Parenti v. Broadmoor Police Protection District CA1/5 ( 2024 )

Filed 9/23/24 Parenti v. Broadmoor Police Protection District CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
DAVID PARENTI et al.,
Plaintiffs and Respondents, A164200
v.
BROADMOOR POLICE (San Mateo County
PROTECTION DISTRICT et al., Super. Ct. No. 21CIV03905)
Defendants and Appellants.
Eleven defendants appeal from separate orders denying their special
motions to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16),1
filed in this retaliation and discrimination lawsuit. The plaintiffs are David
Parenti; Victor Khedr; Syed Husain; and Five Points Tire Imports, Inc.
(Five Points). Parenti, Khedr and Husain are former police officers of
Broadmoor Police Protection District (District), and Five Points is a
corporation that contracted with the District to provide service for the
District’s patrol vehicles. Khedr is also the chief executive officer of
Five Points. The plaintiffs allege multiple causes of action, including
whistleblower retaliation, harassment, and discrimination. The defendants
1 All statutory references are to the Code of Civil Procedure unless
otherwise stated.
1
are the District; five District police officers; four current or former members
of the District’s board of police commissioners; and Michael Connolly, who
was a police commissioner and then the District’s chief of police. The trial
court denied each defendant’s anti-SLAPP motion on the grounds that the
defendants failed to meet their burden to show the plaintiffs’ claims arise out
of protected activity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Parties
A. Defendants
The District is a public entity that employs Broadmoor police officers
and conducts operations as the Broadmoor Police Department. The
governing body of the District is the Broadmoor Board of Police
Commissioners (Board), which consists of three elected commissioners.
Micheal Connolly was a commissioner. On May 28, 2019, Connolly was
appointed chief of police and remained in that position until he resigned on
June 8, 2021.
Defendants Patrick Tobin, Ronald Banta, Peter Nelson, John Duncan,
and Eric Eaton are, or were, District police officers of various ranks. We refer
to them collectively as the officer defendants.
Defendants Sylvia Koh, James Kucharszky, Ralph Hutchens, and
Maria Brizuela are, or were, elected police commissioners. We refer to them
collectively as the commissioner defendants.2
2 Julie Dun was also named as a defendant and alleged to be an
employee of the Department of Justice and the girlfriend of defendant Banta.
She is not a party to the appeal.
2
B. Plaintiffs
David Parenti is the former chief of police for the District. He was
terminated on July 20, 2020, allegedly for protected whistleblower activity.
Victor Khedr and Syed Husain were part-time police officers with the
District. Khedr and Husain were allegedly unlawfully terminated on
September 8, 2021.
Five Points is a corporation that operated a vehicle repair shop which
serviced District vehicles. Khedr is the chief executive officer of Five Points.
C. First Amended Complaint
The first amended complaint (FAC) contains 14 pages of background
facts. We summarize those that appear relevant to plaintiffs’ claims and the
issues on appeal. In November 2015, Connolly was elected to the District’s
Board. In December 2018, the District’s chief of police retired, and the Board
appointed Parenti as District manager and authorized him to find a chief of
police. A month later, the Board appointed Parenti as chief of police.
Connolly, who was chair of the Board at the time, pressured Parenti to
recommend him for the chief of police position.
In March 2019, Connolly reopened an adjourned Board meeting to have
the Board vote for him as chief of police, which was in violation of conflict-of-
interest laws. In May 2019, Connolly was sworn in as chief of police and
Parenti remained District manager. Connolly began to recruit his close
friends as part-time reserve officers, then promoted them to command-level
positions without any selection process.
Plaintiffs observed the new staff, particularly defendants Banta and
Tobin, make derogatory, disparaging, and discriminatory comments
regarding age, race, religion, and gender. When Connolly was told of Banta’s
rhetoric, Connolly stated that was “just Banta’s nature and to look past it.”
3
When Tobin made offensive comments regarding a transgender officer,
Connolly smirked.
District “whistleblowers, including Parenti,”3 observed fiscal
mismanagement under Connolly’s management. Plaintiffs learned that the
District’s auditor may have had concerns about spending discrepancies of
hundreds of thousands of dollars. Parenti attempted to discuss these issues
with Connolly, but Connolly deflected. Parenti also discussed concerns about
finances with defendant Commissioner Kucharszky.
In the spring of 2020, defendant Commissioner Koh became aware of
concerns regarding District spending and low morale. On June 24, 2020,
Parenti met with Commissioner Koh at her request. Parenti advised Koh
that “the numbers did not add up” and that the District was in danger of
insolvency. Parenti urged Commissioner Koh to request the District’s “trial
balance sheet,” which had been withheld from the Board.
On July 1, 2020, Husain sent a public records request to the District,
asking for “financials and other documents relating to the appointment of
Connolly against conflict-of-interest laws.” Husain sent the request
anonymously through an attorney. Connolly and his “command staff”
investigated the origins of the fiscal inquiry. On July 14, 2020, Connolly
interrogated Khedr about the public records request and said he would fire
whomever sent the request. On July 14, 2020, at a closed session of the
public meeting, Parenti was accused of sending the request.
On July 19, 2020, Commissioner Koh told Parenti that Connolly would
meet with him the next day to discuss the District’s finances. Parenti asked
3 At times, the FAC refers to “BPPD whistleblowers” without
identifying them by name. It also often refers to “plaintiffs” without
specifying individual plaintiffs by name.
4
Commissioner Koh if he was being terminated for raising the issue of the
District’s finances with her, and she said no.
However, on July 20, 2020, Connolly terminated Parenti for
insubordination based on the reporting of potential financial discrepancies.
Connolly accused Parenti of sending the public records request.
On July 20, 2020, plaintiffs, fearing retaliation, filed a whistleblower
complaint with the California State Auditor’s Office. On July 21, 2020,
Husain and another, unnamed District officer were interrogated by Connolly.
The officers discussed their concerns about the District’s finances and
operations. Again, Connolly expressed his suspicions of Husain and the other
officer because their concerns were similar to the public records request.
Connolly said the public records request was insubordination and that he
would deal with the “ ‘key players.’ ” Connolly offered Husain and the other
officer promotions in exchange for “making the request disappear.” He also
said, “ ‘[I]f somebody stabs me in the back, I will break their arm and use
that knife in unthinkable ways.’ ” Later, Connolly sent a text message to
Husain and the other officer saying that his statements “ ‘came out wrong’ ”
and that “ ‘there are some . . . who are trying to remove me . . . and I am . . .
sensitive to that.’ ”
On August 10, 2020, Husain filed a complaint with the Fair Political
Practices Commission (FPPC), alleging Connolly violated Government Code
section 1090 by using his elected position as commissioner to appoint himself
police chief. Husain was harassed and retaliated against by the District. On
September 24, 2020, the FPPC sent a letter to Husain, copied to Connolly,
stating it was investigating Husain’s allegations.
