Jeffra v. Cal. State Lottery

Filed 8/29/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JAMES THOMAS JEFFRA, B292775
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC683021)
v.
CALIFORNIA STATE LOTTERY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Susan Bryant-Deason, Judge. Affirmed.
Xavier Becerra, Attorney General, Chris A. Knudsen,
Senior Assistant Attorney General, Kenneth C. Jones,
Supervising Deputy Attorney General, and Nancy James, Deputy
Attorney General, for Defendant and Appellant.
Santiago & Jones, David G. Jones and Alex V. Vo for
Plaintiff and Respondent.
__________________________
SUMMARY
Plaintiff James Thomas Jeffra was an investigator
employed by defendant California State Lottery. He sued
defendant, alleging retaliation in violation of the California
Whistleblower Protection Act. (Gov. Code, § 8547.8, subd. (c).)
He alleged defendant engaged in a pretextual investigation,
ultimately forcing him to retire, after he filed a whistleblower
complaint with the California State Auditor.
Defendant filed an anti-SLAPP (strategic lawsuit against
public participation) motion to strike the complaint (Code Civ.
Proc., § 425.16), contending the complaint arose from protected
activity, namely, defendant’s investigation of possible misconduct
by plaintiff. The trial court denied the motion, finding the
complaint arose “from non-protected retaliation, not protected
investigations.”
After plaintiff’s ensuing appeal was briefed, the California
Supreme Court decided Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871 (Wilson). In Wilson, the court disapproved
the precedent on which the trial court here relied, and held that
retaliation claims “arise from the adverse actions allegedly
taken” – here, the investigation – “notwithstanding the plaintiff’s
allegation that the actions were taken for an improper purpose.”
(Id. at p. 892.) We conclude, consistent with Wilson, that
plaintiff’s complaint arose from protected activity.
The trial court did not consider whether plaintiff had
established a probability of prevailing on the merits of his claim.
Giving “careful attention to the limited nature of a plaintiff’s
second-step showing” (Wilson, supra, 7 Cal.5th at p. 892), we
conclude plaintiff has made the necessary showing.
2
Consequently, we affirm the trial court’s order denying the anti-
SLAPP motion.
FACTS
1. Plaintiff’s Complaint and Declaration
Plaintiff was hired by defendant as a Lottery Investigator
in October 2011. His duties included investigating complaints
and allegations of administrative misconduct of Lottery ticket
retailers, claimants, distributors, suppliers, and contractors to
the Lottery. Until November 2016, when he was placed on
“administrative time off,” his performance was exemplary.
Plaintiff alleges that from 2013 through 2016, he reported
to his superiors that prizes were paid to claimants of winning
Lottery tickets who did not provide substantial proof that they
were the genuine owners of the winning tickets. He also reported
fraud among retailers of Lottery tickets and their employees,
such as narrowly scratching tickets to see if they were winners
and, if not, selling them to unsuspecting members of the public;
and widespread theft of tickets. He also reported defendant had
inadequate systems to prevent fraud. Some superiors, in effect,
told him to stay quiet because sales were good.
Plaintiff made a telephonic whistleblower report in April
2016. He and investigator Gary Galbreath made a joint written
report in late September 2016. They appended to their report
copies of documents they had created or obtained in the course of
their duties. They only provided the documents to the Auditor’s
office, and to no one else.
On November 14, 2016, Kelly Dixon, the special assistant
to the deputy director of the Security/Law Enforcement Division
(for which plaintiff worked) told plaintiff he was being put on
administrative leave. Plaintiff was required to turn in his
3
equipment and peace officer credentials and was escorted off the
premises. He was interrogated by Mr. Dixon on November 17,
including about his whistleblower complaint – which he had not
told anyone about. He was later told he would lose pension and
health benefits if he was terminated while on administrative
leave. He knew of two former coworkers who had been
terminated after submitting whistleblower complaints within the
previous year. So he retired.
The complaint alleged defendant’s actions were “solely
based on retaliation because of Plaintiff’s protected conduct,” and
the reasons given for the investigation and for placing him on
administrative time off were “wholly pretextual.”
2. Defendant’s Anti-SLAPP Motion
Defendant filed an anti-SLAPP motion, including a
declaration from James Libby, an assistant chief with the
California Highway Patrol, who was assigned to perform the
duties of deputy director of the Lottery’s Security/Law
Enforcement Division. (The parties refer to this division as
SLED.) Mr. Libby was the chief law enforcement officer for the
Lottery, and oversaw a staff that included plaintiff. Among many
other duties, he was charged with “investigating employee
misconduct when I became aware of possible misconduct.”
