Blue v. Cal. Office of the Inspector General ( 2018 )

Filed 5/10/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
BRYAN BLUE et al.,
Plaintiffs and Respondents, C083175
v. (Super. Ct. No.
34201500187126CUCRGDS)
CALIFORNIA OFFICE OF THE INSPECTOR
GENERAL et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Sacramento County,
Raymond M. Cadei, Judge. Reversed in part.
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD and David W. Tyra for
California Office of the Inspector General and Robert A. Barton; Office of the Inspector
General, James C. Spurling and Shaun R. Spillane for Defendants and Appellants.
California Correctional Peace Officers Association, Daniel M. Lindsay, Phillip
Murray and Justin C. Delacruz for Plaintiffs and Respondents.
This appeal challenges the trial court’s partial denial of a special motion to strike
pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute,1 directed
1 Undesignated statutory references are to the Code of Civil Procedure. SLAPP is
an acronym for “strategic lawsuit against public participation.”
1
at causes of action arising out of the manner in which defendants, the Office of the
Inspector General (OIG) and Robert A. Barton, in his capacity as Inspector General,
conducted interviews with five correctional officers who previously worked at High
Desert State Prison. The interviews were conducted as part of an investigation into that
institution’s “practices . . . with respect to (1) excessive use of force against inmates,
(2) internal reviews of incidents involving the excessive use of force against inmates,
and (3) protection of inmates from assault and harm by others.” As relevant to this
appeal, these individual correctional officers and the California Correctional Peace
Officers Association (CCPOA) alleged in their first and second causes of action that
defendants violated Penal Code section 6126.5 and Government Code section 3300 et
seq. (the Public Safety Officers Procedural Bill of Rights or the Act) by refusing the
officers’ requests to be represented during the interviews. The trial court denied the anti-
SLAPP motion as to these causes of action, concluding (1) defendants carried their
threshold burden of demonstrating the gravamen of these causes of action arose from
protected activity, but (2) plaintiffs established a probability of prevailing on the merits of
these claims.2
We agree defendants carried their burden on the threshold issue, but conclude
plaintiffs failed to establish a probability of prevailing on the merits of these causes of
action. We therefore reverse the portion of the trial court’s order denying the anti-
SLAPP motion with respect to the first and second causes of action and remand the
2 The trial court granted defendants’ anti-SLAPP motion with respect to plaintiffs’
third and fourth causes of action alleging violations of Penal Code sections 6127.3 and
6127.4, governing the Inspector General’s issuance and enforcement of subpoenas,
concluding plaintiffs were unable to establish a probability of prevailing on the merits of
these causes of action. We mention these causes of action no further.
2
matter to the trial court with directions to enter a new order granting the motion in its
entirety and dismissing the complaint.
BACKGROUND
Oversight Authority of the OIG
The Legislature created the OIG to oversee the Department of Corrections and
Rehabilitation (CDCR). (Pen. Code, § 6125 et seq.) Penal Code section 6126 provides
in relevant part:
“(a) The Inspector General shall be responsible for contemporaneous oversight of
internal affairs investigations and the disciplinary process of the [CDCR], pursuant to
Section 6133 under policies to be developed by the Inspector General.
“(b) When requested by the Governor, the Senate Committee on Rules, or the
Speaker of the Assembly, the Inspector General shall review policies, practices, and
procedures of the department. The Inspector General, under policies developed by the
Inspector General, may recommend that the Governor, the Senate Committee on Rules,
or the Speaker of the Assembly request a review of a specific departmental policy,
practice, or procedure that raises a significant correctional issue relevant to the
effectiveness of the department. When exigent circumstances of unsafe or life
threatening situations arise involving inmates, wards, parolees, or staff, the Inspector
General may, by whatever means is most expeditious, notify the Governor, Senate
Committee on Rules, or the Speaker of the Assembly.
“(c)(1) Upon completion of a review, the Inspector General shall prepare a
complete written report, which shall be held as confidential and disclosed in confidence,
along with all underlying materials the Inspector General deems appropriate, to the
requesting entity in subdivision (b) and the appropriate law enforcement agency.
3
“(2) The Inspector General shall also prepare a public report. When necessary, the
public report shall differ from the complete written report in the respect that the Inspector
General shall have the discretion to redact or otherwise protect the names of individuals,
specific locations, or other facts that, if not redacted, might hinder prosecution related to
the review, or where disclosure of the information is otherwise prohibited by law, and to
decline to produce any of the underlying materials. Copies of public reports shall be
posted on the [OIG]’s Internet Web site.” (Pen. Code, § 6126, subds. (a)-(c).)
As explained by Inspector General Barton in his declaration in support of the anti-
SLAPP motion, the OIG initially possessed the authority to conduct “criminal and
administrative investigations into allegations of CDCR employee misconduct.” The
Legislature removed this authority effective June 30, 2011 (compare Stats. 2009, ch. 35,
§ 14 with Stats. 2011, ch. 36, § 36), except in two circumstances: (1) “Upon receiving a
complaint of retaliation from an employee against a member of management at the
[CDCR], the Inspector General shall commence an inquiry into the complaint and
conduct a formal investigation where a legally cognizable cause of action is presented”
(Pen. Code, § 6129, subd. (b)(1)); and (2) “The [OIG] shall investigate reports of the
mishandling of incidents of sexual abuse, while maintaining the confidentiality of the
victims of sexual abuse, if requested by the victim” (Pen. Code, § 2641, subd. (e)).
Outside these specific contexts, not applicable in this case, the OIG “has no authority to
open investigations into CDCR employees.” That authority belongs to CDCR’s Office of
Internal Affairs (OIA), with the OIG providing public oversight pursuant to Penal Code
section 6133.3 (Pen. Code, § 6126, subd. (a).)
3 This section provides in full: “(a) The [OIG] shall be responsible for
contemporaneous public oversight of the [CDCR] investigations conducted by the [OIA].