5
On October 13, 2020, defendant Tobin stated at a public Board meeting
that the county counsel should allow him to do his job and fire the District’s
whistleblowers. Tobin also took a closefisted swing at Khedr.
On November 13, 2020, defendant Commissioner Koh resigned from
the Board and referred to the growing intensity of the public meetings due to
the whistleblowers’ allegations and grievances.
On February 26, 2021, Tobin ordered Khedr to appear for an
“ ‘administrative inquiry’ ” at 7:30 p.m. that Friday evening. Tobin would not
tell Khedr the purpose. Khedr said he could not attend due to a religious
obligation and because he wanted time to consult with his attorney. Khedr,
who is Jewish and observes Shabbat on Friday evenings, believes the timing
of the meeting was chosen to target him due to his religion. Tobin and
Connolly punished Khedr by placing him on administrative leave that day.
Khedr was ordered to return department property and forced to do so at a
time to publicly humiliate him.
On March 8, 2021, Husain sent a cure or correct complaint to the Board
for violations of the Ralph M. Brown Act (Gov. Code, § 54950 et seq.).4 On
March 9, 2021, Tobin advised Husain he was being placed on administrative
leave. He too was forced to come into the District building to return
department property, which publicly humiliated him. Connolly then sent an
email to the entire police department stating that Husain was on
administrative leave and under investigation.5 During the internal
investigation interview,6 Husain was questioned regarding where he obtained
4 The FAC does not provide any detail regarding the “cure or correct
complaint.”
5 The FAC does not explain the basis for the investigation.
6 The FAC does not state who conducted the interview.
6
documents that were given to the Board and a recording that was given to
the FPPC. The District claimed Husain violated the technology policy by
accessing the documents. Khedr and Husain were placed on administrative
leave for their attempts to exercise their lawful rights.
On June 8, 2021, Connolly resigned from the District because of
anticipated criminal charges for using his position as commissioner to
appoint himself chief of police. The commissioners expressed disappointment
that Connolly was resigning. Commissioner Hutchens stated, “ ‘I think we
have had a big loss here [. . .] over an unintentional mistake that was pushed
outrageously, and I don’t like it.’ ”
On June 17, 2021, the San Mateo District Attorney charged Connolly
with two counts of violation of Government Code section 1090 and one count
of violation of Government Code section 87100.7 The charges were based on
the conduct alleged in Husain’s complaint to the FPPC.
On July 13, 2021, just prior to the start of a public Board meeting,
Commissioner Kucharszky stated to the public, “[T]hese two non-taxpayers
are costing the district money—those two right there,” referring to Khedr and
Husain. Commissioner Hutchens continued targeting Khedr and Husain and
indirectly blaming them for the rising costs to operate the District.
On August 2, 2021, Connolly pleaded nolo contendere to violating
Government Code section 87100 by using his official position to influence a
7 Government Code section 1090 states that public officers or employees
“shall not be financially interested in any contract made by them in their
official capacity, or by any body or board of which they are members.”
Government Code section 87100 prohibits public officials from making,
participating in making, or using their position to influence a governmental
decision in which they have a financial interest.
7
government decision. On September 8, 2021, Banta sent termination notices
to Khedr and Husain.8 The notices were signed by Tobin.
The FAC alleges 15 causes of action. Many of the causes of action are
alleged by all four plaintiffs against all 12 defendants and often contain
general allegations of conduct by “Defendants” without specifying any one
individual. The causes of action asserted by all plaintiffs against all
defendants are: (1) whistleblower retaliation (Lab. Code, § 1102.5; Gov. Code,
§ 53296 et seq.); (2) harassment; (3) hostile work environment; (4) failure to
prevent harassment; (5) violation of the Tom Bane Civil Rights Act
(Civ. Code, § 52.1);9 (6) invasion of privacy; (7) intentional infliction of
emotional distress; and (8) equitable and injunctive relief (Lab. Code,
§§ 1102.61–1102.62; Gov. Code, § 3309.5).
The FAC alleges the following causes of action by all plaintiffs against
the District: (1) retaliation in violation of the California Fair Employment
and Housing Act (Gov. Code, § 12900 et seq.); (2) wrongful termination in
violation of public policy; (3) discrimination; and (4) negligent hiring,
supervision, or retention of an employee. All plaintiffs also allege a cause of
action for declaratory relief against the District and Connolly. Plaintiffs
Husain and Khedr allege a cause of action for recovery of unpaid minimum
8 The FAC states the notices were sent to “Plaintiffs and Khedr.” This
is one of many instances in which the FAC uses imprecise language. The
respondents’ brief states that the September 8, 2021, notices were sent to
Khedr and Husain. Given that plaintiff Parenti was terminated on July 20,
2020, and that Five Points is a corporate entity, we understand the allegation
to refer to Khedr’s and Husain’s terminations.
9 The Tom Bane Civil Rights Act authorizes an individual to sue a
defendant who interferes with or attempts to interfere with the individual’s
constitutional or statutory rights by threats, intimidation, or coercion.
(Civ. Code, § 52.1.)
8
wages against the District. Finally, Five Points alleges breach of contract
against the District.
D. Defendants’ Anti-SLAPP Motions
The defendants filed individual motions under section 425.16 seeking
to strike the majority of the causes of action asserted against them.10 The
trial court denied each of the motions in 11 separate orders. Each order
differs depending on the arguments made by each defendant, but the trial
10 This appeal involves 11 appellants. They are represented by the
same counsel. However, they filed four opening briefs: one on behalf of the
District, one on behalf of Connolly, one on behalf of the officer defendants,
and one on behalf of the commissioner defendants. Each of the opening briefs
includes subheadings for “procedural history” and “challenged causes of
action.” Within these sections, the defendants purport to clarify exactly
which causes of action they challenged below. However, they fail to include
record citations in these sections of their briefs directing this court to their
motions. Particularly in a multi-party case involving appeals from 11
separate motions, defendants’ failure to consistently include record citations
to the arguments made below by each defendant frustrates our ability to
review the issues raised. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Lona v.
Citibank, N.A. (2011) 202 Cal.App.4th 89, 97, fn. 2 [“Each and every
statement in a brief regarding matters that are in the record on appeal,
whether factual or procedural, must be supported by a citation to the record.
