Smith v. Williams-Sonoma CA2/2 ( 2021 )

Filed 10/1/21 Smith v. Williams-Sonoma CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
KELLIE SMITH, B305144
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
19STCV36093)
v.
WILLIAMS-SONOMA, INC., et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of Los
Angeles County, Terry A. Green, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Orrick, Herrington & Sutcliffe, Frank N. Zalom, Lynne C.
Hermle and Julia C. Riechert for Defendants and Appellants.
Doumanian & Associates, Nancy P. Doumanian; The Arkin
Law Firm and Sharon J. Arkin for Plaintiff and Respondent.
_____________________________________
Respondent Kellie Smith sued appellant Williams-Sonoma,
Inc. (WSI) alleging workplace misconduct. WSI moved to strike
the complaint as a strategic lawsuit against public participation
(SLAPP). (Code Civ. Proc., § 425.16; Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1007, fn. 1 (Bonni).)1 An anti-
SLAPP motion is “a procedure for weeding out, at an early stage,
meritless claims” that chill First Amendment rights. (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
On de novo review, we conclude that Smith cannot assert
claims arising from WSI’s (1) protected right to report employee
theft to police and (2) preparatory investigation before calling
police. However, claims of workplace misconduct under the Fair
Employment and Housing Act (FEHA), wrongful termination in
violation of public policy, and emotional distress do not arise from
WSI’s protected conduct in investigating and reporting theft to
police and do not fall within section 425.16.
FACTS AND PROCEDURAL HISTORY
Smith’s Complaint
WSI hired Smith in 2005. She began as an associate,
became a coordinator, and was promoted to assistant store
manager in 2010. She voluntarily left WSI in 2011. When she
later returned to WSI’s employ, she was not given a managerial
position. She alleges that WSI has a poor attitude toward female
employees and is reluctant to promote them.
In 2012, Smith secured a lead position in inventory control
at WSI’s distribution center. By 2018, she was the lead person in
charge of customer returns. Though she supervised 30
1Undesignated statutory references are to the Code of Civil
Procedure. Codefendant WSI managers Christopher Cuyler,
Wesley Hashimoto, and Efren Sierra also appeal.
2
employees, Smith claims she had “no real management duties
when compared to her male counterparts.” She believes men are
paid more and criticized less than woman employees at WSI. She
asserts that WSI created a hostile environment, placing women
in entry level positions at undesirable stores, not promoting them
as quickly as men, and treating them without respect.
Smith alleges that she complained of violations of law and
company policy, specifically about maltreatment of herself and
other women. As a result of her complaints, WSI subjected her to
adverse employment actions, including criticism, discipline,
demotions, denial of salary or bonuses, and termination.
WSI terminated Smith’s employment on June 14, 2018. It
accused her of theft, fraud, dishonesty, and violation of company
policy. She denies wrongdoing and alleges that WSI did not give
her or other women the opportunity to defend themselves. Male
employees who engaged in fraud, theft, and dishonesty were not
punished as harshly as their female colleagues.
WSI “initiated the filing of criminal charges and a criminal
prosecution” by making a police report. Smith had to hire an
attorney and suffered emotional distress by becoming the target
of a criminal investigation. Though prosecutors did not press
charges against her, the incident damaged her reputation and
ability to find work.
Smith’s complaint asserts 13 causes of action. This
includes six alleged violations of FEHA; wrongful discharge in
violation of public policy; defamation; emotional distress;
malicious prosecution; and abuse of process.
Appellants’ Motion to Strike
WSI’s motion detailed the circumstances leading to Smith’s
termination. In April 2018, WSI’s accounting department noticed
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that returned merchandise designated for resale was “scrapped.”
WSI investigated why saleable goods were scrapped.
Operations manager Luz Villanueva declared that WSI has
a system to process returns, including furniture and home
accessories. Returned goods are inspected and assigned a
designation. A “retail” designation means an item will be sent to
a retail store or used to fulfill an online order. “Outlet” items are
sent to outlet stores for resale. Some items are repaired and
resold; some are sold to a liquidator. Valueless items unsuitable
for resale are designated “donation” or “scrapped.”