To facilitate oversight, the [OIG] shall have staff physically colocated with the [OIA],
4
Review of High Desert State Prison
On June 25, 2015, in accordance with Penal Code section 6126, subdivision (b),
set forth above, the Senate Rules Committee issued a letter to the inspector general
authorizing the OIG “to review the practices at High Desert State Prison . . . with respect
to (1) excessive use of force against inmates, (2) internal reviews of incidents involving
the excessive use of force against inmates, and (3) protection of inmates from assault and
harm by others.” The letter requested the inspector general to provide the Committee
with “a written report detailing the results of [the] review” and also requested the
inspector general “consult with, and recommend appropriate actions to, [OIA] regarding
[the] review.” As the letter explained, the Committee authorized the review because of
various allegations “rais[ing] concern about whether some members of [High Desert
within a reasonable timeframe and without any undue delays. The [OIG] shall also be
responsible for advising the public regarding the adequacy of each investigation, and
whether discipline of the subject of the investigation is warranted. [OIG] shall have
discretion to provide public oversight of other [CDCR] personnel investigations as
needed. [¶] (b)(1) The [OIG] shall issue regular reports, no less than annually, to the
Governor and the Legislature summarizing its recommendations concerning its oversight
of the [CDCR] allegations of internal misconduct and use of force. The [OIG] shall also
issue regular reports, no less than semiannually, summarizing its oversight of [OIA]
investigations pursuant to subdivision (a). The reports shall include, but not be limited
to, all of the following: [¶] (A) Data on the number, type, and disposition of complaints
made against correctional officers and staff. [¶] (B) A synopsis of each matter reviewed
by the [OIG]. [¶] (C) An assessment of the quality of the investigation, the
appropriateness of any disciplinary charges, the [OIG’s] recommendations regarding the
disposition in the case and when founded, the level of discipline afforded, and the degree
to which the agency’s authorities agreed with the [OIG] recommendations regarding
disposition and level of discipline. [¶] (D) The report of any settlement and whether the
[OIG] concurred with the settlement. [¶] (E) The extent to which any discipline was
modified after imposition. [¶] (2) The reports shall be in a form that does not identify the
agency employees involved in the alleged misconduct. [¶] (3) The reports shall be posted
on the Inspector General’s Internet Web site and otherwise made available to the public
upon their release to the Governor and the Legislature.” (Pen. Code, § 6133.)
5
State Prison] staff are engaged in a pattern or practice of using inappropriate and
excessive force against inmates and whether there is adequate protection of inmates from
harm at the prison.” After providing a description of four such allegations, including one
alleging “a mobility-impaired inmate” was “assaulted by staff, and consequently required
outside medical treatment, for refusing to remove and relinquish footwear worn to assist
with his medical condition,” the letter continued: “In addition to the specific incidents
noted above, there have been general allegations asserted that some members of custodial
staff refer to inmates as ‘sodomites’ or sex offenders in the presence of other inmates and
disclosed inmates’ commitment offenses to others[,] actions which would place inmates
at risk of harm from other inmates.”
Upon receiving this letter, Inspector General Barton met with Chief Deputy
Inspector General Roy Wesley and other subordinates to plan the review to be undertaken
by the OIG. As both Barton and Wesley explained in their declarations, neither
considered the Senate’s request to call for investigation of specific allegations of
employee misconduct, nor would the OIG have statutory authority to conduct such an
investigation had that been requested. Both considered the request to call for a broader
inquiry into policies and practices in place at High Desert State Prison and “overall staff
culture and attitudes” at the prison. Because the latter “could not be gleaned from a
review of CDCR’s records,” they decided to interview former High Desert State Prison
staff. As Wesley explained: “We believed current [High Desert State Prison] employees
would be reluctant to speak openly with OIG staff out of fear that they would be
subjected to retaliation for cooperating with the review. We were also aware that the
[OIA] was conducting investigations at [High Desert State Prison] and did not want to
interview employees who could be interviewed as potential witnesses in those
investigations.” Wesley directed a subordinate to identify former employees at the
6
prison, particularly those who worked in the prison’s “ ‘B’ Facility, as this is where the
majority of the sex offenders and inmates with disabilities were housed.”
Thereafter, between June 2015 and December 2015, OIG’s Special Assistant
Inspectors General (SAIG) “monitored approximately 19 investigations of [High Desert
State Prison] staff that were being conducted by the [OIA]” while the office’s Deputy
Inspectors General “performed all other work in connection with the review of [the
prison], which included reviewing CDCR policies, [High Desert State Prison] policies,
use-of-force incident reports, inmate complaints, inmate appeals, court documents, and
various other CDCR records.” The Deputy Inspectors General (DIG) also conducted
interviews with former inmates at the prison and former staff members who had
transferred to another CDCR prison or were no longer state employees. As Chief Deputy
Inspector General Wesley explained: “Because the SAIGs were familiar with the
allegations involved in the active OIA investigations they were monitoring and because
OIG’s review was not intended to uncover staff misconduct, I did not want the SAIGs to
conduct any employee or inmate interviews. On the other hand, because the DIGs would
not have any knowledge pertaining to these active investigations, I assigned them the task
of performing these interviews.” Inspector General Barton also spoke to the secretary of
CDCR and informed him the former High Desert State Prison employees to be
interviewed were not considered “subjects of an investigation” and “would not be asked
questions about ongoing investigations.”
Both Inspector General Barton and Chief Deputy Inspector General Wesley
considered the former staff member interviews to be confidential. (See Pen. Code, §
6126.5, subd. (d) [“Inspector General may require any employee of the [CDCR] to be
interviewed on a confidential basis”]; id., § 6126.4 [“misdemeanor for the Inspector
General or any employee or former employee of the Inspector General to divulge or make
7
known in any manner not expressly permitted by law to any person not employed by the
Inspector General any particulars of any record, document, or information the disclosure
of which is restricted by law from release to the public”].) Indeed, the OIG denied a
request from an OIA senior special agent for copies of the former staff member
interviews.
