Towner v. County of Ventura ( 2021 )

Filed 4/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
TRACY TOWNER, B306283
Plaintiff and Appellant, (Ventura County
Super. Ct. No. 56-2019-
v. 00527392-CU-OE-VTA)
COUNTY OF VENTURA et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Ventura
County, Vincent J. O’Neill, Judge. Reversed and remanded.
Pachowicz Goldenring, Mark R. Pachowicz, and Jennie
Hendrickson for Plaintiff and Appellant.
The Zappia Law Firm, Edward P. Zappia, Brett M. Ehman,
and Gail Wise for Defendants and Respondents.
_______________________
Tracy Towner appeals from an order granting the special
motion to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute)1
filed by defendants County of Ventura (County), Ventura County
Office of the District Attorney (VCDA), District Attorney
Gregory D. Totten, Chief Assistant District Attorney Michael
Schwartz, and outside counsel Edward Zappia (collectively, the
County defendants). Towner worked for VCDA as an
investigator. He alleged the County defendants terminated him
for dishonesty based on his testimony at a fellow peace officer’s
administrative hearing before the Civil Service Commission of
Ventura County (Commission). After Towner appealed the
termination decision to the Commission, the County filed a
petition for writ of mandate requesting the superior court enjoin
the Commission from hearing Towner’s appeal due to an alleged
conflict of interest. The County attached as exhibits to its
petition excerpts from an investigative report on Towner’s
conduct and notices of discipline from VCDA to Towner relating
to VCDA’s termination decision. The superior court denied the
County’s request for ex parte relief, and after a hearing, the
Commission reversed the County’s termination of Towner and
ordered him reinstated.
Towner then filed this action, alleging five causes of action,
including for violation of the Public Safety Officers Procedural
Bill of Rights Act (Gov. Code, § 3300 et seq.; POBRA) and
negligence per se based on violation of Penal Code 832.7.2
1 “SLAPP is an acronym for ‘strategic lawsuits against public
participation.’” (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 413, fn 2.)
2 All further undesignated statutory references are to the
Penal Code.
2
Towner contends the trial court erred in granting the County
defendants’ special motion to strike the POBRA and section 832.7
causes of action because the County’s disclosure of his
confidential personnel records was illegal as a matter of law and
therefore was not protected activity under Code of Civil
Procedure section 425.16. Because the County defendants’ willful
disclosure of Towner’s confidential personnel records without
complying with mandatory procedures for disclosure was
punishable as a misdemeanor under Government Code
section 1222, the disclosure did not constitute protected activity.
We reverse.
FACTUAL AND PROCEDURAL BACKGROUND3
A. The Hearing on Kimberly Michael’s Administrative
Complaint
VCDA hired Towner in 1997 to serve as an investigator.
Towner received several promotions and became an investigative
commander in June 2014. In 2017 VCDA investigator Kimberly
Michael brought an administrative action alleging “fraud,
favoritism, and other non-merit based factors in the promotional
process.” Towner testified under subpoena at the hearing on
Michael’s action before the Commission (Michael hearing).
Following the hearing, the Commission issued a decision and
order finding Towner “credibly testified that senior DA
investigator Thomas Mendez had been instructed by Deputy
3 The factual background is taken from the pleadings and
declarations filed in support of and in opposition to the County
defendants’ motion to strike. (Code Civ. Proc., § 425.16,
subd. (b).)
3
Chief [Ken] Valentini to fail [Michael] in a 2014 promotional
examination when Deputy Chief Valentini was in the role of
Acting Chief. Although senior DA investigator Mendez denied
telling [Towner] this information, the commission finds that,
based upon a totality of the evidence and an evaluation of the live
testimony of both witnesses, [Towner’s] testimony was truthful.”
B. Towner’s Termination and Related Proceedings
On July 27, 2017, at the direction of Totten and Schwartz,
VCDA opened an independent investigation into Towner’s
testimony at the Michael hearing. The investigation concluded,
based on interviews with Towner, Mendez, and others, that
Towner had testified falsely at the Michael hearing. On March
15, 2018 VCDA gave Towner notice of its intent to terminate him
for dishonesty. Towner submitted evidence at an administrative
hearing to prove his honesty, including a polygraph test. But on
April 23, 2018 VCDA terminated Towner.