WSI has a charitable program to donate scrapped goods to
Habitat for Humanity (Habitat). WSI employees load items
designated for donation into trailers; Habitat then hauls the
trailers from WSI. Saleable goods are not donated to Habitat.
WSI discovered that Smith was responsible for scrapping
saleable goods on April 7, 2018. Documentation showed that four
trailers of goods worth hundreds of thousands of dollars were
designated “outlet.” Smith manually changed the designation to
“scrapped,” making the goods worthless. When confronted, Smith
claimed appellants Sierra and Cuyler walked by her that day; she
asked to send the trailers to Habitat and they agreed. Smith also
blamed Hashimoto for allowing her to scrap the trailers. The
three managers denied authorizing Smith to scrap saleable
goods.
WSI’s charitable program was run by inventory manager
Keith Wong. WSI’s investigation revealed that Wong paid a
Habitat driver to take trailers bound for Habitat to Wong’s home.
Loss prevention manager Torri Piper, a former federal
agent, conducted her investigation with an eye toward criminal
prosecution or civil litigation. She discovered that Wong diverted
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goods designated for sale at WSI outlets. He wrote the names of
WSI associates on merchandise so they could buy it cheaply at a
Habitat thrift store. Trailers scrapped by Smith on April 7 went
to Wong. Wong and 12 other WSI employees were involved in
this scheme.
As a result of the investigation, WSI’s director of human
resources (HR), Kecia Bailey, terminated 13 male and female
employees. Smith was terminated for improperly scrapping
saleable merchandise, causing WSI to lose over $100,000.
Bailey declared that WSI employees must adhere to polices
requiring respect and equality and prohibiting harassment,
discrimination, and retaliation, as described in the employee
handbook. Bailey is available to hear concerns and investigates
complaints about policy violations. WSI’s business records
contain no complaints from Smith of harassment, discrimination
or retaliation, nor did she disclose unlawful conduct or activities.
No records show she was denied promotions.
Luz Villanueva was Smith’s direct supervisor. They
interacted regularly yet Smith never complained of harassment,
discrimination, or retaliation. Had Villanueva observed
misconduct, she would have intervened and reported it to HR.
The WSI managers named in Smith’s complaint denied
that they harassed or discriminated against her, or observed any
misconduct against her, or heard her complain of harassment,
discrimination, or retaliation. They had little interaction with
her and did not direct her to scrap goods designated for sale in
WSI outlet stores.
Piper presented her findings to the Los Angeles County
Sheriff’s Department. Based on Smith’s conduct in scrapping
trailers diverted to Wong and refusal to cooperate with law
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enforcement, a detective arrested Smith. Criminal charges were
brought against Wong. Smith was not prosecuted.
Smith Dismisses Four Claims
After receiving WSI’s motion to strike, Smith dismissed,
without prejudice, her causes of action for defamation, malicious
prosecution, and abuse of process.
Smith’s Opposition
Smith asserted that WSI’s motion became moot when she
dismissed claims arising from WSI’s report to law enforcement.
She contended that the remaining claims do not arise from
protected activity. They relate to FEHA violations, wrongful
termination in violation of public policy, and emotional distress.
She argued that the “theft incident on the job is but an ancillary
component of [her] work experience” at WSI and “the gravamen
of the complaint” is gender discrimination, harassment, and
retaliation.
Attached to Smith’s opposition is her claim to the state
Department of Fair Employment and Housing on May 30, 2019.
The claim states that WSI took adverse action on June 14, 2018,
by terminating her based on “ancestry, sex/gender,” for
complaining about violations of rules, policies, procedures, and
law, and due to harassment, discrimination, and retaliation.
Smith declares that she was arrested for grand theft in
July 2019. She was not prosecuted but the arrest affects her
work opportunities. She states on information and belief that—
relative to male employees—female employees are not promoted
or equally paid; female employees were criticized more harshly,
looked down upon, spoken to in a negative and derogatory way,
made to feel weak, helpless, and valueless, and not treated with
respect and dignity. Smith’s male coworkers were not subject to
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the same level of scrutiny during WSI’s theft and fraud
investigation, and Smith believes she is the only female who was
terminated.