At the conclusion of the review, on December 16, 2015, the OIG issued a report
summarizing its review of High Desert State Prison and making policy recommendations.
As Inspector General Barton explained: “The information the OIG obtained during its
interviews of staff and inmates served as the basis for the OIG to make the policy
recommendations on page 55 of its report that CDCR provide staff with sensitivity
training, mindfulness and wellness programs, and programs to recognize and address
implicit bias; diversify the workforce at [High Desert State Prison]; increase inmate
programming at [the prison]; and take steps to prevent staff from serving in high stress
assignments for extended periods of time. [Citation.] The report does not contain a
single statement indicating any of the plaintiffs had engaged in or were suspected of
engaging in misconduct. The report does not include any of the plaintiffs’ names or
identify a single person interviewed during the course of the review.” Our review of the
report confirms these statements to be accurate.
Plaintiffs’ Lawsuit
This lawsuit arises from the manner in which five former High Desert State Prison
employees were interviewed in connection with the OIG review described above. More
specifically, these employees (Bryan Blue, Jason Hastey, Steven Oschner, Arthur Tovar,
and James McCloughan), who still worked for CDCR but at other correctional facilities,
and the CCPOA alleged in two causes of action that the OIG and Inspector General
Barton violated Penal Code section 6126.5 and the Public Safety Officers Procedural Bill
8
of Rights by refusing each employee’s request to be represented during the interviews.
We decline to set forth the circumstances of the interviews in any detail. For our
purposes, it will suffice to note that each employee requested representation during the
interview and the DIG who conducted each interview denied the request and informed
the employee he was not under investigation and nothing said would be used to pursue an
investigation or recommend an investigation be opened.
Anti-SLAPP Motion
Defendants filed an anti-SLAPP motion arguing plaintiffs’ causes of action arose
from protected activity under the anti-SLAPP statute because they challenged defendants’
communicative conduct, i.e., denial of plaintiffs’ requests for representation, “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” (§ 425.16, subd.
(e)(2)), i.e., the Senate-directed review of practices at High Desert State Prison.
Defendants also argued plaintiffs’ causes of action arose from protected activity because
the challenged conduct amounted to “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” (id., subd. (e)(4)). This is so, argued
defendants, because publication of a report on an issue of public interest, such as OIG’s
review of practices related to claims of prisoner abuse at High Desert State Prison, are
protected by the constitutional rights of petition and free speech, and “the actions the OIG
took during its review all qualify as conduct taken in furtherance of publishing [that]
report.” (Italics added.)
With respect to the second stage of the anti-SLAPP analysis, defendants argued
plaintiffs could not demonstrate a probability of prevailing on the merits because the right
to representation under the Act applies to a confidential interview the OIG conducts with
9
a CDCR employee only if “it appears that the facts of the case could lead to punitive
action” (Pen. Code, § 6126.5, subd. (d)) and the employee “is under investigation and
subjected to interrogation . . . that could lead to punitive action” (Gov. Code, § 3303).
Here, argued defendants, none of the plaintiff employees were under investigation, “the
OIG’s interviews were confidential and were not for the purposes of addressing
disciplinary action,” and the interviews did not cover “matters likely to result in punitive
action.”
Plaintiffs opposed the anti-SLAPP motion, arguing defendants failed to carry their
threshold burden of demonstrating plaintiffs’ causes of action arose from protected
activity. Plaintiffs argued defendants’ statements denying the requests for representation
were not “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” (§ 425.16, subd. (e)(2)) because denying such representation “had no bearing on the
issues being considered in OIG’s [r]eview of [High Desert State Prison].” Nor did
denying such requests amount to “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” (id., subd. (e)(4)), argued plaintiffs, because
defendants “were statutorily required to perform the Senate-directed review of [High
Desert State Prison]” and therefore plaintiffs’ lawsuit will not “have the ‘chilling effect’
[on the rights of petition or free speech] the anti-SLAPP statute was designed to protect
against.”
Plaintiffs further argued they possessed a reasonable probability of prevailing on
the merits of their causes of action because the appropriate standard for determining
whether representation must be allowed under the Act is “whether the employee [being
interviewed] has a reasonable basis for believing that answers to the questions could form
10
the basis of disciplinary action” and the individual correctional officer plaintiffs had such
a reasonable belief.
Trial Court Ruling
The trial court denied the anti-SLAPP motion with respect to plaintiffs’ causes of
action under Penal Code section 6126.5, subdivision (d), and the Act. As previously
mentioned, the trial court concluded (1) defendants carried their threshold burden of
demonstrating the gravamen of the causes of action arose from protected activity, but
(2) plaintiffs established a probability of prevailing on the merits of these claims. With
respect to the threshold issue, the trial court disagreed with defendants’ argument that the
causes of action challenged any written or oral statement made in connection with an
issue under consideration or review in an official proceeding within the meaning of
section 425.16, subdivision (e)(2), explaining the claims are “based on the [inspector
general’s] act of denying representation,” not on the communication of that denial to the
individual correctional officer plaintiffs. However, the trial court agreed the gravamen of
the causes of action arose from other conduct in furtherance of the exercise of the
constitutional rights of petition or free speech in connection with a public issue or issue
of public interest within the meaning of subdivision (e)(4) because, while defendants are
not a media outlet publishing a news report on an issue of public interest, “the California
Supreme Court acknowledged that ‘governmental entities are entitled to invoke the
protections of section 425.16 when such entities are sued on the basis of statements or
activities engaged in by the public entity or its public officials in their official capacity.’
(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17.)”
Finally, concluding plaintiffs carried their burden of demonstrating a probability
of prevailing on the merits, the trial court explained: “Plaintiffs need not show that
punitive action will likely occur, but that the action may lead to adverse consequences.
