Allen v. City of Burbank CA2/5

Filed 9/19/14 Allen v. City of Burbank CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PETE ALLEN, B249797
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. EC059929)
v.
CITY OF BURBANK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Donna
Fields Goldstein, Judge. Reversed with directions.
Amelia Ann Albano, Burbank City Attorney and Carol A. Humiston, Senior
Assistant City Attorney, for Defendant and Appellant.
The Claypool Law Firm, Brian E. Claypool; Gustafson & Goostrey and James D.
Gustafson for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, City of Burbank, appeals from a May 8, 2013 order denying its special
motion to strike the complaint of plaintiff, Pete Allen, under Code of Civil Procedure1
section 425.16. Defendant argues: plaintiff’s causes of action for violations of
Government Code section 8547.1 and Labor Code section 1102.5, subdivision (b) arise
from its exercise of free speech or petitioning rights under section 425.16, subdivision
(e); it presented undisputed evidence showing plaintiff was terminated because he lied
during an internal affairs investigation, which is an official proceeding authorized by law;
a termination arising from an internal affairs investigation is part of an official
proceeding; and plaintiff did not meet his burden of establishing a probability that he will
prevail on the merits of his claims. We conclude the challenged conduct is enumerated in
section 425.16, subdivision (e). In addition, plaintiff has not shown a probability of
prevailing on the merits. Thus, the order denying the special motion to strike must be
reversed. Upon remittitur issuance, defendant may recover its attorney fees and costs
incurred in the trial court and on appeal in connection with its special motion to strike.
II. BACKGROUND
A. Complaint
Plaintiff filed a complaint against defendant on December 13, 2012. The
complaint alleges plaintiff was employed by defendant as a police officer. On December
28, 2007, an armed robbery occurred at Porto’s Bakery in Burbank. The next day,
plaintiff was designated as the case agent, responsible for managing the robbery
investigation. Sergeant Edward Penaranda supervised plaintiff and on call Officer
Angelo Dahlia. Lieutenant John Murphy oversaw the entire robbery investigation.
1
Further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2
On December 29, 2007, Officer Dahlia spoke to plaintiff. Officer Dahlia
witnessed Lieutenant Omar Rodriguez threaten a robbery suspect. According to the
complaint: “[Officer Dahlia] later told [plaintiff] that he had seen [Lieutenant Rodriguez]
standing directly in front of a seated suspect. [Lieutenant Rodriguez] then extended his
left arm and used his left hand to grasp the suspect’s throat. [Lieutenant Rodriguez] then
retrieved his handgun from his holster with his right hand, placed the barrel of the gun
directly under the suspect’s eye and said, ‘How does it feel to have a gun in your face
motherfucker[.]’” Lieutenant Rodriguez then looked up and saw Officer Dahlia.
Lieutenant Rodriguez then lowered his gun. Later, Lieutenant Murphy told plaintiff to
leave the robbery investigation to the narcotics and special enforcement detail because
most of the suspects were Spanish speakers. Other investigators took over the robbery
investigation and plaintiff and Officer Dahlia were excluded from participating in
interviews with the robbery suspects. Following December 29, 2008, witnesses and
suspects allegedly were physically assaulted and beaten in Burbank Police Department
interview rooms. Sergeants Neil Gunn and Duran and some patrol officers guarded the
doors of the interview and audio rooms. During this time, plaintiff observed several
suspects with facial injuries following their arrest.
On December 30, 2007, Officer Dahlia told Detective Ken Schiffner about the
Rodriguez incident. On January 3, 2008, Officer Dahlia spoke to Lieutenant Murphy.
Officer Dahlia said he had heard a suspect being beaten in the interview room. Officer
Dahlia reported other instances of unlawful tactics and procedures being used by Burbank
police officers. Lieutenant Murphy ignored the complaints and allegedly told Officer
Dahlia to “‘stop his sniveling[.]’” On January 3 or 4, 2008, Detective Schiffner informed
plaintiff what Officer Dahlia had said about the Rodriguez incident. Twice in January
2008, Officer Dahlia met with Lieutenant Murphy. Officer Dahlia pled with Lieutenant
Murphy to stop the unlawful tactics and beatings. Lieutenant Murphy disregarded
Officer Dahlia’s statements. On February 22, 2008, plaintiff and Officer Dahlia heard
loud bangs on the office walls. They ran down the hall to the interview room and found
Sergeant Gunn had a robbery suspect in the room. In March 2008, plaintiff spoke with
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Lieutenant Murphy about the unlawful tactics being used by some of the officers
investigating the Porto’s Bakery robbery. Lieutenant Murphy allegedly told plaintiff to
“‘shut his mouth[.]’”