Appellants’ Reply
Appellants observed that Smith concedes that four of her
claims fall within the anti-SLAPP statute. They argued that her
remaining claims are similarly premised on WSI’s protected
activity of reporting suspected fraud and theft. Moreover, Smith
did not carry her evidentiary burden of proving a probability of
prevailing with admissible evidence. She did not recite facts
showing she was harassed, or that WSI discriminated or
retaliated against her.
The Trial Court’s Ruling
At the hearing on WSI’s motion to strike, the court stated
that WSI’s report to the police was protected activity; however, it
concluded that the anti-SLAPP statute does not apply to Smith’s
claims of discrimination or wrongful termination. The court
acknowledged that she did not allege facts about harassment,
gender discrimination, or bias.
The court granted WSI’s motion in part, striking Smith’s
causes of action for defamation, abuse of process, and malicious
prosecution. It ordered Smith to file an amended pleading
removing allegations relating to WSI’s report to law enforcement.
The court denied WSI’s motion as to Smith’s FEHA claims,
wrongful discharge, retaliation, and emotional distress, finding
they did not arise from protected activity.
WSI and the individual defendants appealed. Smith did
not cross-appeal the order striking four of her claims.
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DISCUSSION
1. Appeal and Review
Appeal lies from an order granting or denying an anti-
SLAPP motion. (§ 425.16, subd. (i).) Review is de novo. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis).)
We independently review the record to determine if challenged
claims arise from protected activity. (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1067 (Park).)
The anti-SLAPP statute is “construed broadly.” (§ 425.16,
subd. (a); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th
728, 735.) We examine “the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based.” (§ 425.16, subd. (b)(2).) “The court does not
weigh evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff's evidence
as true, and evaluates the defendant’s showing only to determine
if it defeats the plaintiff’s claim as a matter of law.” (Baral,
supra, 1 Cal.5th at pp. 384–385.)
2. Forfeited Claims
Smith did not cross-appeal the ruling striking her claims
for defamation, malicious prosecution, and abuse of process. The
court found that WSI’s report to law enforcement is protected
activity. (See, e.g., Siam v. Kizilbash (2005) 130 Cal.App.4th
1563, 1569–1570 [defendant’s report to police that plaintiff
abused children falls within § 425.16]; Chabak v. Monroy (2007)
154 Cal.App.4th 1502, 1511–1512 [defendant’s report to police
that a therapist touched her inappropriately was protected
activity, though no criminal charges were filed].) By failing to
8
appeal, Smith forfeited her right to argue that claims arising
from WSI’s report to the sheriff were improperly stricken.
3. Two-Step SLAPP Analysis
A plaintiff cannot maintain a cause of action arising from
any act in furtherance of the constitutional right of petition or
speech in connection with a public issue. (§ 425.16, subd. (b)(1);
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 67.) The statute applies to any statement made in a
legislative, executive, judicial or other official proceeding and
“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 matter of public
interest. (§ 425.16, subd. (e).) The weeding out process is
deployed if a complaint alleges both protected and unprotected
activity. Offending allegations arising from protected activity
must be stricken. (Baral, supra, 1 Cal.5th at pp. 393–396.)
Our analysis requires two steps. The defendant has the
initial burden of showing that a claim is based on protected
activity. Once this showing is made, the second step shifts the
burden to the plaintiff to demonstrate a probability of prevailing
on the claim. We determine whether the plaintiff’s showing is
legally sufficient and factually substantiated, so as to sustain a
favorable judgment if accepted by a trier of fact. “If not, the claim
is stricken.” (Baral, supra, 1 Cal.5th at p. 396.)
a. WSI’s Initial Burden of Showing that Smith’s Claims
Arise From Protected Activity
Our focus at the initial stage “is not on the form of the
plaintiff’s cause of action but, rather, the defendant’s activity that
gives rise to his or her asserted liability—and whether that
activity constitutes protected speech or petitioning.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 92; Baral, supra, 1 Cal.5th at p. 393
9
[statute is “designed to shield a defendant’s constitutionally
protected conduct from the undue burden of frivolous litigation”].)