Mr. Libby explained that, when questions arise about a
claim for Lottery winnings, an investigator is assigned to
investigate the claim. The investigator’s report includes
confidential information, such as a claimant’s name, address,
phone number, date of birth, social security number, and so on.
The investigation files are kept confidential, accessible only to
investigative and legal staff on a need to know basis.
4
In late October 2016, Mr. Libby saw an advertisement
promoting an investigative report scheduled to air on a CBS
television affiliate on October 27 and October 28. The
advertisement indicated the reporter (David Goldstein) was
looking into payments made to a specific Lottery winner whose
claim was not accessible to investigators for various reasons.
The promotion for the CBS show indicated that Lottery
insiders were giving confidential information to Mr. Goldstein.
Mr. Libby testified he had a duty to investigate the potentially
criminal disclosure of confidential information.
Before the Goldstein investigative report was broadcast,
Mr. Libby began an investigation to determine who was releasing
confidential information from the Lottery. The investigation
revealed that plaintiff and two other Lottery employees had
viewed two files they were not authorized to access and printed
copies of confidential reports.
On October 31, 2016, Mr. Libby initiated a formal
administrative investigation into potential misconduct by
plaintiff to determine whether he had committed misconduct by
accessing investigative files without authority and/or
disseminating confidential information.
On November 10, 2016, Mr. Libby issued a memorandum to
plaintiff notifying him that “he would be the subject of a formal
administrative interrogation on November 17, 2016.”
On November 14, 2016, defendant notified plaintiff it was
placing him on “Administrative Time Off” pending its
investigation, which was standard procedure “when there are
concerns that misconduct could continue, or that the
investigation could be compromised, if the employee remains in
the workplace.”
5
On November 16, 2016, Manuel Ortiz, plaintiff’s
supervisor, received a package from plaintiff “containing
separation documents and advising that he intended to retire,”
with November 26, 2016 as his last day on the payroll.
Also on November 16, 2016, another investigator,
Mr. Galbreath, was interviewed “in connection with the
investigation into [plaintiff’s] possible misconduct.” Plaintiff was
interviewed the following day, November 17. Following one or
both of these interviews, Mr. Libby “was notified by the
interviewer that [plaintiff] and the other employee revealed in
their administrative interviews that they had submitted a joint
whistleblower complaint to the California State Auditor. This
was the first I learned that either [plaintiff] or the other
employee had filed any sort of whistleblower complaint.”
3. Plaintiff’s Opposition
Plaintiff submitted several declarations in opposition to
defendant’s anti-SLAPP motion, including his own.
In addition to facts already recounted, plaintiff described
his work investigating “numerous instances of theft and
embezzlement of Lottery ‘scratchers’ tickets, often in amounts
exceeding $100,000.” He learned these crimes “were made
possible by flaws in the Lottery’s Retailer Compliance Program.”
He stated that “throughout the years 2013 through 2016, I
notified my direct supervisors about my findings and apprised
them of the widespread fraud I have observed upon bona fide
Lottery ticket purchasers, the Lottery, and the state of
California, as well as the inadequacies I had observed in the
Lottery’s Retailer Compliance Program that enabled such fraud
and theft to go on without detection.” He described his findings
6
in detail, and identified some of his superiors to whom he
reported the concerns he described.
On April 16, 2016, plaintiff submitted a telephonic
whistleblower complaint to the Auditor. He “reported the . . .
flaws in the Lottery’s Retailer Compliance Program as well as the
Lottery’s failure to implement notification systems to flag and
apprise investigators in advance of suspicious transactions and
activities. In reporting the Lottery’s failure to employ sufficient
oversight and safeguards to prevent theft and embezzlement of
scratchers tickets,” plaintiff identified two specific cases “whereby
scratchers tickets retailers or their employees were able to
abscond with approximately $123,000 and $270,000 worth of
tickets . . . months before the Lottery even became suspicious and
began to investigate.” He reported that defendant uses
notification systems for its other games, but not for scratchers
tickets, and he “apprised the Bureau of the statements I had
received from other Lottery[] supervisors and staff indicating
that the Lottery was more concerned about sales of Lottery
tickets than with preventing fraud.”
Also in April 2016, plaintiff met with Mr. Libby, Mr. Ortiz,
and two fellow investigators. The investigators voiced their
concerns, but Mr. Libby “was not receptive to our concerns.
