based on the protected activity; “This contention confuses State Farm’s allegedly wrongful acts with the evidence that plaintiff will need to prove such misconduct”]; see also Clark, supra, 170 Cal.App.4th at p. 1290.)
We conclude the County failed to meet its burden to show Galisky’s causes of action “arose from” protected activity. We therefore do not reach the second step of the anti-SLAPP analysis - that is, whether Galisky demonstrated a probability of prevailing on her causes of action. (City of Cotati, supra, 29 Cal.4th at pp. 80-81.) We express no opinion on whether Galisky adequately alleged any cause of action. We merely decide she did not base her causes of action on activity protected by the anti-SLAPP statute.
Galisky filed a request that we take judicial notice of (1) a notice of errata she filed in the trial court regarding her opposition to Anderson’s demurrer, (2) the reporter’s transcript from the September 18, 2009 hearing on the County’s anti-SLAPP motion, and (3) the reporter’s transcript from the January 15, 2010 hearing on Moorlach’s and Anderson’s anti-SLAPP motions. We deny the request in its entirety.
The County relied on authority holding a claim based in part on protected activity is subject to the anti-SLAPP statute. (See, Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551 [“Where, as here, a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 ‘“unless the protected conduct is ‘merely incidental’ to the unprotected conduct.”’ [Citation.]”]; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [same].) These cases, however, assume the plaintiff based the cause of action, at least in part, on protected activity. These cases are inapposite because Galisky did not base her causes of action on any protected activity.
III
Disposition
The orders are affirmed. Galisky shall recover her costs on appeal.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.
The notice of errata is irrelevant to our analysis. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed”], overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The notice of errata relates to arguments the parties made on the second step of the anti-SLAPP analysis regarding Galisky’s probability of prevailing on the merits. As specified above, we do not reach the second step because the County failed to meet its burden on the first step. Because the two reporter’s transcripts already are part of the record on appeal, we need not judicially notice them.