The defendant must make a threshold showing that its acts were
in furtherance of its rights of petition or free speech in connection
with a public issue. The illegitimacy of the protected conduct
“must be resolved as part of a plaintiff’s secondary burden to
show the action has ‘minimal merit.’ ” (Flatley v. Mauro (2006)
39 Cal.4th 299, 314, 319–320.)
1. Claims Arising From WSI’s Investigation and Report of
Employee Criminal Activity
By voluntarily dismissing four of her claims and failing to
appeal the court’s ruling against her, Smith has conceded that
some of her claims—relating to WSI’s report to law enforcement
—arose from protected petitioning activity. The court correctly
found that “the report to the Sheriff’s department, and all
allegations of police activity, are protected activity.”
We part ways with the trial court with respect to WSI’s
investigation of a theft ring among employees to prepare a report
to give to the sheriff. The court deemed the “investigation before
they reported to the police” to be unprotected activity under
section 425.16. We disagree.
An investigation designed to bring illegal activity to the
attention of government officials is protected activity.
“ ‘[C]ommunications preparatory to or in anticipation of the
bringing of an action or other official proceeding are . . .
statements . . . entitled to the benefits of section 425.16.’ ”
(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1115 [defendant’s counseling of a tenant regarding her
landlord’s conduct “apparently was in anticipation of litigation”];
Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 710–711
[defendant’s alleged conspiracy to fabricate child abuse evidence
10
was protected activity in advance of making a report to a child
protective agency].)
Section 425.16 shelters communications among private
individuals in advance of a proposed government complaint if the
intent is to expose wrongdoing. In Dove Audio, Inc. v. Rosenfeld,
Meyer & Susman (1996) 47 Cal.App.4th 777 (Dove), a law firm
wrote to a group of celebrities regarding its suspicion that Dove, a
music publisher, wrongfully withheld money from charities the
celebrities had designated as beneficiaries of a recording they
made. The law firm intended to petition the Attorney General to
investigate Dove. (Id. at pp. 779–780.)
Division Four of this district concluded that the letter was
protected in two ways. First, by the litigation privilege, which
applies to “communications preliminary to a proposed judicial
proceeding.” (Dove, supra, 47 Cal.App.4th at pp. 781–783.)
Second, by the anti-SLAPP statute. Though the letter was not
made in a legislative, executive, or judicial proceeding or in
connection with a matter under official consideration, it raised a
matter of public interest and contemplated a government
complaint, implicating the right to petition. (Id. at pp. 783–785.)
WSI investigated its property loss with the intent to pursue
litigation or prosecution. Its report resulted in criminal
prosecution. The investigation was itself in furtherance of the
right of petition. (§ 425.16, subd. (b)(1).) The sheriff questioned
Smith and found probable cause to arrest her, though WSI did
not accuse her of theft. WSI’s conduct is protected: It was
designed to prompt action by the sheriff and district attorney. An
employer enjoys protection when rooting out defalcation by
employees for purposes of making a police report.
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2. Claims Relating to Gender Discrimination
Smith’s complaint alleges numerous FEHA violations. She
claims WSI rarely promotes female employees; paid men more
than similarly situated females; created a hostile environment for
female employees; criticized female employees more harshly;
spoke to females in a derogatory tone and distained them; and
made females feel undervalued and disrespected. Due to her
gender, Smith was allegedly subjected to a hostile environment,
harassment, and discrimination at WSI.
Smith’s reports of violations of law and company policy
resulted in adverse employment actions such as discipline or
reprimands, nonpayment of salary or bonuses, demotions,
placement in undesirable assignments, and so on. Smith’s claims
of disparate treatment, hostile environment, and retaliation are
not underlain by facts showing the dates, places, or people
involved in the alleged FEHA violations. Nonetheless, they are
not “extraneous” “trivial” “passing references” as WSI argues.