Instead, Deputy Director Libby stated, ‘we are corporate security
with police powers,’ and that there is ‘shrinkage in all
corporations.’ I understood Deputy Director Libby’s statements
to imply that if we [the three investigators] continued to voice our
concerns about the Lottery’s investigatory practices, we would be
subject to termination.” Plaintiff stated Mr. Libby “responded
flippantly to our concerns that we were being hindered in
effectuating investigations and arrests,” and plaintiff understood
7
another comment Mr. Libby made “to mean that SLED [the
enforcement division] did not take our concerns seriously and
that we were being warned to stop voicing our concerns and
disagreements with the Lottery’s investigatory practices.”
In late September 2016, “investigator Gary Galbreath and I
prepared and submitted a detailed joint whistleblower complaint,
signed by both Galbreath and I, to the California State Auditor
describing all of the above matters. The joint whistleblower
complaint also addressed issues regarding: (1) the Lottery’s
payment of prizes to unqualified persons despite investigators’
findings and recommendations to the contrary; (2) the Lottery’s
failure to address widespread ‘pinning,’ an illegal practice
whereby Lottery ticket retailers apply small scratches to
scratchers tickets to determine their value and then knowingly
sell losing tickets to unknowing buyers while keeping winning
tickets for themselves; (3) the Lottery’s failure to address
widespread theft of Lottery tickets by unscrupulous retailers; and
(4) the Lottery’s reluctance to penalize repeat violators of Lottery
rules and regulations and its reluctance to authorize
investigators to investigate such persons and activities.”
“Per the request of the California State Auditor,
investigator Galbreath and I included with our whistleblower
complaint various investigative reports we had authored or
obtained in the course of our duties, which we believed evidenced
ongoing failure by the Lottery to follow the law in awarding
prizes to claimants. The information accessed and obtained by
investigator Galbreath and I was obtained solely for the purpose
of submission to the California State Auditor and we did not
forward or share any of the information with any other persons or
entities.”
8
Plaintiff was interrogated on November 17, 2016, by
Special Assistant Dixon. “Among the matters that I was
interrogated on were the contents and the grounds for the
contentions made in the whistleblower complaint . . . . Prior to
this time, I had not spoken to anyone or otherwise made the
existence of the whistleblower complaint known to anyone other
than Gary Galbreath and the office of the California State
Auditor.”
Plaintiff’s declaration stated his understanding that there
had still been no resolution of the allegations he misused the
Lottery’s information technology resources, and that his
personnel records reflect “that my employment with the Lottery
ended while I was still under investigation, which will effectively
bar me from future employment in law enforcement.”
Plaintiff explained he was advised that he risked losing
significant pension and health benefits if he were terminated
while under investigation or if the investigation resulted in an
adverse finding. He was also aware that two other investigators,
former chief investigator Helen Brean and former deputy director
Stephen Tacchini, “had previously made complaints similar to
the ones investigator Galbreath and I had made and were
terminated soon afterwards.” Plaintiff described the
circumstances of those terminations. In Ms. Brean’s case, after
investigating and recommending denial of a claim, defendant
disregarded her report and granted the prize to the claimant.
Shortly after she filed a whistleblower complaint on the matter,
Ms. Brean was terminated. Her ensuing lawsuit was settled;
plaintiff included a copy of her complaint with his declaration.
9
Plaintiff’s declaration concluded:
“Because of the humiliating treatment that I was subjected
to during the interrogation, the fact that the interrogation was
based largely on the contents of my whistleblower complaint, a
clear pattern by the Lottery in terminating those who report
concerns of waste, abuse, and fraud, and . . . the indefinite nature
of the compulsory leave that I was placed on, it was apparent to
me that there was a concerted effort by the Lottery to intimidate
both me and investigator Galbreath and to fabricate reasons for
terminating us.” Plaintiff was fearful of being terminated and
losing the pension and health benefits that “my wife and I both
need in order to survive.” Because of the “inordinate amount of
stress and anxiety,” plaintiff “saw no other option but to retire
prior to my intended retirement age and I did so, reluctantly, in
the end of November of 2016.”
Plaintiff also submitted a declaration from Mr. Galbreath,
the investigator who filed the joint whistleblower complaint with
plaintiff. Mr. Galbreath largely corroborated plaintiff’s
testimony. Their whistleblower complaint “implicated Deputy
Director James Libby . . . and others as being either complicit in
the conduct alleged in the complaint or negligent in their duty to
enforce Lottery rules and regulations.”