Towner requested an appeal hearing before the
Commission on VCDA’s termination decision. The Commission
set a hearing for September 24, 2018. On June 4, 2018 the
County filed a motion with the Commission to disqualify the
Commission from presiding over the hearing based on an
asserted conflict of interest, and to appoint an independent
hearing officer. On June 28, 2018 the Commission denied the
motion.
On August 3, 2018 the County filed a petition for writ of
mandate in the Ventura Superior Court, requesting the court
enjoin the Commission from hearing Towner’s appeal. (County of
Ventura v. Ventura County Civil Service Commission et al.
(Super. Ct. Ventura County, 2018, No. 56-2018-00515881-CU-
4
WM-VTA).) The County argued the Commission had “a clear
conflict of interest” in hearing Towner’s appeal because the
Commission found Towner’s testimony during the Michael
hearing credible and the Commission was defending its decision
in the then-pending writ proceeding filed by the County. The
County attached as exhibits to its petition an excerpt of the
independent investigator’s report recommending the allegation of
dishonesty against Towner be sustained, as well as the March 15
and April 23, 2018 notices of disciplinary action relating to
Towner’s termination. The notices of disciplinary action stated at
the top of the first page, “CONFIDENTIAL PERSONNEL
DOCUMENT,” and at the top of each subsequent page,
“CONFIDENTIAL.”4
On September 4, 2018 the County filed an ex parte request
to vacate the administrative hearing dates set by the
Commission. Towner opposed the County’s request. Towner did
not request a protective order or seek to seal the personnel
records the County had attached as exhibits to its petition. The
superior court denied the County’s ex parte application.5 On July
12, 2019 the Commission ordered Towner reinstated with full
back pay and benefits.
C. The Complaint
On November 12, 2019 Towner filed the operative first
amended complaint against the County defendants, alleging
4 The County filed a first amended petition on August 29,
2018, again attaching Towner’s personnel records.
5 The record does not reflect the superior court’s final
decision, if any, on the writ petition.
5
causes of action for retaliation in violation of the California Fair
Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA)
(first cause action); failure to prevent discrimination,
harassment, and retaliation in violation of FEHA (second cause
of action); violations of POBRA (third cause of action), negligence
(fourth cause of action); and negligence per se based on violations
of section 832.7 (fifth cause of action). As to Towner’s POBRA
claim, the first amended complaint alleged the County
defendants intentionally publicly disclosed his confidential
personnel records in violation of Government Code sections 3300,
3303, and 3304, with knowledge the disclosure was unlawful.
Towner alleged the County, VCDA, Totten, and Schwartz hired
Zappia as outside counsel and directed him to file Towner’s
confidential personnel records in the writ proceeding. As to
Towner’s negligence per se claim, the first amended complaint
alleged the County defendants violated section 832.7 by publicly
disclosing Towner’s confidential personnel records without
appropriate judicial review, and “[i]n failing to abide by the
statute, defendants and each of them are presumed negligent.”
D. The County Defendants’ Special Motion To Strike
On January 6, 2020 the County defendants filed a special
motion to strike the third and fifth causes of action of the first
amended complaint under Code of Civil Procedure section 425.16.
The County defendants argued that because the conduct alleged
in the third and fifth causes of action was the filing of a writ
petition in the superior court, the causes of action arose from
protected activity in furtherance of the County defendants’ right
of petition. The County defendants asserted Towner could not
establish a probability of prevailing on his claims because
6
POBRA does not protect against disclosure of confidential
information and there is no private right of action for violations
of section 832.7. Further, the filing of the writ petition was
absolutely privileged under Civil Code section 47, subdivision (b),
and POBRA did not authorize claims against defendant Zappia.
The County defendants requested over $16,000 in attorneys’ fees
and costs incurred in bringing their motion.