11
Plaintiffs have shown that the questions asked at the interviews may lead to punitive
action for failure to report misconduct.” In support of this conclusion, the trial court cited
paragraph 10 of Arthur Tovar’s declaration, in which he states: “Some of the questions
caused me some small concern because they involved potential misconduct that I may or
may not have observed while a correctional officer at High Desert State Prison.
Although I answered truthfully that I did not observe any of the misconduct [the
interviewing DIG] asked about, it occurred to me that if I had in fact witnessed such
misconduct, I could potentially be implicating myself for misconduct for failure to report
the misconduct.” The trial court added: “[T]he [inspector general’s report] identified
several allegations of misconduct [and] urged [High Desert State Prison] and OIA to take
action. The fact that the requests to investigate the specific allegations of misconduct all
occurred prior to the Plaintiffs’ interviews and that Plaintiffs may not have known of the
requests is of no import. The evidence demonstrates that interviews conducted by the
[OIG] as part of the review could lead, and did lead to investigations of some officers.”4
DISCUSSION
I
The Anti-SLAPP Statute
Section 425.16 provides in relevant part: “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
4 As we explain more fully in the discussion portion of the opinion, the record
does not support the conclusion the OIG interviews led to OIA investigations of any
officers.
12
will prevail on the claim.” (§ 425.16, subd. (b)(1).) “[I]n applying the statute a court
generally is required 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. . . . If the court finds such a showing has been made, it then
determines whether the plaintiff has demonstrated a probability of prevailing on the
claim.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 712, overruled on another
point as stated in Burrill v. Nair (2013) 217 Cal.App.4th 357, 380.) “ ‘The defendant has
the burden on the first issue, the threshold issue; the plaintiff has the burden on the
second issue. [Citation.]’ [Citation.]” (Kajima Engineering & Construction, Inc. v. City
of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
We review the trial court’s ruling de novo. (Flatley v. Mauro (2006) 39 Cal.4th
299, 325.) “ ‘We consider “the pleadings, and supporting and opposing affidavits upon
which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither
“weigh credibility [nor] compare the weight of the evidence. Rather, . . . [we] accept as
true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by the plaintiff as a matter of
law.” [Citation.]’ [Citation.]” (Flatley v. Mauro at p. 326.)
II
The Threshold Issue
While defendants OIG and Inspector General Barton, the appellants in this
appeal, prevailed on the threshold issue below, we begin with this issue because, as
the individual correctional officer plaintiffs and CCPOA correctly point out, we may
affirm the trial court’s denial of the anti-SLAPP motion regardless of their likelihood
of prevailing on the merits if we conclude defendants failed to carry their burden of
13
showing the causes of action arose from protected activity. We conclude defendants
have carried that burden.
Only those causes of action “arising from any act . . . in furtherance of the . . .
right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue” are “subject to a special motion to strike”
under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) “[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.] ‘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, 78-79, italics omitted.)
Section 425.16, subdivision (e), provides: “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.”
14
Interpreting this subdivision, our Supreme Court has explained: “Clauses (3) and
(4) . . . concerning statements made in public fora and ‘other conduct’ implicating speech
or petition rights, include an express ‘issue of public interest’ limitation; clauses (1) and
(2), concerning statements made before or in connection with issues under review by
official proceedings, contain no such limitation. In light of this variation in phraseology,
it must be presumed the Legislature intended different ‘issue’ requirements to apply to
anti-SLAPP motions brought under clauses (3) and (4) of subdivision (e) than to motions
brought under clauses (1) and (2).” (Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1117.) Thus, subdivision (b)’s reference to “exercise of First
Amendment rights ‘in connection with a public issue’ ” was not “meant to function as a
separate proof requirement applicable to motions brought under all four clauses of
subdivision (e) . . . .” (Id. at pp. 1117-1118.) Instead, “if a communication falls within
either of the ‘official proceeding’ clauses, the anti-SLAPP statute applies without a
separate showing that a public issue or an issue of public interest is present. [Citations.]
In drafting the statute, the Legislature concluded that authorized official proceedings
necessarily involve a public issue or an issue of public interest.” (Graffiti Protective
Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1217; Briggs, supra,19 Cal.4th at p. 1118 [“Any matter pending before an official proceeding possesses some
measure of ‘public significance’ owing solely to the public nature of the proceeding, and
free discussion of such matters furthers effective exercise of the petition rights section
425.16 was intended to protect”].)
The trial court rejected defendants’ argument that plaintiffs’ causes of action arose
from protected activity within the meaning of clause (2) of section 425.16, subdivision
(e), but concluded the causes of action did arise from protected activity within the
meaning of clause (4) of that subdivision. Defendants argue both clauses are satisfied,
15
while plaintiffs argue defendants satisfied neither. Because we conclude the trial court
correctly determined clause (4) was satisfied, we need not determine whether defendants
also satisfied clause (2).
The gathering of information preparatory to publishing a news report or scholarly
article qualifies as “other conduct in furtherance of the exercise of . . . the constitutional
right of free speech” within the meaning of section 425.16, subdivision (e)(4). This is so
regardless of alleged illegality in the manner that information was gathered. (See, e.g.,
Taus v. Loftus, supra, 40 Cal.4th at p. 713 [the defendants’ investigation into the validity
of a scholarly article preparatory to publishing responsive articles, including an interview
the plaintiff alleged was fraudulently obtained, was “unquestionably . . . conduct in
furtherance of their right of free speech”]; Lieberman v. KCOP Television, Inc. (2003)
110 Cal.App.4th 156, 165 [the defendant’s newsgathering conduct preparatory to the
publishing of a news report, including surreptitious videotape recordings the plaintiff
alleged were illegally obtained, was “conduct in furtherance of the . . . exercise of its
right of free speech,” italics added].)
Here, the OIG was asked by the Senate Rules Committee “to review the
practices at High Desert State Prison . . . with respect to (1) excessive use of force
against inmates, (2) internal reviews of incidents involving the excessive use of force
against inmates, and (3) protection of inmates from assault and harm by others.”