Mr. Galbreath stated that until he was interrogated by
Mr. Dixon, “I did not discuss or otherwise make known the
existence of the joint whistleblower complaint to anyone other
than [plaintiff] and the office of the California State Auditor.”
Mr. Galbreath stated that, “[t]o my surprise, Kelly Dixon
presented me during the interrogation with a copy of the first
page of the whistleblower complaint” he and plaintiff had
submitted in September 2016. He was “baffled that Mr. Dixon
10
would have this document since I had never provided or even
discussed any portion of it with anyone other than [plaintiff] and
the office of the . . . Auditor.” According to Mr. Galbreath,
Mr. Dixon said “that he found it on the desk of another former . . .
investigator, Robin Chan” on November 14, 2016.
Mr. Galbreath found this explanation “unbelievable,”
because neither he nor plaintiff had provided the whistleblower
complaint to anyone but the Auditor; he knew of no involvement
by Mr. Chan with the Auditor’s office; and Mr. Chan had been
terminated from the enforcement division approximately
six months before he and plaintiff were suspended, “and would
therefore not have had any access or reason to be in any of [the
division’s] offices.” Further, Mr. Galbreath physically drafted the
complaint, and never worked on it on any of the computers in the
division’s offices. Mr. Galbreath stated it was clear to him that
Mr. Dixon was aware of the contents of the joint whistleblower
complaint “in advance of both the interrogation and the
investigation,” as Mr. Dixon “proceeded to interrogate me on the
contents of the complaint, as he questioned the propriety of me
and [plaintiff] submitting specific information to the California
State Auditor, and as he repeatedly challenged the grounds for
the specific contentions made in the whistleblower complaint.”
Mr. Galbreath was terminated from his employment as an
investigator in April 2017.
Plaintiff’s opposition included copies of the transcripts of
the interrogations of plaintiff and Mr. Galbreath.
4. The Trial Court’s Ruling
The court denied defendant’s motion, concluding plaintiff’s
causes of action arose “from non-protected retaliation, not
protected investigations.” The court did not reach the question
11
whether plaintiff demonstrated a probability of prevailing on the
merits of his retaliation claim.
Defendant filed a timely appeal of the court’s ruling.
DISCUSSION
The anti-SLAPP statute and procedures have been
described many times. A defendant may bring a special motion
to strike any cause of action “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 . . . .” (Code Civ.
Proc., § 425.16, subd. (b)(1) (section 425.16).)
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. The moving defendant bears the
initial 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.] If the plaintiff fails to meet that burden, the
court will strike the claim.” (Wilson, supra, 7 Cal.5th at p. 884.)
In making its determination, the trial court considers “the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal. 4th 260, 269, fn. 3.)
1. The First Prong: Protected Activity
As Wilson tells us, the defendant’s first-step burden “is to
identify the activity each challenged claim rests on and
demonstrate that that activity is protected by the anti-SLAPP
statute. A ‘claim may be struck only if the speech or petitioning
12
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.’ ” (Wilson, supra, 7 Cal.5th at p. 884.) “To determine
whether a claim arises from protected activity, courts must
‘consider the elements of the challenged claim and what actions
by the defendant supply those elements and consequently
form the basis for liability.’ ” (Ibid.) The court then evaluates
“whether the defendant has shown any of these actions fall
within one or more of the four categories of ‘ “act[s]” ’ protected by
the anti-SLAPP statute.” (Ibid.)
In Wilson, the court decided a question that had created a
“growing divide” in the courts of appeal. (Wilson, supra,
7 Cal.5th at p. 883.) Wilson concluded that “for anti-SLAPP
purposes discrimination and retaliation claims arise from the
adverse actions allegedly taken, notwithstanding the plaintiff’s
allegation that the actions were taken for an improper purpose.
If conduct that supplies a necessary element of a claim is
protected, the defendant’s burden at the first step of the anti-
SLAPP analysis has been carried, regardless of any alleged
motivations that supply other elements of the claim.”1 (Id. at
p. 892.)
The principle stated in Wilson governs this case.
As Wilson also tells us, “[t]o prove unlawful retaliation,
[plaintiff] must . . . show [defendant] subjected him to adverse
employment actions for impermissible reasons – namely, because
he exercised rights guaranteed him by law.” (Wilson, supra,
1 The court disapproved Nam v. Regents of University of
California (2016) 1 Cal.App.5th 1176 to the extent it was
inconsistent with Wilson’s conclusion. (Wilson, supra, 7 Cal.5th
at p. 892.)