This rule applies regardless of where the reference occurs in the
brief”];Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th
278, 290 [“The duty to adhere to appellate procedural rules grows with the
complexity of the record”].) Respondents filed a single respondents’ brief,
which includes a discussion of the procedural background stating that the
defendants’ 11 separate anti-SLAPP motions collectively sought to strike 11
enumerated causes of action. The respondents’ brief provides a block citation
to hundreds of pages of the clerk’s transcript containing the 11 anti-SLAPP
motions, opposition briefs, and reply briefs. Block citations do not comply
with California Rules of Court, rule 8.204(a)(1)(C), and do not assist this
court in evaluating the issues on appeal. (Graham v. Bank of America, N.A.
(2014) 226 Cal.App.4th 594, 611.) We will rely upon the trial court’s
summary of the parties’ arguments contained in the trial court’s 11 orders
denying the anti-SLAPP motions.
9
court found that none of the defendants met their burden under the first
prong of the anti-SLAPP statute to show that the causes of action against
them arise out of protected activity.
DISCUSSION
I. Anti-SLAPP Statutory Framework
Section 425.16 provides: “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or
free speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) The statute is “designed to protect
defendants from meritless lawsuits that might chill the exercise of their
rights to speak and petition on matters of public concern.” (Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 883–884 (Wilson).)
“A court evaluates an anti-SLAPP motion in two steps. ‘Initially, the
moving defendant bears the burden of establishing that the challenged
allegations or claims “aris[e] from” protected activity in which the defendant
has engaged. [Citations.] If the defendant carries its burden, the plaintiff
must then demonstrate its claims have at least “minimal merit.” ’ [Citation.]”
(Wilson, supra, 7 Cal.5th at p. 884.) Both prongs of the anti-SLAPP statute
must be satisfied for a claim to be struck under the statute. (Aguilar v.
Goldstein (2012) 207 Cal.App.4th 1152, 1159.) If a court finds the defendant
has not satisfied the first prong, it must deny the motion and there is no need
to consider the second step. (Ibid.) We review the denial of a special motion
to strike de novo. (Ibid.) However, our de novo review does not relieve
defendants of their duty to present reasoned arguments supporting their
10
position that their anti-SLAPP motions should have been granted. (Allen v.
City of Sacramento (2015) 234 Cal.App.4th 41, 52.)
A “claim arises from protected activity when that activity underlies or
forms the basis for the claim . . . . [T]he 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 section 425.16 by which a moving defendant can
satisfy the [“arising from”] requirement is to demonstrate that the
defendant’s conduct by which plaintiff claims to have been injured falls within
one of the four categories described in subdivision (e) . . . .” ([Citation], italics
added.) 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.” (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–
1063, 1st bracketed insertion added (Park).)
Section 425.16, subdivision (e) defines “ ‘act[s] in furtherance of a
person’s right of petition or free speech . . . in connection with a public issue’ ”
to include: “(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.”
11
We summarize post the trial court’s rulings on the motions of each
group of defendants and evaluate their arguments on appeal.
II. Officer Defendants’ Anti-SLAPP Motions
Officers Nelson, Duncan, Eaton, Banta and Tobin’s joint opening brief
states that they each filed motions arguing that the following causes of action
arise out of protected activity: the first cause of action for whistleblower
retaliation, the fourth cause for harassment, the fifth cause of action for
hostile work environment, the sixth cause of action for failure to prevent
harassment, the eighth cause of action for violation of the Tom Bane Civil
Rights Act, the ninth cause of action for invasion of privacy, the 11th cause of
action for intentional infliction of emotional distress, and the 15th cause of
action for injunctive relief. We summarize the trial court’s rulings on each
motion.
A. Trial Court’s Orders
1. Nelson
The trial court’s order denying Nelson’s motion explains that Nelson
asserted the only allegation against him in the FAC is that he contacted
plaintiffs’ friends as part of an investigation. Specifically, the FAC alleges
that “Defendant Nelson then contacted friends of Plaintiffs under the guise of
official police business to create the nexus for a new investigation despite
having no legitimate jurisdiction.”11 The trial court’s order addressed the fact
that Nelson acknowledged the FAC did not contain any specific allegations by
Parenti and Five Points against him, then found that Nelson failed to
establish that Parenti and Five Points’s claims arise from protected activity.
11 The officer defendants’ opening brief cites to a declaration Nelson
filed in support of his anti-SLAPP motion explaining that he investigated
missing guns and that as part of the investigation he sent written
communications to certain individuals.
12
Regarding the remaining plaintiffs (Husain and Khedr), the trial court found
that Nelson failed to address how the investigation he conducted underlies
each of plaintiffs’ claims and, thus, he did not meet his initial burden under
the anti-SLAPP statute.
2. Banta
The trial court’s order denying Banta’s motion states that Banta moved
to strike all causes of action alleged against him on the grounds that they
arise from allegations that he investigated guns missing from the District
and that he investigated misappropriation of funds donated by an unnamed
District employee. The FAC alleges that after Khedr expressed concerns
about the District’s sale of firearms, “[t]o deflect the potential for the
improper sale of firearms to come back to the [District] command staff, Banta
fabricated a basis for an investigation into ‘ghost’ guns.” Banta also initiated
a separate investigation into misappropriation of funds donated by another
member of the District “close to Plaintiffs.” The FAC further alleges that
Banta told Khedr that search warrants would be executed against Khedr and
that if Khedr and the other plaintiffs “came on their side, withdrew any
inquiry into mismanagement and misconduct, all of this could go away.” The
trial court again found that Banta acknowledged that as to two of the
plaintiffs (Parenti and Five Points), the FAC did not include specific
allegations by them against Banta and the trial court declined to find that
Parenti’s and Five Points’s claims against Banta must necessarily arise out of
the investigations. It further found that Banta failed to address how the
referenced investigations underlie the plaintiffs’ claims and, thus, he failed to
meet his first prong burden to establish that the plaintiffs’ claims arose out of
protected activity.
13
3. Eaton
The trial court’s order quotes the only allegation in the FAC alleging
specific conduct by Eaton, which states: “On or around February 28, 2021,
Husain who was not under any noticed disciplinary action, went to the BPPD
station to qualify with his department firearm. He noticed his ammunition
was switched, posing a safety threat. Further, Husain noticed Defendant
Eaton keeping a watchful eye on him everywhere in the station, including the
locker room. At the same time Eaton was actively text messaging somebody
and immediately hiding his phone after. When Husain advised Eaton, who is
his supervisor, of his discomfort and if there is something Eaton would like to
discuss. [Sic.] Eaton declined. Husain then called Duncan, the next level
supervisor. Both Eaton and Duncan failed to address Husain’s concerns and
oral grievance.” (Boldface omitted.) Eaton submitted a declaration stating
that he observed Husain insert a USB thumb drive into a District computer
and take documents and that he observed Husain photographing documents.