As weak as Smith’s FEHA claims are in her complaint,
they survive an anti-SLAPP motion.2 (Bonni, supra, 11 Cal.5th
2 Smith’s ability to survive an anti-SLAPP motion does not
preclude appellants from demurring to an amended complaint or
from seeking summary judgment. Among other things, she must
adequately allege—and eventually produce evidence of—
pervasive or severe harassment. (Aguilar v. Avis Rent A Car
System, Inc. (1999) 21 Cal.4th 121, 130–131; Hughes v. Pair
(2009) 46 Cal.4th 1035, 1042–1044 [there is no recovery for
harassment that is occasional, sporadic, or trivial]; Ramirez v.
Wong (2010) 188 Cal.App.4th 1480, 1488 [complaint dismissed
that listed “only one instance” of harassment and made
conclusory allegations]; Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 614 [sustaining demurrers to FEHA
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at p. 1012 [“to the extent any acts are unprotected, the claims
based on those acts will survive”]; Verceles v. Los Angeles Unified
School Dist. (2021) 63 Cal.App.5th 776, 785–788.) They stand
apart from WSI’s report to law enforcement of criminal activity.
It is not protected conduct to engage in discriminatory,
harassing, or retaliatory practices in the workplace. (Park,
supra, 2 Cal.5th 1057 [anti-SLAPP statute did not apply to a
professor’s discrimination claim]; Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 891 [only in a “relatively unusual case”
can a defendant accused of retaliation or discrimination meet its
first-step burden of showing that its challenged actions qualify as
protected activity].) An employee may maintain a FEHA lawsuit,
despite an anti-SLAPP motion, not because discrimination was
carried out by means of speech, but because “the defendant
denied the plaintiff a benefit, or subjected the plaintiff to a
burden, on account of a discriminatory or retaliatory
consideration.” (Park, at p. 1066.)
Smith’s discrimination, whistleblower, or retaliation claims
do not involve protected activity. In asserting FEHA claims—and
emotional distress and wrongful termination arising from the
alleged violation of her civil rights—Smith has not chilled WSI’s
speech or petitioning rights. These claims do not meet the first
prong of section 425.16.
WSI agrees that Smith’s complaint “wove in cursory,
nonspecific allegations of unprotected activity.” It nonetheless
insists that all of Smith’s claims are barred because her FEHA
claims incorporate by reference allegations of protected activity
asserted elsewhere in the complaint. For example, they
sexual harassment and retaliation causes of action because the
complaint did not allege pervasive conduct].)
13
incorporate paragraph 14 of the complaint, which alleges that
WSI wrongfully “initiated the filing of criminal charges” by
reporting a theft ring to the sheriff.
Smith’s lawsuit is not doomed by the presence of offending
claims among other allegations that are unrelated to protected
conduct. To the extent her complaint contains allegations arising
from WSI’s protected conduct, such as uncovering and reporting
an employee theft ring to law enforcement, those allegations
must be stricken from the pleading. (Baral, supra, 1 Cal.5th at
pp. 394–396 [within a cause of action containing both protected
and unprotected conduct, offending unmeritorious allegations
must be stricken].) As the trial court ordered, Smith must “file
an amended complaint which removes the offending allegations
and causes of action.”
b. Probability of Prevailing on the Merits
A plaintiff must demonstrate a probability of prevailing on
her claims to defeat the motion to strike. This requires a showing
that “ ‘the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.’ ”
(Oasis, supra, 51 Cal.4th at p. 820; Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821.) “The prima facie showing
of merit must be made with evidence that is admissible at trial.
[Citation.] Unverified allegations in the pleadings or averments
made on information and belief cannot make the showing.”
(Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289; Contreras v.
Dowling (2016) 5 Cal.App.5th 394, 405.)
1. WSI’s Investigation to Report Criminal Activity
As discussed above, WSI’s report of employee theft was
protected activity in anticipation of initiating a government
14
inquiry. The burden shifts to Smith to show a probability of
prevailing on her claims regarding WSI’s investigative report. If
she cannot demonstrate a probability of prevailing on her claim,
the court must strike it.
Smith did not demonstrate a probability of prevailing. She
makes no showing that WSI’s investigation was undertaken in
bad faith nor does she deny that it resulted in prosecution. The
law protecting privileged communications made in government
proceedings or in the initiation of such proceedings applies here.