The OIG was also asked to issue “a written report detailing the results of [the] review.”
The request was made pursuant to Penal Code section 6126, subdivision (b).
Subdivision (c)(2) of this section also required the inspector general to “prepare a
public report,” a copy of which “shall be posted on the [OIG’s] Internet Web site.”
(Pen. Code, § 6126, subd. (c)(2).) Defendants interviewed the individual correctional
officer plaintiffs as part of this review of High Desert State Prison. Plaintiffs challenge
16
the manner in which those interviews were conducted. Specifically, they contend
defendants violated their rights under the Act by refusing their requests for
representation. Thus, the causes of action arise from information gathering preparatory
to the publishing of the above-mentioned reports and therefore qualify for protection
under section 425.16, subdivision (e)(4), if the OIG’s review of High Desert State
Prison can be said to be “in connection with a public issue or an issue of public interest.”
We have no difficulty concluding the alleged mistreatment of prisoners at a California
correctional facility qualifies as an issue of public interest.
Nor does it matter the defendants are governmental actors, rather than private
individuals or press organizations. In Vargas v. City of Salinas (2009) 46 Cal.4th 1(Vargas), the plaintiffs, proponents of a local ballot measure, sued the City of Salinas
alleging the City improperly expended public money for certain communications
(published on the City’s Website, in a newsletter, and in a one-page leaflet) relating to the
measure. (Id. at pp. 7, 11-13.) The trial court granted the City’s anti-SLAPP motion;
both the Court of Appeal and our Supreme Court affirmed. (Id. at pp. 9, 14.) With
respect to the threshold issue of whether the plaintiffs’ causes of action arose from
protected activity, our Supreme Court first addressed the plaintiffs’ argument that the
communications did “not constitute ‘protected activity’ within the meaning of the anti-
SLAPP statute” because “the communications . . . are those of a governmental entity
rather than a private individual or organization.” (Id. at p. 16.) The plaintiffs argued the
communications “cannot properly be viewed as ‘acts . . . in furtherance of the person’s
right of petition or free speech under the United States or California Constitution because
. . . government speech, unlike that of a private individual or organization, is not
protected by the First Amendment of the federal Constitution or article I, section 2 of the
California Constitution.” (Id. at pp. 16-17.)
17
Rejecting this argument, the court noted, “a long and uniform line of California
Court of Appeal decisions explicitly holds that governmental entities are entitled to
invoke the protections of section 425.16 when such entities are sued on the basis of
statements or activities engaged in by the public entity or its public officials in their
official capacity[.]” (Vargas, supra, 46 Cal.4th at p. 17, citing Bradbury v. Superior
Court (1996) 49 Cal.App.4th 1108, 1113-1116; Schroeder v. Irvine City Council (2002)
97 Cal.App.4th 174, 183-184; San Ramon Valley Fire Protection Dist. v. Contra Costa
County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 353; Tutor-Saliba
Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609; Santa Barbara County Coalition
Against Automobile Subsidies v. Santa Barbara County Assn. of Governments (2008) 167
Cal.App.4th 1229, 1237-1238; Schaffer v. City and County of San Francisco (2008) 168
Cal.App.4th 992, 1001-1004.) Declining to overrule these decisions, the court held:
“Whether or not the First Amendment of the federal Constitution or article I, section 2 of
the California Constitution directly protects government speech in general or the types of
communications of a municipality that are challenged here—significant constitutional
questions that we need not and do not decide—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.”
(Vargas, supra, 46 Cal.4th at p. 17.)
The court explained that while “plaintiffs’ argument . . . rests on the language
of section 425.16, subdivision (b), which describes the type of cause of action that
is subject to a motion to strike as ‘[a] cause of action . . . arising from any act . . . in
furtherance of the person’s right of petition or free speech under the United States
18
or California Constitution in connection with a public issue[,]’ . . . section 425.16,
subdivision (e) goes on to define this statutory phrase in very broad terms . . . [without]
purport[ing] to draw any distinction between (1) statements by private individuals or
entities that are made in the designated contexts or with respect to the specified
subjects, and (2) statements by governmental entities or public officials acting in
their official capacity that are made in these same contexts or with respect to these
same subjects. Although there may be some ambiguity in the statutory language,
section 425.16, subdivision (e) is most reasonably understood as providing that the
statutory phrase in question includes all such statements, without regard to whether the
statements are made by private individuals or by governmental entities or officials.”
(Vargas, supra, at pp. 17-18.) The court further explained, “to the extent there may
ever have been a question whether the anti-SLAPP protections of section 425.16 may
be invoked by a public entity, that question clearly was laid to rest by the Legislature’s
enactment of . . . section 425.18, subdivision (i), in 2005—well after many of the Court
of Appeal decisions noted above [citations] had expressly recognized the ability of
public entities to bring a motion to strike under the anti-SLAPP statute. Section 425.18,
subdivision (i)—a provision of the 2005 legislation dealing with so-called SLAPPback
actions—expressly recognizes that a ‘SLAPPback’ action may be ‘filed by a public
entity,’ thereby necessarily confirming that a public entity may prevail on a special
motion to strike under section 425.16.” (Id. at p. 18.)
Finally, the court also noted, “the purpose of the anti-SLAPP statute plainly
supports an interpretation that protects statements by governmental entities or public
officials as well as statements by private individuals,” explaining: “In setting forth the
purpose of the statute and the Legislature’s intent guiding its interpretation, section
425.16, subdivision (a) states in relevant part: ‘The Legislature finds and declares that it
19
is in the public interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through abuse of the judicial
process. To this end, this section shall be construed broadly.’ (Italics added.) Moreover,
the legislative history indicates that the Legislature’s concern regarding the potential
chilling effect that abusive lawsuits may have on statements relating to a public issue or a
matter of public interest extended to statements by public officials or employees acting in
their official capacity as well as to statements by private individuals or organizations.”