Eaton reported the conduct to Duncan and Connolly. Husain confronted
Eaton about reporting him, and Eaton said he did not want to get involved
with “ ‘what [he] had going on with the District.’ ” The District ultimately
investigated the conduct Eaton reported. The trial court found that even if
Eaton’s alleged conduct constitutes protected activity, Eaton failed to show
that plaintiffs’ causes of action arise out of such activity. Citing Park, supra,2 Cal.5th at page 1060, the trial court found that “Eaton’s blanket and
conclusory assertion that Plaintiffs’ claims arise from his protected activity is
insufficient to satisfy his burden under the anti-SLAPP statute since he fails
to establish any connection between Plaintiffs’ claims and his alleged
conduct.”
14
4. Tobin
The trial court’s order denying Tobin’s motion states that Tobin argued
the claims against him should be struck because they arise from
investigations and comments Tobin made at a Board meeting. The FAC
alleges that Tobin placed Khedr on administrative leave in February 2021
and he placed Husain on administrative leave in March 2021. The FAC also
alleges that on October 13, 2020, at a public Board meeting, Tobin stated that
“the county counsel should allow him to do his job and fire the District’s
whistleblowers” and that Tobin “took a closed fisted [sic] swing at Khedr” at
the same meeting. The trial court again found that Tobin acknowledged that
as to two of the plaintiffs (Parenti and Five Points), the FAC did not include
specific allegations by them against Tobin, and the trial court declined to find
that Parenti’s and Five Points’s claims against Tobin must necessarily arise
out of the allegations regarding Khedr and Husain. It further found that
even assuming the specific allegations referencing Tobin constituted
protected activity, Tobin failed to address what act or acts underlie each of
the plaintiffs’ claims and, thus, he failed to meet his burden to establish that
the challenged causes of action arise from protected activity.
5. Duncan
The trial court’s order denying Duncan’s motion summarizes his
argument that the plaintiffs’ claims arise solely out of the allegations in the
FAC regarding Duncan’s February 28, 2021, interaction with Husain, when
Husain expressed his discomfort regarding Eaton’s watching him and neither
Eaton nor Duncan addressed Husain’s concerns. The order further refers to
Duncan’s declaration stating that Eaton reported to Duncan that he saw
Husain acting “ ‘suspiciously’ ” and photocopying documents, Duncan
reported the conduct to Connolly, and the District investigated Husain.
15
The trial court found that Duncan’s communication with Connolly was
protected activity because it was in anticipation of bringing an internal
investigation of a public employee. However, it further found that the FAC
does not mention Duncan’s communication with Connolly and, thus, Duncan
failed to satisfy prong 1 of the anti-SLAPP analysis based on his
communications with Connolly. The trial court also rejected Duncan’s
argument that his communications with Husain on February 28, 2021, are
protected activity because they were in anticipation of an internal
investigation. The trial court found that the FAC only alleges that Husain
complained to Duncan and Duncan allegedly “ ‘failed to address Husain’s
concerns and oral grievance.’ ” Duncan’s declaration did not mention
communications he had with Husain, and thus the trial court found it was
unable to determine whether Duncan was acting “ ‘in furtherance of [his]
right of petition or free speech . . . in connection with public issue [sic] . . . .”12
The trial court also found that even if the FAC’s allegations referencing
Duncan were protected activity, Duncan failed to establish that those
allegations were the basis for each of the eight challenged causes of action. It
concluded that “Duncan’s blanket and conclusory assertion that Plaintiffs’
claims arise from the allegations against him in paragraph 75 of the FAC is
insufficient to satisfy his burden under the anti-SLAPP statute since he fails
to establish any connection between Plaintiffs’ claims and the allegations at
12 The officer defendants’ opening brief cites to declarations of Duncan,
Tobin, and Connolly, in which they provide “contextual information”
regarding Duncan’s conversation with Husain. The appellate record contains
only redacted copies of the declarations. It is the appellants’ duty to provide
an adequate record for appellate review. (In re Marriage of Wilcox (2004) 124
Cal.App.4th 492, 498.) We base our review on the trial court’s description of
the declarations and the summary of their contents contained in the officer
defendants’ opening brief.
16
issue. (See Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th
1057, 1060 [there must be a ‘nexus . . . between a challenged claim and the
defendant’s protected activity for the claim to be struck’]; [citation].)”
B. Officer defendants fail to establish that the challenged
causes of action arise from protected activity.
The officer defendants argue that the trial court erred by requiring
them to specify “ ‘[h]ow’ ” the plaintiffs’ allegations of protected activity were
the basis for the challenged causes of action. (Boldface omitted.) They claim
that such a requirement goes to the merits of the challenged claims, which is
analyzed at the second step of the anti-SLAPP requirement. According to the
officer defendants, they carried their first prong burden because they
identified allegations of protected activity, which were the only allegations
specifically naming them, and therefore this necessarily means the
challenged causes of action arise from the protected activity. The officer
defendants’ argument is conclusory and incorrect. It glosses over the
“ ‘arising from’ ” requirement of their prong 1 burden. (Park, supra, 2 Cal.5th
at p. 1062.)
Even assuming the allegations the officer defendants highlight13
constitute protected activity, they have not established that the multiple
challenged causes of action against them arise out of the alleged protected
activity, and it is indeed their burden to demonstrate a “nexus” between the
challenged claim and the defendants’ protected activity. (Park, supra,
2 Cal.5th at pp. 1060, 1062–1063.)
13 The officer defendants’ opening brief acknowledges that there are
other allegations referencing certain of them, but they claim the only relevant
allegations for purposes of the anti-SLAPP motions are the portions of the
FAC regarding the internal investigations and comments at meetings. This
further suggests that the officer defendants’ motions provided an incomplete
analysis of the allegations.
17
As explained in Park, a claim does not arise out of protected activity,
“simply because it contests an action or decision that was arrived at following
speech or petitioning activity, or that was thereafter communicated by means
of speech or petitioning activity. Rather a claim may be struck only if the
speech or petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for which liability
is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) Park held that a plaintiff’s
claim that he was denied tenure at a public university due to national origin
discrimination was based on the act of denying tenure and not on the
grievance proceeding or statements made during the university’s evaluation
of him. (Id. at p. 1068.) The fact that the tenure decision was communicated
did not convert the plaintiff’s discrimination suit into a suit arising from
protected speech. The comments of the university dean may be evidence of
animus, but the statements themselves were not the basis for the claim.
(Ibid.)
Park further explained that “ ‘[t]he only means specified in section
425.16 by which a moving defendant can satisfy the [“arising from”]
requirement is to demonstrate that the defendant’s conduct by which 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.” (Park, supra, 2 Cal.5th at p. 1063.)