Towner opposed the motion, arguing the third and fifth
causes of action did not arise out of protected activity because the
County defendants’ intentional disclosure of his confidential
personnel records was illegal as a matter of law, citing to the
Supreme Court’s decision in Flatley v. Mauro (2006) 39 Cal.4th
299 (Flatley). Towner asserted he had actionable claims under
POBRA and section 832.7, and the litigation privilege did not
apply. Towner attached as an exhibit to his opposition an
Attorney General opinion interpreting Government Code section
1222, which provides, “Every willful omission to perform any
duty enjoined by law upon any public officer, or person holding
any public trust or employment, where no special provision is
made for the punishment of such delinquency, is punishable as a
misdemeanor.” The Attorney General concluded “[t]he disclosure
of peace officer personnel records in violation of . . . section 832.7
may constitute a crime under the terms of Government Code
section 1222 if the conditions of the latter statute are met.”
(82 Ops.Cal.Atty.Gen. 246 (1999).)
At a hearing on March 11, 2020 the trial court granted the
County defendants’ motion. In its written ruling the court found
the County defendants’ writ petition and attachments constituted
“a written statement submitted in a judicial proceeding, and thus
[was] within the scope of the [anti-]SLAPP statute.” Further, the
7
court held Towner failed to show a probability of success on the
merits because the County defendants’ conduct was protected by
the litigation privilege under Civil Code section 47, subdivision
(b), and neither POBRA nor section 832.7 provided a private
right of action based on disclosure of confidential personnel
records.
Towner timely appealed.
DISCUSSION
A. Special Motions To Strike
A cause of action arising from an act in furtherance of a
defendant’s constitutional right of petition or free speech in
connection with a public issue is subject to a special motion to
strike unless the plaintiff demonstrates a probability of
prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1);
see Barry v. State Bar of California (2017) 2 Cal.5th 318, 321;
Baral v. Schnitt (2016) 1 Cal.5th 376, 381.) An “‘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, in relevant part, “any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law.” (Code Civ. Proc., § 425.16, subd. (e)(1).)
The analysis of an anti-SLAPP motion involves a two-step
process. (Barry v. State Bar of California, supra, 2 Cal.5th at
p. 321; Baral v. Schnitt, supra, 1 Cal.5th at p. 381.) “‘“First, the
court decides whether the defendant has made a threshold
showing that the challenged cause of action is one ‘arising from’
protected activity. [Citation.] If the court finds such a showing
8
has been made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim.”’
[Citations.] . . . ‘“Only a cause of action that satisfies both prongs
of the anti-SLAPP statute . . . is a SLAPP, subject to being
stricken under the statute.”’” (Barry, at p. 321.)
We review de novo the grant or denial of a special motion to
strike. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067 (Park).) “We exercise independent
judgment in determining whether, based on our own review of
the record, the challenged claims arise from protected activity.
[Citations.] In addition to the pleadings, we may consider
affidavits concerning the facts upon which liability is based.
[Citations.] We do not, however, weigh the evidence, but accept
the plaintiff’s submissions as true and consider only whether any
contrary evidence from the defendant establishes its entitlement
to prevail as a matter of law.” (Ibid.)
B. Towner Met His Burden To Show the County Defendants’
Alleged Conduct Underlying His Third and Fifth Causes of
Action Was Illegal as a Matter of Law
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park, supra,
2 Cal.5th at p. 1062; accord, City of Cotati v. Cashman (2002)
29 Cal.4th 69, 78.) “‘[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.’” (Park,
at p. 1063.) “Instead, the focus is on determining what ‘the
defendant’s activity [is] that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech
or petitioning.’ [Citation.] ‘The only means specified in [Code of
9
Civil Procedure] section 425.16 by which a moving defendant can
satisfy the [“arising from”] requirement is to demonstrate that
the defendant’s conduct by which [the] plaintiff claims to have
been injured falls within one of the four categories described in
subdivision (e) . . . .’ [Citation.] In short, in ruling on an anti-
SLAPP motion, courts should consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Ibid.,
italics omitted.)