In April 2008, the Burbank Police Department conducted an internal investigation
concerning how the Porto’s Bakery robbery investigation was handled. Plaintiff was
notified he would be interviewed. Plaintiff wanted to know whether Officer Dahlia was
going to be interviewed as part of the internal affairs investigation. Plaintiff spoke with
Officer Dahlia. Officer Dahlia said he was going to be interviewed as part of the internal
affairs investigation. Officer Dahlia told plaintiff he was nervous because he had
received threats against him and his family. The sources of the threats were Lieutenant
Rodriguez and Sergeants Penaranda and Duran. They told Officer Dahlia not to disclose
the Rodriguez incident. The complaint alleges, “[Plaintiff] also feared that [Officer
Dahlia] and/or [Officer Dahlia’s] family members would be physically harmed or killed
if [plaintiff] disclosed the [Rodriguez] incident. [Plaintiff] was also worried for his own
safety because he was aware of all the threats and intimidation [Officer Dahlia] was
receiving from [Lieutenant Rodriguez] and others in the [department] warning [Officer
Dahlia] not to disclose the [Rodriguez] incident.”
In May 2009, a second internal investigation was conducted by the Los Angeles
County Sheriff’s Department but spearheaded by Lieutenant Murphy. The complaint
does not identify who interviewed plaintiff but generically refers to the interviewers as
the sheriff’s department. On May 18, 2009, plaintiff was first interviewed by sheriff’s
department investigators. He told the sheriff’s department investigators what he knew.
On July 15, 2009, plaintiff had his second interview with sheriff’s department
investigators. Plaintiff was advised he was being interviewed only as a witness in the
case. Plaintiff then returned to the police station. Upon returning to the police station,
plaintiff learned Sergeant Penaranda had been placed on administrative leave. A
supervisor, identified only as Lieutenant Dermenjian, stated Lieutenant Duran had spread
a rumor that plaintiff was to blame for Sergeant Penaranda being placed on
administrative leave.
4
In August and September 2009, plaintiff had two interviews with Jim Gardiner
and Captain Craig Varner. Plaintiff was told he was the focus of the investigation for the
first time during the interview. Plaintiff provided more details regarding Officer Dahlia
and the Rodriguez incident.
In the months following plaintiff’s interviews with Mr. Gardiner and Captain
Varner, Chief Tim Stehr and Lieutenant Murphy retired. Lieutenant Rodriguez, Sergeant
Penaranda, Officer Dahlia and other police officers were placed on administrative leave
and later terminated. On March 29, 2010, plaintiff was placed on administrative leave
and given a proposed notice of termination.
On June 16, 2010, plaintiff was terminated for alleged violations of the Burbank
Police Department’s memorandum of understanding. Plaintiff commenced
administrative proceedings challenging his termination. As of the filing of the complaint,
plaintiff’s administrative appeal was still pending.
The complaint alleges defendant violated Government Code section 8547.1. The
complaint alleges plaintiff was a state employee. Plaintiff reported abuse of authority and
violations of law occurring at the Burbank Police Department to the sheriff’s department
and the Federal Bureau of Investigation on two separate occasions. Before plaintiff
completed participation in the investigations by the sheriff’s department and the Federal
Bureau of Investigation, he was named Burbank Detective of the Year in 2009. After
plaintiff participated in these two investigations, he was placed on administrative leave
and then terminated. Before being placed on administrative leave, plaintiff had never
been disciplined or reprimanded for his job performance. The complaint also alleges:
defendant violated Labor Code section 1102.5, subdivision (b) by retaliating against
plaintiff for disclosing information to law enforcement; plaintiff engaged in protected
activity by telling the sheriff’s department and the Federal Bureau of Investigation about
police misconduct; and as a result of plaintiff’s cooperation with the investigations by the
sheriff’s department and the Federal Bureau of Investigation, he was subjected to adverse
employment actions.
5
B. Defendant’s Special Motion To Strike
On March 12, 2013, defendant filed a section 425.16 special motion to strike.