(Vargas, supra, at pp. 18-19, fn. omitted.)
Here, plaintiffs’ causes of action do not arise out of the publishing of the OIG
report on practices at High Desert State Prison, but rather out of defendants’ information
gathering preparatory to the publishing of that report. However, as we have already
explained, such conduct would “unquestionably [amount to] conduct in furtherance of
their right of free speech” (Taus v. Loftus, supra, 40 Cal.4th at p. 713) “if [engaged in] by
a private individual or entity.” (Vargas, supra, at p. 17.) Thus, the reasoning of Vargas
applies, as does the statutory remedy afforded by section 425.16.
Nevertheless, relying on Anderson v. Geist (2015) 236 Cal.App.4th 79 (Anderson),
plaintiffs argue, “this lawsuit is unlikely to have the effect of chilling [defendants’] public
participation” because “they were statutorily required to perform the Senate-directed
review of [High Desert State Prison].” Anderson is distinguishable. There, the plaintiff
sued two sheriff’s deputies alleging they unlawfully entered her residence while
executing a recalled bench warrant for her daughter’s arrest and made defamatory
statements to her neighbors while doing so. (Id. at p. 82.) Thus, the causes of action
arose out of the deputies’ execution of the warrant. The Court of Appeal held, “at least
under the circumstances of this case,” the execution of such a warrant was not protected
activity under the anti-SLAPP statute. (Ibid.) The court explained: “Execution of an
20
arrest warrant is of course ‘an act in furtherance of a criminal prosecution,’ as defendants
put it. But that does not necessarily make it ‘conduct in furtherance of the exercise of the
constitutional right of petition’ in the meaning of section 425, subdivision (e)(4). At
base, the execution of a warrant is not an exercise of rights by the peace officer; it is the
performance of a mandatory duty, at the direction of the court. [Citation.] Because peace
officers have no discretion in whether or not to execute a warrant issued by the court, it
seems unlikely that a lawsuit asserting claims arising from such activity could have the
chilling effect that motivated the Legislature to adopt the anti-SLAPP statute, or that
extending protections of the anti-SLAPP statute to such activity would serve the statute’s
goals.” (Id. at pp. 86-87.) The court further explained, “to qualify for protection under
section 425.16, subdivision (e)(4), the conduct at issue must be ‘in connection with a
public issue or an issue of public interest’—that is, it must ‘concern[ ] a topic of
widespread public interest and contribute[ ] in some manner to a public discussion of the
topic.’ [Citations.] In their briefing on appeal, defendants fail to make any argument as
to why their execution of a warrant in the circumstances of this case—a routine
misdemeanor warrant in a case that apparently attracted precisely zero public interest or
discussion—might meet this standard, and we find nothing in the record that might
support an argument to that effect.” (Id. at p. 87.)
Here, in contrast to Anderson, supra, 236 Cal.App.4th 79, the OIG’s review of
High Desert State Prison concerned a topic of widespread public interest and the report
issued to the Senate and published on the OIG Website contributes to a public discussion
of the topic. Not only would the publishing of those reports be protected by the state and
federal Constitutions had they been published by a private individual or entity, but the
information gathering preparatory to their publication would also be covered. (Taus v.
Loftus, supra, 40 Cal.4th at p. 713) These causes of action arise out of that information
21
gathering conduct. And because such conduct “would fall within the scope of the statute
if [engaged in] by a private individual or entity” (Vargas, supra, at p. 17), the fact
defendants are instead governmental entities does not strip them of the statute’s
protection. Nor are we persuaded the mandatory duty of the inspector general to
undertake the review of High Desert State Prison upon receipt of the Senate’s request
vitiates the statute’s protection.
Despite the inspector general’s mandatory duty to conduct the review of High
Desert State Prison, were we to hold causes of action arising out of the OIG’s information
gathering during the course of that review are not subject to the anti-SLAPP statute, this
may well inhibit the manner in which such reviews are undertaken. In other words, had
the defendants known they would be required to defend against meritless claims arising
out of their interviews with the individual correctional officer plaintiffs without the
ability to have those claims stricken at an early stage in the proceedings under the anti-
SLAPP statute, it is entirely possible they would have conducted the review without
interviewing those plaintiffs at all, and thereby would have lost valuable information
forming at least part of the basis for a number of the OIG’s recommendations regarding
policy improvements at High Desert State Prison. Simply put, public discussion of this
important issue may well have been chilled.
III
Probability of Prevailing on the Merits
We now explain why plaintiffs have not demonstrated a probability of prevailing
on their causes of action under Penal Code section 6126.5 and the Public Safety Officers
Procedural Bill of Rights.
Penal Code section 6126.5 provides in relevant part: “The Inspector General may
require any employee of [CDCR] to be interviewed on a confidential basis. Any
22
employee requested to be interviewed shall comply and shall have time afforded by the
appointing authority for the purpose of an interview with the Inspector General or his or
her designee. The Inspector General shall have the discretion to redact the name or other
identifying information of any person interviewed from any public report issued by the
Inspector General, where required by law or where the failure to redact the information
may hinder prosecution or an action in a criminal, civil, or administrative proceeding, or
where the Inspector General determines that disclosure of the information is not in the
interests of justice. It is not the purpose of these communications to address disciplinary
action or grievance procedures that may routinely occur. If it appears that the facts of
the case could lead to punitive action, the Inspector General shall be subject to Sections
3303, 3307, 3307.5, 3308, 3309, and subdivisions (a) to (d), inclusive, of Section 3309.5
of the Government Code as if the Inspector General were the employer, except that the
Inspector General shall not be subject to the provisions of any memorandum of
understanding or other agreement entered into between the employing entity and the
employee or the employee’s representative that is in conflict with, or adds to the
requirements of, Sections 3303, 3307, 3307.5, 3308, 3309, and subdivisions (a) to (d),
inclusive, of Section 3309.5 of the Government Code.” (Pen. Code, § 6126.5, subd. (d),
italics added.)