The County defendants argue the conduct giving rise to
Towner’s POBRA and section 832.7 claims—the public disclosure
of Towner’s confidential personnel records—arose from protected
activity in furtherance of the right of petition because the filings
constituted written statements made before a judicial proceeding
authorized by law, pursuant to Code of Civil Procedure
section 425.16, subdivision (e)(1). “‘“Any act”’ under [Code of
Civil Procedure] section 425.16, subdivision (b)(1) ‘includes
communicative conduct such as the filing, funding, and
prosecution of a civil action.’” (Optional Capital, Inc. v. Akin
Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113;
accord, Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [“‘Any
act’” under the statute includes “qualifying acts committed by
attorneys in representing clients in litigation”].)
Towner does not dispute that the filing of written
documents in a judicial proceeding generally falls within the
protection of the anti-SLAPP statute, but he contends Code of
Civil Procedure section 425.16 does not apply to his claims
because the County defendants’ public disclosure of his
confidential personnel records was illegal as a matter of law
under Flatley, supra, 39 Cal.4th 299. Towner is correct.
10
In Flatley, the plaintiff alleged causes of action for civil
extortion, intentional infliction of emotional distress, and
wrongful interference with economic advantage against an
attorney who threatened to publicize a rape allegation against
the plaintiff if he did not pay a multimillion-dollar settlement.
(Flatley, supra, 39 Cal.4th at pp. 307-309.) The Supreme Court
affirmed the denial of the attorney’s special motion to strike
under the first prong, holding, “[W]here a defendant brings a
motion to strike under [Code of Civil Procedure] section 425.16
based on a claim that the plaintiff’s action arises from activity by
the defendant in furtherance of the defendant’s exercise of
protected speech or petition rights, but either the defendant
concedes, or the evidence conclusively establishes, that the
assertedly protected speech or petition activity was illegal as a
matter of law, the defendant is precluded from using the anti-
SLAPP statute to strike the plaintiff’s action. In reaching this
conclusion, we emphasize that the question of whether the
defendant’s underlying conduct was illegal as a matter of law is
preliminary, and unrelated to the second prong question of
whether the plaintiff has demonstrated a probability of
prevailing, and the showing required to establish conduct illegal
as a matter of law—either through defendant’s concession or by
uncontroverted and conclusive evidence—is not the same showing
as the plaintiff’s second prong showing of probability of
prevailing.” (Flatley, at p. 320; accord, Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 286-287 [“[O]nce the
defendant has made the required threshold showing that the
challenged action arises from assertedly protected activity, the
plaintiff may counter by demonstrating that the underlying
action was illegal as a matter of law because either the defendant
11
concedes the illegality of the assertedly protected activity or the
illegality is conclusively established by the evidence presented in
connection with the motion to strike.”].)
The Courts of Appeal analyzing the Supreme Court’s
decision in Flatley have found the use of the phrase “illegal” in
Flatley was intended to mean criminal, not merely a violation of a
statute. (See Collier v. Harris (2015) 240 Cal.App.4th 41, 57 [“A
defendant who violates Business and Professions Code section
17525 is not guilty of a crime and therefore the anti-SLAPP
statute would apply even if [defendant]’s conduct violated that
statute.”]; Mendoza v. ADP Screening & Selection Services,
Inc. (2010) 182 Cal.App.4th 1644, 1654 [defendant’s alleged
violations of § 290.46, subd. (l), which prohibits certain uses of
information disclosed on Megan’s Law sex offender website, did
not fall within the Flatley exception because the statute did not
provide a violation was a misdemeanor or felony, but rather
“expressly prescribes civil remedies—including actual and
exemplary damages, and a civil penalty—for a violation of its
provisions”].) As the Mendoza court explained, “[A] plaintiff’s
complaint always alleges a defendant engaged in illegal conduct
in that it violated some common law standard of conduct or
statutory prohibition, giving rise to liability, and we decline to
give plaintiffs a tool for avoiding the application of the anti-
SLAPP statute merely by showing any statutory violation.”
(Mendoza, at p. 1654.)