13
7 Cal.5th at p. 885.) Defendant points out that its investigation
of plaintiff was the allegedly adverse employment action at the
heart of plaintiff’s complaint, and we cannot disagree: the
investigation was the “wrong complained of” – the adverse action
that supplies a necessary element of plaintiff’s retaliation claim.
And the other adverse actions (plaintiff’s administrative leave
and his forced retirement) are inextricably tied to the
investigation; plaintiff could not omit reference to the
investigation and still have a retaliation claim.
Thus, if plaintiff’s complaint arises from the investigation –
as it surely does, as that is the very wrong complained of – and if
the investigation falls within one or more of the four categories of
acts protected by the anti-SLAPP statute, defendant has satisfied
its initial burden. That is the case here.
Defendant correctly asserts the investigation was protected
activity under section 425.16, subdivision (e)(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”). The
authorities support the proposition that an internal investigation
by a state-created entity is an “official proceeding authorized by
law.” (See Hansen v. Department of Corrections & Rehabilitation
(2008) 171 Cal. App. 4th 1537, 1544 [state entity’s internal
investigation into allegations that the plaintiff had engaged in
misconduct and criminal activity “itself was an official proceeding
authorized by law”].) “Although [the plaintiff] was never formally
charged with misconduct or a crime, communications preparatory
to or in anticipation of the bringing of an official proceeding are
within the protection of section 425.16.” (Id. at p. 1544, citing
14
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th
1106, 1115.)
Plaintiff does not suggest otherwise, instead arguing only
that “the ‘protected’ conduct on which [defendant] based its
motion, i.e., its ‘investigation,’ was in fact a sham done in
retaliation for the complaints made of waste, abuse and
violations of law,” and therefore was not activity protected under
the anti-SLAPP statute. As we have seen, Wilson definitively
rejects that view of the anti-SLAPP statute, refusing to “treat[] a
plaintiff’s allegations of illicit motive as a bar to anti-SLAPP
protection.” (Wilson, supra, 7 Cal.5th at p. 889.) Rather,
defendant’s allegedly impermissible reason for taking the adverse
employment action is an issue plaintiff must raise and support at
the second step of the analysis. (Id. at p. 888.) We turn to that
issue now.
2. The Second Prong: Probability of Prevailing
on the Merits
To prove unlawful retaliation, plaintiff must show
defendant “subjected him to adverse employment actions for
impermissible reasons – namely, because he exercised rights
guaranteed him by law.” (Wilson, supra, 7 Cal.5th at p. 885.)
Here, that law is the Whistleblower Protection Act. Among other
things, the act provides that “any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or
similar acts against a state employee . . . for having made a
protected disclosure shall be liable in an action for damages . . .
by the injured party.” (Gov. Code, § 8547.8, subd. (c).)
Wilson describes the plaintiff’s burden. “[T]he plaintiff’s
second-step burden is a limited one. The plaintiff need not prove
her case to the court [citation]; the bar sits lower, at a
15
demonstration of ‘minimal merit’ [citation]. At this stage, ‘ “[t]he
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.” ’ ” (Wilson, supra, 7 Cal.5th at p. 891.)
Defendant contends plaintiff did not demonstrate the
necessary minimal merit because, as a matter of law, there was
no adverse employment action, and even if there were, plaintiff
“cannot establish a causal link” between the adverse action and
“his alleged whistleblowing activity.” We disagree.
First, it is not correct that defendant took no adverse action
against plaintiff. If plaintiff’s evidence is believed, defendant
subjected him to a pretextual investigation and, in the course of
doing so, placed him on administrative leave, required him to
surrender his equipment, stripped him of his peace officer status,
and escorted him off the premises. That the investigation was
pretextual may be inferred from evidence that he was
interrogated on “the contents and the grounds for the contentions
made in the whistleblower complaint”; that Mr. Galbreath, too,
was interrogated on the contents of the whistleblower complaint,
and was also confronted with the first page of the complaint, with
no plausible explanation of how defendant obtained it; and that
two other investigators “had previously made complaints similar
to the ones investigator Galbreath and [plaintiff] had made and
were terminated soon afterwards.”
Defendant does not acknowledge this evidence in its
opening brief. Defendant simply insists that an investigation is
16
not an adverse action, citing McRae v. Department of Corrections
& Rehabilitation (2006) 142 Cal. App. 4th 377, 392-393 (McRae).