The officer defendants fail to meet their burden. They provide no
analysis of the elements of each challenged cause of action; nor do they
demonstrate the required nexus between protected activity and the
challenged claims. They have not provided a reasoned analysis to support
18
reversal of the trial court’s orders. (Allen v. City of Sacramento, supra, 234
Cal.App.4th at p. 52 [“We are not required to examine undeveloped claims or
to supply arguments for the litigants”].) Instead, they argue in a summary
fashion that the only specific allegations referencing them are protected
activities and therefore this “necessarily means that Plaintiffs’ causes of
action against [them] arise from those protected activities and shifts the
burden to Plaintiffs to prove a probability of success on the merits . . . .” The
officer defendants cite no authority for this conclusory argument, and we find
it is contrary to Park and insufficient to meet defendants’ prong 1 burden.
Although the officer defendants ignore the elements analysis discussed
in Park—and we will not fill that void—we read the FAC as primarily
alleging that the plaintiffs were retaliated against and subjected to adverse
employment actions, including, ultimately, termination, after they reported
concerns about financial improprieties and misconduct that led to Connolly’s
resignation and his criminal conviction. The fact that they were put on
administrative leave and subject to internal investigations leading up to their
terminations does not appear to be the basis for their retaliation claims.
(Park, supra, 2 Cal.5th at pp. 1060, 1068.) The plaintiffs’ allegation that the
internal investigations were examples of adverse employment actions taken
against them after they reported misconduct does not help defendants. (See
Laker v. Board of Trustees of California State University (2019) 32
Cal.App.5th 745, 776–777 [retaliation claim based on university’s pursuing
allegedly meritless investigations does not arise from any act in furtherance
of university’s right of petition or free speech].)
As Park explains, in evaluating prong 1 of the anti-SLAPP analysis, we
must “respect the distinction between activities that form the basis for a
claim and those that merely lead to the liability-creating activity or provide
19
evidentiary support for the claim.” (Park, supra, 2 Cal.5th at p. 1064.) The
officer defendants’ argument fails to make this distinction and instead asks
us to simply assume that because the FAC includes allegations that they
were involved in internal investigations and made comments at public
meetings that all of the challenged causes of action arise from protected
activity. This we will not do.
The officer defendants include as part of their prong 1 argument that
they, as individual defendants, cannot be liable for retaliation,
discrimination, or adverse employment actions. They assert that such claims
are viable only against the employer. While these arguments may provide a
basis for demurrer, they do nothing to meet the officer defendants’ prong 1
burden under the anti-SLAPP statute.
We agree with the officer defendants that the FAC is vague in many
respects and that at least some of the causes of action may not state a claim
as to at least some of the defendants. However, while some or all of the
challenged causes of action may be subject to demurrer, the officer
defendants have not established that they must be struck under the
anti-SLAPP statute. (See Martin v. Inland Empire Utilities Agency (2011)
198 Cal.App.4th 611, 627–628 [recognizing that defendant may not be able to
meet prong 1 burden when complaint lacks specificity and may not withstand
demurrer; however, anti-SLAPP statute does not provide for skipping
defendant’s first prong burden].)
III. Connolly’s Anti-SLAPP Motion
A. Trial Court Order Denying Connolly’s Anti-SLAPP Motion
The trial court’s order states that Connolly moved to strike the
plaintiffs’ first cause of action for whistleblower retaliation, fourth cause of
action for harassment, fifth cause of action for hostile work environment,
20
sixth cause of action for failure to prevent harassment, eighth cause of action
for violation of the Tom Bane Civil Rights Act, ninth cause of action for
invasion of privacy, 11th cause of action for intentional infliction of emotional
distress, 14th cause of action for declaratory relief, and 15th cause of action
for equitable and injunctive relief. The order explains that Connolly argued
all contested causes of action primarily arise from his directing the District’s
investigations. Specifically, Connolly asserted that he directed Tobin to audit
the District’s finances, which revealed mismanagement by Parenti, and to
investigate Husain’s use of the District’s computer, which resulted in Husain
being placed on administrative leave. Connolly further asserted that he
directed Banta to investigate and audit the District’s armory, which resulted
in Khedr being placed on administrative leave.
The trial court’s order first noted that protected activity under section
425.16 includes statements made in connection with official proceedings
authorized by law and that an internal investigation of a public employee is
an official proceeding. It then rejected Connolly’s argument that any claims
against him asserted by Five Points must necessarily arise out of the internal
investigations directed by Connolly. Connolly acknowledged that there are
no specific allegations by Five Points against Connolly. Thus, the trial court
found that Connolly failed to show that Five Points’s claims “ ‘arise from’ ” an
investigation.
The trial court further found that Connolly failed to meet his burden to
show that the other plaintiffs’ claims “ ‘arise from’ ” protected activity.
Instead, Connolly “simply concludes that all of Plaintiffs’ claims are primarily
based on the investigations” without “address[ing] how these investigations
underlie each of Plaintiffs’ claims.” The order noted that the FAC seems to
lack factual allegations to support the elements of its claims and that the
21
claims confusingly refer to “Plaintiffs” and “Defendants” rather than
specifying which of the four plaintiffs and 12 defendants are involved in each
claim. Although the trial court acknowledged there may be pleading defects
in the FAC, it was “not convinced that the fact that the [FAC] contains
allegations that [Connolly] directed investigations means that all of
Plaintiffs’ claims necessarily arise from these investigations . . . .”
B. Connolly fails to establish that the challenged causes of
action arise from protected activity.
On appeal, Connolly makes similarly imprecise and conclusory
arguments. His opening brief devotes fewer than three pages to his
argument that Husain, Khedr, and Parenti’s claims arise out of protected
activity. He asserts that the relevant allegations against him are that he
placed Khedr and Husain on administrative leave and communicated to
others that they were on leave. He argues that internal investigations are
protected activities and because the plaintiffs reference investigations in the
FAC, and incorporate by reference the FAC’s background factual allegations
into each cause of action, their claims all arise out of protected activity.
Connolly’s argument only specifically mentions allegations involving
investigations of Khedr and Husain but then concludes, without any analysis,
that Parenti’s claims also arise out of protected activity.
Connolly’s statement that internal investigations are protected activity
under the anti-SLAPP statute is overbroad. “[T]he anti-SLAPP statute
protects speech and activity taken in connection with an official proceeding,
but not necessarily the decisions made or actions taken as a result of those
proceedings.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1014
(Bonni).) Connolly argues that the investigation itself is the protected
activity, without specifying what speech or petitioning activity he engaged in
regarding the investigations other than to communicate the decision to place
22
plaintiffs on leave. His argument fails to recognize the distinction, explained
in Park, between adverse decisions and protected speech relating to the
adverse decisions. (Park, supra, 2 Cal.5th at pp. 1062–1063.) Even if we
were to assume the overall internal investigations of plaintiffs are protected
activity, we would still find that Connolly failed to meet his prong 1 burden.