Towner contends the County defendants violated section
832.7 by publicly disclosing his confidential personnel records
without submitting the documents to the statutorily prescribed
judicial review. “In relevant part, section 832.7, subdivision (a),
provides that certain ‘[p]eace officer or custodial officer’ records
12
and ‘information obtained from these records, [] are confidential
and shall not be disclosed in any criminal or civil proceeding
except by discovery pursuant to Sections 1043 and 1046 of the
Evidence Code.’” (Copley Press, Inc. v. Superior Court (2006) 39
Cal.4th 1272, 1283 (Copley).) The statute applies to “personnel
records” (§ 832.7, subd. (a)), defined to include “any file
maintained under [an officer’s] name by his or her employing
agency and containing records relating to . . . [¶] . . . [e]mployee
advancement, appraisal, or discipline.” (§ 832.8, subd. (a)(4).)
The County defendants do not dispute that they failed to comply
with section 832.7 and Evidence Code section 1043.6
Although section 832.7 provides a comprehensive and
detailed scheme for the disclosure of confidential law enforcement
personnel records, it does not make a violation a crime. However,
as Towner contends, the County defendants’ failure to comply
with section 832.7 was illegal as a matter of law under
Government Code section 1222, which makes a public officer’s
“willful omission to perform any duty enjoined by law” a
misdemeanor. We agree with Towner that the County
defendants’ failure (omission) to treat Towner’s personnel
documents as confidential was willful, in that the County
defendants acted on purpose with the intent the records be filed
publicly in the writ proceeding. (See § 7(1) [“The word ‘willfully,’
when applied to the intent with which an act is done or omitted,
implies simply a purpose or willingness to commit the act, or
make the omission referred to. It does not require any intent to
6 Evidence Code section 1043 provides that a party seeking
disclosure of peace officer personnel records must file a written
motion showing good cause for the disclosure. (Id., subds. (a),
(b)(3).)
13
violate law, or to injure another, or to acquire any advantage.”];
In re V.V. (2011) 51 Cal.4th 1020, 1027 [“‘“[T]he terms ‘willful’ or
‘willfully,’ when applied in a penal statute, require only that the
illegal act or omission occur ‘intentionally,’ without regard to
motive or ignorance of the act’s prohibited character.”’”]; Boags v.
Municipal Court (1987) 197 Cal.App.3d 65, 71 [“Section 1222
defines a general intent statute, hence it criminalizes simply a
willing intentional omission to perform a duty.”].)7
Our conclusion is consistent with the Attorney General’s
opinion “[t]he disclosure of peace officer personnel records in
violation of Penal Code section 832.7 may constitute a crime
under the terms of Government Code section 1222 if the
conditions of the latter statute are met.” (82 Ops.Cal.Atty.Gen.
246 (1999).) The opinion explains “the disclosure must be proved
to be ‘willful’ to come within the terms of [Government Code
section 1222], among other requirements.” (Ibid.) Although we
are not bound by the Attorney General’s interpretation of a
statute, “ ‘[a]bsent controlling authority, [the Attorney General’s
opinion] is persuasive because we presume that the Legislature
was cognizant of the Attorney General’s construction of [the
statute] and would have taken corrective action if it disagreed
with that construction.’ ” (Ennabe v. Manosa (2014) 58 Cal.4th
7 The Court of Appeal in Boags concluded Government Code
section 1222 was unconstitutional as applied to judicial officers
while engaged in the performance of their judicial functions
because it violated the separation of powers doctrine. (Boags v.
Municipal Court, supra, 197 Cal.App.3d at p. 71.) The court
granted the petition of a sitting judge to restrain prosecution of
criminal charges against him based on his refusal to disqualify
himself from a pending matter. (Id. at pp. 67-68.)
14
697, 717, fn. 14; accord, Lexin v. Superior Court (2010) 47 Cal.4th
1050, 1087, fn. 17 [“Attorney General opinions are entitled to
considerable weight.”]; Riverside County Sheriff's Dept. v.
Zigman (2008) 169 Cal.App.4th 763, 771 [“The opinions of the
Attorney General are not binding on this court, of course, but
they are entitled to ‘great respect.’”].)