The provisions listed in Penal Code section 6126.5, subdivision (d), to which the
inspector general is subject “[i]f it appears that the facts of the case could lead to punitive
action,” are part of the Public Safety Officers Procedural Bill of Rights. “The Act
requires that law enforcement agencies throughout the state afford minimum procedural
rights to their peace officer employees.” (Pasadena Police Officers Assn. v. City of
Pasadena (1990) 51 Cal.3d 564, 572.) To that end, Government Code section 3303
provides, “[w]hen any public safety officer is under investigation and subjected to
23
interrogation by his or her commanding officer, or any other member of the employing
public safety department, that could lead to punitive action, the interrogation shall be
conducted under the following conditions. For the purpose of this chapter, punitive
action means any action that may lead to dismissal, demotion, suspension, reduction in
salary, written reprimand, or transfer for purposes of punishment.” (Italics added.)
Subdivision (i) of this section provides: “Upon the filing of a formal written statement of
charges, or whenever an interrogation focuses on matters that are likely to result in
punitive action against any public safety officer, that officer, at his or her request, shall
have the right to be represented by a representative of his or her choice who may be
present at all times during the interrogation. The representative shall not be a person
subject to the same investigation. The representative shall not be required to disclose, nor
be subject to any punitive action for refusing to disclose, any information received from
the officer under investigation for noncriminal matters. [¶] This section shall not apply to
any interrogation of a public safety officer in the normal course of duty, counseling,
instruction, or informal verbal admonishment by, or other routine or unplanned contact
with, a supervisor or any other public safety officer, nor shall this section apply to an
investigation concerned solely and directly with alleged criminal activities.” (Gov. Code,
§ 3303, subd. (i), italics added.)
The published decisions addressing the question of whether or not the right to
representation was triggered under the Act do not involve the overlay of Penal Code
section 6126.5 present in this case. However, they are instructive with respect to the
scope of the right to representation set forth in Government Code section 3303. This
section requires the officer invoking the right to representation must be (1) “under
investigation” and (2) “subjected to interrogation . . . that could lead to punitive action”
(Gov. Code, § 3303), i.e., the “interrogation focuses on matters that are likely to result in
24
punitive action against . . . that officer” (id., subd. (i)).5 For example, in Paterson v. City
of Los Angeles (2009) 174 Cal.App.4th 1393, as part of an investigation into suspicions
that a police officer was abusing sick leave, a supervising officer was sent to his home to
conduct a “sick check.” Neither the officer suspected of violating department sick leave
policies nor his wife, also a police officer, was home at the time. The supervising officer
called the suspected officer’s cell phone and spoke to both him and his wife, both of
whom lied during the conversation and were temporarily relieved from duty for making
false statements to a supervisor. The disciplined officers sued the city alleging, among
other causes of action, violation of the Act. (Id. at pp. 1396-1398.) Reversing the trial
court’s grant of summary adjudication in favor of the city as to this cause of action, the
Court of Appeal explained the Act applied because the sick check was conducted as part
of “an investigation of abuse of sick leave” and “it is easy to determine that the sick
check might have led to punitive action, because it did lead to punitive action.” (Id. at
pp. 1401-1402.)
In contrast, Steinert v. City of Covina (2006) 146 Cal.App.4th 458 involved a
situation in which the plaintiff police officer was questioned by her supervisor concerning
her typing the wrong designation while conducting a criminal records search, i.e.,
“TRNG,” indicating training, rather than the applicable crime report number. During that
conversation, when asked whether she had provided any confidential information
5 As quoted fully above, subdivision (i) states, “whenever an interrogation focuses
on matters that are likely to result in punitive action against any public safety officer, that
officer, at his or her request, shall have the right to be represented by a representative of
his or her choice who may be present at all times during the interrogation.” (Gov. Code,
§ 3303, subd. (i), italics added.) Thus, while the subdivision begins by stating the
interrogation must focus on matters likely to result in punitive action against “any public
safety officer,” it is “that officer,” i.e., the one against whom punitive action is likely to
result from the interrogation, who possesses the right to representation.
25
discovered during the records search to the reporting party, the officer said she had not
done so. This was later determined to be a lie and led to her dismissal. (Id. at pp. 460-
461.) The trial court determined the conversation with the supervisor did not trigger the
right to representation under the Act. The Court of Appeal affirmed, concluding
substantial evidence supported that determination. The court explained that neither the
supervisor nor the department’s support services manager believed there was anything
improper about the records search or that the officer had improperly given out
confidential information. The only suspicion at the time of the conversation was the
officer’s improper use of “TRNG” as the search designation, but according to both the
supervisor and the support services manager such “mislabeling was not a substantial rule
violation” that would lead to punitive action, but was rather a “simple training issue.”
(Id. at pp. 462-463.) Thus, the officer was not “under investigation” and “subjected to
interrogation . . . that could lead to punitive action.” (Gov. Code, § 3303.) Instead, the
conversation was the sort of “interrogation of a public safety officer in the normal course
of duty, counseling, instruction, or informal verbal admonishment by, or other routine or
unplanned contact with, a supervisor” (id., subd. (i), that does not trigger the right to
representation under the Act. (Steinert v. City of Covina, supra, 146 Cal.App.4th at
p. 465.)