The overriding problem with Connolly’s argument is that he, similarly
to the officer defendants, fails to demonstrate that any of the investigations
referenced in the FAC are the basis for plaintiffs’ claims. He does not
identify the elements of any of the causes of action asserted against him and
explain how the alleged protected activity forms the basis for the plaintiffs’
claims. It is not enough for Connolly to merely reference various mentions of
internal investigations in the FAC. To meet his first prong burden, he must
show that “the speech or petitioning activity itself is the wrong complained of,
and not just evidence of liability or a step leading to some different act for
which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) As explained
in Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621, “a claim
does not ‘arise from’ protected activity simply because it was filed after, or
because of, protected activity, or when protected activity merely provides
evidentiary support or context for the claim.”14 Moreover, “the existence of an
official proceeding does not necessarily transform any claim related to that
14 Connolly relies on Jeffra v. California State Lottery (2019) 39
Cal.App.5th 471 for support for his assertion that the internal investigations
and acts that are “ ‘inextrably tied’ ” to the investigation are protected
conduct under the anti-SLAPP statute. As the court in Verceles v. Los
Angeles Unified School Dist. (2021) 63 Cal.App.5th 776, 787–788, noted,
Jeffra did not identify any written or oral statement made in connection with
the official proceeding that formed the basis of the plaintiff’s claim. (Jeffra,
supra, 39 Cal.App.5th at pp. 482–483.) Thus, Jeffra’s analysis conflicts with
Park. We decline to follow Jeffra.
23
proceeding into an action within the ambit of section 425.16,
subdivision (e)(2). Such an interpretation ignores the plain language of the
statute, which requires a claim be based on a written or oral statement made
in connection with the proceeding.” (Verceles v. Los Angeles Unified School
Dist., supra, 63 Cal.App.5th at p. 787.)
The FAC is far from a model of clarity, and we agree with the trial
court’s comments that it may be subject to demurrer. However, the issue
before us is whether Connolly has demonstrated that the plaintiffs’ claims
arise from protected activity. He has not met his burden to establish that
each of the challenged causes of action alleged against him arise from
protected activity. (Park, supra, 2 Cal.5th at p. 1063; see Bonni, supra, 11
Cal.5th at pp. 1023–1024 [finding defendant failed to meet prong 1 burden
when it did not establish that general allegations of hostile work
environment and failure to protect from retaliation arose from protected
activity].)
Nor has Connolly persuaded us that Five Points’s claims against him
arise out of protected activity. Although the FAC imprecisely asserts
multiple causes of action on behalf of all plaintiffs, which include the
individual plaintiffs and the corporate entity, Five Points, the only specific
references to Five Points in the FAC are where it is identified as a
corporation and in the 12th cause of action for breach of contract against the
District. Connolly states that Five Points cannot prevail on the other causes
of action, which are employment-related claims, but he nonetheless claims
they necessarily arise out of protected activity. We agree with the trial court
that accepting Connolly’s argument regarding Five Points would require that
we read into the FAC conduct by Five Points that is not alleged. This would
24
amount to an improper redrafting of the FAC. (Medical Marijuana, Inc. v.
ProjectCBD.com (2016) 6 Cal.App.5th 602, 621.)
IV. Commissioners’ Motions
Commissioners Kucharszky, Hutchens, Koh and Brizuela’s joint
opening brief states that they each sought to strike the following causes of
action: the first cause of action for whistleblower retaliation, the fourth cause
of action for harassment, the fifth cause of action for hostile work
environment, the sixth cause of action for failure to prevent harassment, the
eighth cause of action for violation of the Tom Bane Civil Rights Act, the
ninth cause of action for invasion of privacy, the 11th cause of action for
intentional infliction of emotional distress, and the 15th cause of action for
injunctive relief. We summarize the trial court’s rulings on each motion.
A. Trial Court’s Orders
1. Hutchens
The trial court’s order states that the only allegations in the FAC
specifically mentioning Hutchens are in paragraphs 82, 85, 86, 89 and 128.
The trial court found that the references in paragraphs 86, 89 and 128 do not
describe protected activity under the anti-SLAPP statute.15 Paragraph 86
refers to Hutchens’s comment prior to a public Board meeting that Khedr and
Husain were “ ‘costing the district money’ . . . .” Paragraphs 89 and 128
allege that all commissioners were motivated to cover up conflict-of-interest
violations and do not reference any speech or petitioning activity.
15 The order appears to misstate that the allegations in these
paragraphs “do describe protected activity,” but the very next sentence states:
“They contain no allegations that Hutchens engaged in enumerated activities
protected under the anti-SLAPP statute.” When read in context, it is clear
that the trial court found the allegations of paragraphs 86, 89 and 128 are not
protected activity.
25
Paragraph 82 alleges that “Defendant Hutchens went as far as to state
on the record, ‘I think we had a big loss here [. . .] over an unintentional
mistake that was pushed outrageously, and I don’t like it.’ Hutchens, the
Treasurer of the Board, negligently managed the funds of the BPPD without
any oversight.” Paragraph 85 alleges, “On or around June 23, 2021,
Hutchens during an open Special Meeting expressed ‘sadness and
heartbreak’ for Connolly having to leave. Despite Connolly’s formal criminal
charges only days prior, Hutchens inquired if something can legally be done
to change the outcome of Connolly’s leave.” The trial court found that the
allegations in paragraphs 82 and 85 appear to have occurred in the context of
public meetings and therefore constitute protected activity under section
425.16, subdivision (e)(1). However, it found that Hutchens failed to
establish any connection between the referenced allegations and any element
of the challenged causes of action, as required under Park. Instead,
Hutchens merely identified the alleged protected activity and then generally
concluded that all of the challenged causes of action arise out of the protected
activity.
2. Koh
The trial court’s order refers to allegations specifically referencing Koh
contained in paragraphs 45, 46, 47, 52, 53, 54, 72, 89, 128 and 130. It found
that only the allegations of paragraph 130 may constitute protected activity.16
16 The trial court found that the remaining allegations referring to Koh
do not appear to constitute protected activity. Those allegations are
paragraphs 45–47, referring to Koh’s learning of concerns regarding District
spending, Parenti’s meeting with Koh and advising her about the District’s
finances, and Koh’s allegedly asking for the “trial balance sheet”;
paragraph 52, alleging that Koh told Connolly that Parenti reported
“information about the discrepancies”; paragraph 53, alleging Koh contacted
Parenti to tell him he would be meeting with Connolly to discuss finances
26
Paragraph 130 alleges, “Upon the resignation of Koh from the Police
Commission in November 2020, she acknowledged the existing grievances of
officers submitted to the Commission. Koh’s resignation dated November 13,
2020, stated ‘[t]here are grievances and anticipated litigations concerning the
district, and I am committed to investigating and addressing them
accordingly. However, as a result of these allegations, the public in-person
meetings have grown more intense and even borderline physical (as seen in
the October public meeting). Frankly, I am uncomfortable with facilitating
these in-person meetings in this type of environment.’ Koh, the Chair of the
Board at the time, had the discretion to maintain order, and to further order
her subordinates, including Connolly, to cease this behavior. She elected not
to and instead resigned, thereby allowing the harassment to continue
unchecked.” The trial court found that although Koh’s resignation letter
could qualify as protected activity, Koh failed to establish any nexus between
the protected activity and any elements of the challenged causes of action, as
required by Park.