McRae does not stand for that proposition. McRae reversed a
jury award to the plaintiff on her retaliation claim, finding the
verdict was not supported by substantial evidence. (Id. at
p. 390.) Among several other deficiencies, the plaintiff did not
meet her burden of establishing her employer’s asserted reasons
were pretextual. (Ibid.) In the course of a lengthy discussion of
the evidence (or lack thereof) of actionable conduct, the court
stated that “[u]nder the circumstances here, the investigation and
decision [to transfer the plaintiff rather than discipline her] were
not themselves actionable, but were intermediate steps that led
to the transfer.” (Id. at pp. 392-393, italics added.)
Needless to say, the circumstances in McRae are not the
circumstances here. McRae does not support the proposition that
a pretextual investigation is not an adverse employment action,
and defendant cites no other authority that does so. (See also
Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1052
[“Retaliation claims are inherently fact-specific, and the impact of
an employer’s action in a particular case must be evaluated in
context. Accordingly, although an adverse employment action
must materially affect the terms, conditions, or privileges of
employment to be actionable, the determination of whether a
particular action or course of conduct rises to the level of
actionable conduct should take into account the unique
circumstances of the affected employee as well as the workplace
context of the claim.”]; cf. Whitehall v. County of San Bernardino
(2017) 17 Cal.App.5th 352, 366-367 [administrative leave may
constitute an adverse employment action].) We thus reject
defendant’s claim that “[n]one of the adverse actions specified in
17
plaintiff’s operative complaint” meets the legal criteria for
actionable conduct.
Second, defendant contends that plaintiff “cannot establish
a causal link between any alleged adverse action and his alleged
whistleblowing activity.” This is said to be because Mr. Libby
made the decisions to place plaintiff on administrative leave and
to investigate plaintiff, and when he did so he did not know about
the whistleblower complaints. Plaintiff’s evidence, defendant
tells us, does not directly refute Mr. Libby’s declaration that he
first heard about the whistleblower complaint after plaintiff’s and
Mr. Galbreath’s interviews.
As McRae states, however, “[f]or purposes of making a
prima facie showing, the causal link element may be established
by an inference derived from circumstantial evidence.” (McRae,
supra, 142 Cal.App.4th at p. 388.) Defendant was in possession
of a portion of plaintiff’s whistleblower complaint before
Mr. Dixon – who was special assistant to Mr. Libby – interviewed
plaintiff and Mr. Galbreath. Defendant presented no declaration
from Mr. Dixon explaining how he came into possession of the
whistleblower complaint. Mr. Galbreath’s declaration shows the
explanation given to him on this point was implausible. Plaintiff
also produced evidence that other investigators who filed
whistleblower complaints were terminated shortly thereafter.
In short, while plaintiff did not produce a declaration that
“directly refutes” Mr. Libby’s declaration, we cannot ignore
reasonable inferences that might be drawn from the
circumstances plaintiff did show, particularly at this stage of the
case.
Defendant cites Morgan v. Regents of University of
California (2000) 88 Cal. App. 4th 52 (Morgan), where the court
18
held that the causal link necessary for a retaliation claim cannot
be established “[i]n the absence of evidence that the individuals
who denied appellant employment were aware of his past filing of
a grievance.” (Id. at p. 73.) Morgan, however, was a summary
judgment case, with multiple declarations from the
decisionmakers explaining their reasons for not rehiring the
plaintiff and stating they had no knowledge of his previous
grievance. (Id. at pp. 60-61.)
This is not a summary judgment case like Morgan; it is an
anti-SLAPP case where there has been no discovery. We look for
a prima facie factual showing, we do not weigh the evidence, we
accept plaintiff’s evidence as true, and we evaluate defendant’s
evidence “ ‘ “only to determine if it defeats the plaintiff’s claim as
a matter of law.” ’ ” (Wilson, supra, 7 Cal.5th at p. 891.) Indeed,
even in a summary judgment case, the court may deny summary
judgment in its discretion “if the only proof of a material fact
offered in support of the summary judgment is an affidavit or
declaration made by an individual who was the sole witness to
that fact; or if a material fact is an individual’s state of mind, or
lack thereof, and that fact is sought to be established solely by
the individual’s affirmation thereof.” (Code Civ. Proc., § 437c,
subd. (e).)
In the circumstances here, we cannot say Mr. Libby’s
declaration defeats plaintiff’s claims as a matter of law. We find
plaintiff has demonstrated the minimal merit necessary to permit
his case to proceed.
19
DISPOSITION
The order is affirmed. Plaintiff shall recover his costs on
appeal.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
20