Here, none of the individual correctional officer plaintiffs who were interviewed in
connection with the OIG’s review of High Desert State Prison were “under investigation”
for anything, let alone something “that could lead to punitive action.” (Gov. Code,
§ 3303.) For this reason alone, assuming their interviews can reasonably be considered
“interrogation” at all, this was not the sort of “interrogation [that] focuses on matters that
are likely to result in punitive action” against the officers being interviewed. (Id.,
subd. (i).) Instead, these officers were interviewed because they previously worked at
26
High Desert State Prison, specifically in the section of the prison that housed the majority
of sex offenders and inmates with disabilities. While the Senate’s letter authorizing the
OIG’s review of the prison recounted a number of allegations of abuse made by these
classes of inmates, as both Inspector General Barton and Chief Deputy Inspector General
Wesley explained in their declarations, neither considered the Senate’s request to call for
investigation of specific allegations of employee misconduct, nor would the OIG have
statutory authority to conduct such an investigation had that been requested. Both
considered the request to call for a broader inquiry into policies and practices in place at
High Desert State Prison and “overall staff culture and attitudes” at the prison.
Moreover, while the OIG was also monitoring 19 active OIA investigations, none of
the plaintiffs were considered “potential witnesses in those investigations.” From this,
it can be inferred that these plaintiffs were also not the subjects of the active
investigations. Additionally, those active investigations were monitored by SAIGs,
whereas plaintiffs were interviewed by DIGs with no knowledge pertaining to the
investigations.
Nor is there any support in the record for the trial court’s conclusion that
plaintiffs’ interviews led to “investigations of some officers.” Indeed, both Inspector
General Barton and Chief Deputy Inspector General Wesley explained in their
declarations that they considered the interviews with plaintiffs to be confidential. In line
with this understanding, the OIG denied a request from an OIA Senior Special Agent for
copies of the interviews. Indeed, the report the OIG ultimately submitted to the Senate
does not “contain a single statement indicating any of the plaintiffs had engaged in or
were suspected of engaging in misconduct” or “include any of the plaintiffs’ names or
identify a single person interviewed during the course of the review.”
27
In short, the individual correctional officer plaintiffs were neither “under
investigation” nor “subjected to interrogation . . . that could lead to punitive action.”
(Gov. Code, § 3303.) Nor does the overlay of Penal Code section 6126.5,
subdivision (d), alter this result. Subdivision (d) confirms the purpose of an inspector
general interview with a CDCR employee is not “to address disciplinary action or
grievance procedures that may routinely occur.” (Pen. Code, § 6126.5, subd. (d).)
Nevertheless, “[i]f it appears that the facts of the case could lead to punitive action, the
Inspector General shall be subject to Section[] 3303 . . . of the Government Code as if the
Inspector General were the employer.” (Ibid., italics added.) For the reasons already
expressed, we conclude it would not have appeared to either the inspector general or to a
reasonable person in plaintiffs’ position that these confidential interviews could have led
to punitive action against plaintiffs, particularly since they were neither under
investigation for any potential misconduct nor questioned as potential witnesses in any
active OIA investigation.
Finally, plaintiffs’ reliance on N.L.R.B. v. J. Weingarten, Inc. (1975) 420 U.S. 251[43 L.Ed.2d 171] (Weingarten) is unpersuasive. There, the United States Supreme Court
held: “The action of an employee in seeking to have the assistance of his [or her] union
representative at a confrontation with his [or her] employer clearly falls within the literal
wording of [section 7 of the National Labor Relations Act] that ‘(e)mployees shall have
the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or
protection.’ [Citation.] This is true even though the employee alone may have an
immediate stake in the outcome; [the employee] seeks ‘aid or protection’ against a
perceived threat to his [or her] employment security. The union representative whose
participation [is sought] is, however, safeguarding not only the particular employee’s
interest, but also the interests of the entire bargaining unit by exercising vigilance to
28
make certain that the employer does not initiate or continue a practice of imposing
punishment unjustly.” (Id. at pp. 260-261.) The court went on to explain: “Requiring a
lone employee to attend an investigatory interview which he [or she] reasonably believes
may result in the imposition of discipline perpetuates the inequality the [National Labor
Relations Act] was designed to eliminate . . . .” (Id. at p. 262.) Noting a number of
appellate decisions have considered Weingarten to be “ ‘persuasive authority’ when
construing [the Public Safety Officers Procedural Bill of Rights]” (Ellins v. City of Sierra
Madre (2016) 244 Cal.App.4th 445, 454-455), plaintiffs argue the appropriate standard is
whether or not they reasonably believed punitive action could result from the interviews
with the OIG, and not whether or not punitive action would actually result therefrom in
light of the inspector general’s subjective intent.
We agree the test is an objective one. In this case, it turns on whether or not a
reasonable person in the plaintiffs’ position, having been informed by the interviewer that
he or she was not under investigation for any potential wrongdoing, would nevertheless
believe he or she was “under investigation” for something “that could lead to punitive
action” (Gov. Code, § 3303), or that “the facts of the case could lead to punitive action”
against him or her. (Pen. Code, § 6126.5, subd. (d).) As we have already explained, a
reasonable person in plaintiffs’ position would not have so believed. Moreover, nothing
in Weingarten erases the requirement that the officer must actually be “under
investigation.” (Gov. Code, § 3303; id., subd. (i).) In that case, the employee in question
was under investigation for stealing food from her employer and therefore had a
reasonable basis to believe an interrogation focusing on that alleged misconduct could
result in the imposition of discipline against her. (Weingarten, supra, at p. 255.) Here,
none of the individual correctional officer plaintiffs were under investigation for any
suspected misconduct. They were so informed. Thus, none of them had a reasonable
29
basis to believe their interviews with the OIG “could lead to punitive action” against
them.
The anti-SLAPP motion should have been granted with respect to the first and
second causes of action.
DISPOSITION
The portion of the trial court’s order denying the anti-SLAPP motion with respect
to the first and second causes of action is reversed and vacated. The trial court is directed
to enter a new order granting the motion in its entirety and dismissing the complaint.
Because defendants should have prevailed on the anti-SLAPP motion, they are entitled to
fees and costs incurred both in the trial court and on appeal, to be determined by the trial
court. (Code Civ. Proc., § 425.16, subd. (c); Anschultz Entertainment Group, Inc. v.
Snepp (2009) 171 Cal.App.4th 598, 643.)
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
HULL, J.
30