3. Kucharszky
The trial court’s order states the only allegations specifically
mentioning Kucharszky are in paragraphs 43, 52, 80, 86 and 89. It found
that the allegations in paragraphs 43, 52 and 89 do not appear to constitute
protected activity.17 Paragraph 80 alleges that Kucharszky made statements
and assured Parenti he was not being terminated; paragraph 54, alleging
Connolly terminated Parenti “[d]espite Koh’s assurance”; paragraph 72,
alleging Koh resigned from the Board citing the intensity of the in-person
Board meetings; and paragraphs 89 and 128, alleging that all commissioners
were motivated to cover up conflict-of-interest violations.
17 Paragraph 43 states, in relevant part, “Out of concern over the lack of
transparency with the District’s finances, Parenti also discussed concerns
about the finances with Defendant Kucharszky.” Paragraph 52 states, in
27
at a public Board meeting that the District’s finances “had never been
better . . . .” Paragraph 86 alleges that prior to a public Board meeting on
July 13, 2021, Kucharszky stated to the public that Khedr and Husain were
costing the District money. The trial court found that the allegations of
paragraphs 80 and 86 constitute protected activity under section 425.16,
subdivision (e)(1). However, Kucharszky failed to establish any nexus
between the alleged protected activity and the challenged causes of action, as
is his burden under Park. Instead, he merely identified the protected activity
and generally concluded, without analysis, that the challenged causes of
action arise out of the protected activity.
4. Brizuela
The trial court’s order states that the only allegation specifically
mentioning Brizuela is in paragraph 74 of the FAC. Paragraph 74 alleges
that on February 26, 2021, Tobin ordered Khedr to appear for an
“ ‘administrative inquiry’ ” that Friday evening, at which time Khedr
observed Shabbat. It further alleges, “The BPPD commissioners, including
Defendant Brizuela who was a private citizen at the time, also appeared to be
involved in the punitive action.” (Boldface omitted.) The trial court found
that the allegation referring to Brizuela did not identify any acts committed
by her and therefore she was unable to identify any protected activity under
the anti-SLAPP statute. It refused to assume that Brizuela’s alleged
unidentified involvement in placing Khedr on leave constitutes protected
speech or petitioning activity.
relevant part, “Both Koh and Kucharszky told Connolly that Parenti reported
information about the discrepancies.” Paragraph 89 alleges that the
commissioners were motivated to cover up conflict-of-interest violations.
28
B. Commissioner defendants fail to establish the challenged
causes of action arise from protected activity.
The commissioner defendants argue that the only allegations against
them are either that they made comments during Board meetings (Hutchens)
and/or that they investigated complaints of financial mismanagement (Koh,
Kucharszky). They argue that because the only allegations specifically
referring to them are of protected activity, the challenged causes of action
must arise out of the protected activity. Commissioner Brizuela’s argument
is even more conclusory. She claims that the allegation against her is that
she was involved in the same actions as other Board members and because
the allegations against the other Board members involved protected activity,
the claims against Brizuela must also arise out of protected activity.
As with the officer defendants and Connolly, the commissioner
defendants also fail to establish that the challenged causes of action arise out
of protected activity. Instead, they simply assert that the only allegations
specifically mentioning them constitute protected activity and therefore all of
the challenged causes of action must necessarily arise out of the alleged
protected activity. The commissioner defendants provide no analysis or
authority to support their position that a defendant may establish that a
claim “arises from” protected activity by simply identifying allegations of
protected activity. For the reasons explained ante regarding the officer
defendants and Connolly, this is insufficient to meet the commissioner
defendants’ prong 1 burden.
V. District’s Motion
The District moved to strike certain causes of action asserted against
all defendants and others asserted only against the District. The following
challenged causes of action were asserted against all defendants: the first
cause of action for whistleblower retaliation, the fourth cause of action for
29
harassment, the fifth cause of action for hostile work environment, the sixth
cause of action for failure to prevent harassment, the eighth cause of action
for violation of the Tom Bane Civil Rights Act, the ninth cause of action for
invasion of privacy, and the 11th cause of action for intentional infliction of
emotional distress.18 The challenged causes of action asserted only against
the District are: the seventh cause of action for discrimination; the 10th
cause of action for negligent hiring, supervision, or retention of an employee;
and the 14th cause of action for declaratory relief.
A. Trial Court’s Order Denying District’s Motion
As to the causes of action that were asserted against the District and
other defendants, the trial court denied the motion on the same grounds it
denied the motions of the individual defendants. The trial court then
addressed the three challenged causes of action pleaded only against the
District. It summarized the allegations of the seventh cause of action for
discrimination, which include that Tobin, Banta, and Connolly were
“ ‘amused’ by unspecified ‘derogatory language’ of others”; Connolly, Tobin,
and Banta “ ‘convinced’ staff and Commissioners ‘to behave negatively’
toward Plaintiffs”; Connolly, Banta, and Tobin “ ‘took issue’ with persons of
middle-eastern descent, while non-middle eastern whistleblowing officers
were not publicly humiliated or placed on leave”; Connolly asked Husain
about his religion for reasons unrelated to employment; the District initiated
investigations into Husain because of his protected activity and ordered him
18 The trial court’s order denying the District’s motion also references
the 15th cause of action for injunctive relief. However, the District’s opening
brief does not include the 15th cause of action in its discussion of the
challenged causes of action; nor does it provide a citation to the District’s
motion in the clerk’s transcript. Therefore, we will not discuss the 15th cause
of action.
30
to appear for interrogations on dates conflicting with his religion; Khedr was
asked by an unidentified person about his religion and ethnicity for reasons
unrelated to his employment; Tobin ordered Khedr to appear for an
administrative inquiry during Jewish Shabbat and then placed Khedr on
leave for failing to appear; Connolly made “ ‘comments’ ” regarding Parenti’s
age and surgery, which was not employment-related. The trial court found
that none of the allegations refer to conduct or communications that
constitute protected activity under section 425.16.