(Civ. Code, § 47, subd. (b).)
An employer’s statements to police “concern[ing] the details
of [his] investigation and his request that the police conduct
further investigation into his suspicions of [an employee’s]
criminal activity” are absolutely privileged. (Williams v. Taylor
(1982) 129 Cal.App.3d 745, 753.) “[A] communication concerning
possible wrongdoing, made to an official governmental agency
such as a local police department, and which communication is
designed to prompt action by that entity, is as much a part of an
‘official proceeding’ as a communication made after an official
investigation has commenced” because public policy encourages
open communication between citizens and public authorities. (Id.
at pp. 753–754.) “The privilege must extend to actions based on
negligent investigation, for if it did not, the privilege for reports
to the police would be eviscerated.” (Devis v. Bank of America
(1998) 65 Cal.App.4th 1002, 1008–1009; Hagberg v. California
Federal Bank (2004) 32 Cal.4th 350, 368 [bank customer wrongly
detained, handcuffed and searched by police cannot sue for the
misbegotten investigation that led to the bank’s 911 call].)
Piper spoke to WSI employees while investigating the
suspicious loss of four trailers of saleable merchandise and gave
15
the sheriff her report, including witness statements. The report
led to arrests and prosecution. (Kerner v. Superior Court (2012)
206 Cal.App.4th 84, 121–122 [defendant’s conduct in hiring
private investigators to encourage the city attorney to prosecute
the plaintiff is protected by the official proceeding privilege].) By
compiling information to give to the sheriff, WSI furthered “the
important public policy of encouraging the reporting of suspected
crimes by ordinary citizens.” (Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal.3d 863, 872, fn. 5.)
As a matter of law, Smith cannot prevail because
investigating and reporting a suspected crime is absolutely
privileged. (Hagberg v. California Federal Bank, supra, 32
Cal.4th at p. 368 [communications “made in preparation for or to
prompt investigation” are privileged]; Kenne v. Stennis (2014) 230
Cal.App.4th 953, 971–972.) Smith must extirpate from her
pleading allegations regarding appellants’ investigation in
preparation for contacting the sheriff.3
2. Smith’s FEHA Claims
We do not reach the issue of whether Smith is likely to
prevail on her claims arising from alleged violations of FEHA
(gender-based hostile environment, discrimination, harassment,
and retaliation), wrongful termination in violation of public
3For example, paragraph 14 of the complaint alleges that
WSI “encouraged and initiated the filing of criminal charges and
a criminal prosecution of the plaintiff without a scintilla of
evidence of any criminal or wrongful acts by the plaintiff during
her employment. As a result of the employer’s unfounded
accusations, the plaintiff became the subject of criminal
prosecution initiated by the filing of a false police report by the
employer and its management when there was no evidence of any
wrongdoing whatsoever on the part of the plaintiff.”
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policy, whistleblower and emotional distress claims. To the
extent that these claims arise from gender-based misconduct (not
from WSI’s investigation of criminal activity and report to law
enforcement), they do not arise from protected activity. They are
not subject to a motion to strike under section 425.16, disposing
of the need to address whether Smith will prevail on her claims.
(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80–81.)
DISPOSITION
We affirm the court’s order striking Smith’s eighth, ninth,
twelfth, and thirteenth causes of action and ordering her to
remove from the complaint all references to appellants’ report to
law enforcement. We affirm the court’s order denying appellants’
motion to strike Smith’s first, second, third, fourth, fifth, sixth,
seventh, tenth, and eleventh causes of action.
We reverse the portion of the court’s order denying
appellants’ motion to strike from the complaint claims arising
from appellants’ privileged conduct in investigating employee
theft for the purpose of reporting it to law enforcement and
prompting official action on criminal activity.
The case is remanded to the trial court for further
proceedings consistent with this opinion. This includes the filing
of an amended complaint (a) removing references to theft or fraud
investigations and reports and (b) alleging facts sufficient to give
appellants notice of incidents of gender-based discrimination,
harassment, hostile environment, whistleblowing, and wrongful
termination in violation of public policy.
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The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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