The County defendants do not argue their failure to follow
the requirements of section 832.7 was not willful, nor do they
argue Government Code section 1222 does not apply to omissions
under section 832.7. Instead, the County defendants contend
they were not required to comply with section 832.7 before
publicly disclosing Towner’s personnel files in the writ
proceeding, pointing to language in section 832.7, subdivision (a),
that the “section shall not apply to investigations or proceedings
concerning the conduct of peace officers or custodial officers, or an
agency or department that employs those officers, conducted by a
grand jury, a district attorney’s office, or the Attorney General’s
office.” The County defendants argue their conduct fell within
this exception because the writ proceeding was a part of VCDA’s
investigation of Towner’s conduct. The County defendants read
the statutory exception too broadly.
The Court of Appeal in Fagan v. Superior Court (2003)
111 Cal.App.4th 607 (Fagan) rejected the same argument made
by the County defendants here. There, two police officers
charged with felony assault and battery filed a motion for
protective order to prevent the district attorney from disclosing
urinalysis test results obtained from the officers’ confidential
personnel files. (Id. at p. 610.) The Court of Appeal concluded
the district attorney had properly obtained the test results under
the “limited exception” for investigations and proceedings
15
involving officer conduct under section 832.7, subdivision (a).
(Fagan, at pp. 615, 618-619.) However, the district attorney
could not publicly disclose the test results without first obtaining
judicial review under Evidence Code section 1043. (Fagan, at
p. 619.)
The Fagan court rejected the People’s argument “the
exception in section 832.7, subdivision (a) applies to both its
confidentiality provision and its limitation on disclosure so that
when the district attorney investigates or prosecutes police officer
or police agency misconduct, he not only has unfettered access to
confidential police personnel files, but there are no constraints on
his use or disclosure of any information obtained from those
files.” (Fagan, supra, 111 Cal.App.4th at p. 617.) The court
reasoned such an interpretation would “lead[] to the absurd
consequence that the protections specified in that section are
completely lost for all information in any peace officer’s personnel
file (§ 832.8) perused by the district attorney in the course of an
investigation, regardless of whether that information is
ultimately admissible or relevant to a subsequent criminal or
civil action. Moreover, this loss of confidentiality would
occur with no notice to the officers involved, and they would have
no recourse.” (Fagan, at p. 617.) The court concluded, “The
exception contained in section 832.7 affords the district attorney
the ability to review confidential peace officer personnel files
when investigating police misconduct without notice to the
individuals involved. At the same time, it requires the district
attorney to maintain the nonpublic nature of the files absent
16
judicial review of the relevance of the information to a criminal or
civil action.” (Fagan, at p. 618.)8
We agree with the Fagan court’s analysis and reject the
County defendants’ reliance on the limited exception in section
832.7, subdivision (a).9 Thus, Towner has carried his burden to
show the alleged conduct of the County defendants underlying
his third and fifth causes of action was illegal as a matter of law
under Flatley because it constituted a willful omission to perform
a public duty enjoined by law (Gov. Code, § 1222), and was
therefore not protected activity under the anti-SLAPP statute.
8 At oral argument, defense counsel sought to distinguish
Fagan as involving the conduct of off-duty peace officers, but the
Fagan court concluded section 832.7 applied to the officers’
personnel files regardless of whether the conduct for which they
were disciplined occurred while they were off duty. (See Fagan,
supra, 111 Cal.App.4th at p. 615 [“Although they were offduty,
petitioners were nonetheless police officers and under a duty to
protect the public.”].)
9 Because we conclude the County defendants did not make a
threshold showing under the first prong of the anti-SLAPP
statute that Towner’s third and fifth causes of action arose from
protected activity, we do not reach the County defendants’
arguments under the second prong that Towner failed to show a
probability of success because (1) there is no private right of
action under section 832.7 or POBRA; (2) the County defendants’
conduct was protected by the litigation privilege under Civil Code
section 47, subdivision (b); (3) Totten’s and Schwartz’s conduct
was privileged under Government Code section 820.2; and (4)
POBRA does not authorize any claim against Zappia.
17
DISPOSITION
The order granting the special motion to strike under Code
of Civil Procedure section 425.16 is reversed. The cause is
remanded to the trial court with directions to enter an order
denying the motion. Towner is to recover his costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
18