The trial court summarized the 10th cause of action for negligent hiring
as based on allegations that the District (1) failed to investigate Connolly,
Tobin, Banta, Nelson and others before hiring them; (2) retained them after
learning they were purportedly unfit; and (3) failed to adequately supervise
them. It then found that the District made no argument supporting the
contention that a failure to act is a protected activity under the anti-SLAPP
statute; nor did the District identify any statutorily protected act that is the
basis for the negligent hiring claim.
The trial court’s order further found that the District failed to establish
that the 14th cause of action for declaratory relief arises from protected
activity. The court explained that the declaratory relief cause of action
includes 26 paragraphs of unconnected allegations and conclusions and then
concludes, “ ‘A judicial determination of these issues is necessary and
appropriate at this time because of the circumstances and controversies
related to the issues.’ ” However, the cause of action does not identify the
subject of the declaratory relief the plaintiffs’ seek. Nor does it identify the
“ ‘issues’ ” or the parties’ respective positions.
31
B. District fails to establish that the challenged causes of
action arise from protected activity.
Regarding the causes of action that were asserted against all
defendants, the District makes the same conclusory argument that its motion
should be granted because the only allegations against the individual
defendants are the purported protected activity of pursuing internal
investigations, placing defendants on leave, and making comments at Board
meetings. The District again makes no effort to explain the elements of the
challenged causes of action and how the allegations referring to the
individual defendants are the basis for the challenged causes of action. The
District’s conclusory argument is without merit for the same reasons
discussed ante, regarding the individual defendants’ motions.19
19 The District acknowledges, “Plaintiffs also offer a few allegations of
nonprotected activity to support a few of those causes of action,” without
explaining which causes of action or allegations they are referencing other
than stating, “For example, Plaintiff Parenti alleges that he was unlawfully
terminated.” It then claims “an entire cause of action arises out of protected
activity as long as one of the alleged acts does” and cites to Salma v. Capon
(2008) 161 Cal.App.4th 1275 for the proposition: “A mixed cause of action
arises from protected activity as long as ‘at least one of the underlying acts is
protected conduct, unless the allegations of protected conduct are merely
incidental to the unprotected activity.’ ” This is no longer an accurate
statement of the law following the California Supreme Court decisions in
Baral v. Schnitt (2016) 1 Cal.5th 376 and Bonni, supra, 11 Cal.5th 995, which
address anti-SLAPP motions involving mixed causes of action that rest on
allegations of protected and unprotected acts. As explained in Bonni: “If a
cause of action contains multiple claims and a moving party fails to identify
how the speech or conduct underlying some of those claims is protected
activity, it will not carry its first-step burden as to those claims.” (Bonni,
supra, 11 Cal.5th at p. 1011, italics added.) Here, the defendants moved to
strike entire causes of action and have failed to meet their burden to identify
how their purported protected activity is the basis for any of the challenged
causes of action or any of the claims for relief within the causes of action.
32
The District also fails to meet its burden to demonstrate that the basis
for the three challenged causes of action asserted solely against the District
arise out of protected activity. The District argues that the seventh cause of
action for discrimination arises out of protected activity because it alleges the
plaintiffs were subject to internal investigations and placed on leave. It
correctly argues that internal investigations of public employees are “ ‘official
proceedings’ ” under section 425.16 and that statements made in connection
with the investigation are protected. However, it fails to identify any
statements made regarding the investigation that are the basis for the cause
of action. (Verceles v. Los Angeles Unified School Dist., supra, 63 Cal.App.5th
at p. 788 [“In the absence of any oral or written statements from which
[plaintiff’s] claims arise, the District’s decisions to place [plaintiff] on leave
and terminate his employment are not protected activity within the meaning
of section 425.16, subdivision (e)(2), even if those decisions were made in
conjunction with an official proceeding”].)
Regarding the 10th cause of action for negligent hiring, the District
refers to allegations that “the BPPD’s commissioners, who were vocal about
their discontent with the fact that Plaintiffs’ whistleblowing efforts led to the
resignation of Connolly, promoted Tobin to become the interim Chief of
Police” and that “[v]irtually immediately after Tobin and Banta assumed
their new roles their primary agenda item appears to be to retaliate against
Khedr and Husain by launching new internal affairs investigations after all
prior investigations appeared to fail.” The District further asserts that the
plaintiffs allege the District was negligent in voting to hire Connolly and that
voting on District matters is a protected activity. The District concludes,
with minimal analysis, that the negligence cause of action arises from
protected activity. We disagree.
33
As to the voting issue, the FAC alleges that “Connolly forced the Board
to vote for Connolly to become the next Chief of the BPPD, in violation of
conflict-of-interest statutes” and then goes on to allege Connolly’s ethical
breaches. The negligent hiring cause of action is asserted against the
District, not the Board, and it focuses on Connolly’s actions as chief of police,
including the hiring of Banta and Nelson, among others, without adequately
investigating their backgrounds. The District has not established that the
negligent hiring cause of action arises out of either voting activity, internal
investigations of the plaintiffs, or comments Board members allegedly made
at Board meetings. (Bonni, supra, 11 Cal.5th at p. 1011.)
The District argues that the 14th cause of action for declaratory relief
alleges “the controversy is based, at least in part, on the District launching
internal affairs investigations into Plaintiffs, placing Plaintiffs on
administrative leave during those investigations and ordering them to sit for
investigative interviews” and, therefore, the cause of action arises from
protected activity. As discussed ante, decisions to place the plaintiffs on leave
are not protected activity in the absence of oral or written statements that
provide the basis of a plaintiff’s claim. (Verceles v. Los Angeles Unified School
Dist., supra, 63 Cal.App.5th at p. 788.) Moreover, as the trial court correctly
found, the FAC’s declaratory relief cause of action does not identify any
specific controversy between the parties or allege that such controversy is a
proper subject of declaratory relief. While the declaratory relief cause of
action may be subject to attack by demurrer, the District has failed to
establish that it is based upon protected activity under section 425.16.
In sum, we agree with the trial court that the defendants failed to
make a threshold showing that the challenged causes of action arise from
protected activity. Accordingly, the burden does not shift to the plaintiffs to
34
demonstrate that their claims have at least minimal merit and we need not
reach the second prong of the anti-SLAPP analysis. (Baral v. Schitt, supra, 1
Cal.5th at p. 396 [only “[i]f the court determines that relief is sought based on
allegations arising from activity protected by the statute” is the “second step
. . . reached”].)
DISPOSITION
The trial court’s orders are affirmed. The plaintiffs shall recover their
costs on appeal.
Jackson, P. J.
WE CONCUR:
Burns, J.
Chou, J.
A164200/Parenti v. Broadmoor Police Protection Dist.
35