Defendant argued plaintiff’s causes of action arose from defendant’s internal affairs
investigation. Defendant contended the internal affairs investigation fell within section
426.16, subdivision (e). Defendant also argued plaintiff could not establish a probability
of prevailing on the merits. Defendant asserted plaintiff could not bring a Government
Code section 8547.1 claim because he was not a state employee. In addition, defendant
argued plaintiff failed to establish a prima facie case of retaliation for his Labor Code
section 1102.5, subdivision (b) claim. Defendant contended plaintiff was terminated
because he lied during an internal affairs investigation. Defendant also asserted: it was
immune from liability under Government Code sections 815.2, subdivision (b), 820.2 and
821.6; its conduct was privileged under Civil Code section 47; and plaintiff failed to file a
timely claim under Government Code section 945.4.
Defendant filed declarations from Retired Chief Stehr, James Gardiner, and
Burbank Police Department Chief Scott LaChasse in support of its special motion to
strike. As will be noted, plaintiff filed no declarations nor presented any other evidence.
Chief Stehr was the Burbank police chief from August 1, 2007, until his retirement on
December 31, 2009. On April 26, 2008, Chief Stehr learned Detective Kerry Schilf had
reported a rumor about police misconduct to Lieutenant Puglisi. Lieutenant Puglisi was
assigned to the department’s internal affairs bureau. The rumor was that Lieutenant
Rodriguez had put a gun to a suspect’s head in order to elicit information. The suspect
was later determined to be uninvolved in the Porto’s Bakery robbery. Lieutenant
Rodriguez’s conduct was witnessed by an unnamed Burbank police officer. On the same
day, Chief Stehr ordered an internal affairs investigation into the allegations of
misconduct by Lieutenant Rodriguez.
During the internal affairs investigation conducted by Lieutenant Puglisi and
Sergeant Gerry Misquez, several Burbank police officers were interviewed, including
Officer Dahlia and plaintiff. During an April 28, 2008 interview, plaintiff denied being
6
aware of any misconduct by Lieutenant Rodriguez. The first internal affairs investigation
was closed because there was no witness to corroborate the suspect’s reports that he was
a victim of excessive force.
On April 6, 2009, Chief Stehr had a meeting with Detective Mike Parrinello,
president of the Burbank Police Detectives’ Association. Also present was Sergeant
Travis Irving, the sergeant representative on the association’s directors’ board. Detective
Parrinello discussed a meeting with Officer Dahlia on April 3, 2008. Chief Stehr
declared, “Detective Parrinello informed me that he had met with [Officer]
Dahlia . . . and [Officer] Dahlia had expressed that he was feeling threatened by
Lieutenant Rodriguez.” Detective Parrinello suggested Chief Stehr reopen the internal
affairs investigation of the Porto’s Bakery robbery misconduct allegation. Detective
Parrinello stated an officer had witnessed misconduct but did not report it. On the same
day, Chief Stehr instructed Captain Varner and Sergeant Misquez to reopen the internal
affairs investigation.
On April 16, 2009, Chief Stehr wrote a letter to then-Sheriff Leroy Baca
requesting the sheriff’s department conduct an investigation into the allegations
concerning Lieutenant Rodriguez. Chief Stehr instructed Captain Varner and Sergeant
Misquez to cooperate with the sheriff’s department’s criminal investigation. After
consultations with the Burbank City Attorney’s Office and the Burbank City Manager,
Mike Flad, Chief Stehr retained Mr. Gardiner to reopen the internal affairs investigation.
Chief Stehr retired before Mr. Gardiner completed the investigation.
Chief Stehr denied retaliating against plaintiff for communicating with the
sheriff’s department or any other law enforcement agency regarding misconduct in the
Burbank Police Department. The Burbank Police Department made its conference rooms
available for the sheriff’s department to interview Burbank police officers and detectives.
Plaintiff was paid his salary by defendant while being investigated by the sheriff’s
department. At the time of his retirement, Chief Stehr was aware of a federal
investigation of one or more officers of the Burbank Police Department. But Chief Stehr
did not know if plaintiff cooperated with the Federal Bureau of Investigation.
7
In his declaration, Mr. Gardiner stated he was the former police chief for the City
of San Luis Obispo from 1987 through 2002. On April 17, 2009, he was retained by
defendant to conduct an internal affairs inquiry concerning alleged use of force by
Burbank police officers and detectives during the Porto’s Bakery robbery investigation.
Mr. Gardiner reviewed the first internal affairs investigation concerning the rumor that
Lieutenant Rodriguez had held a gun to a suspect’s head. The suspect confirmed the
rumor during the first investigation. But after a two-month investigation, the allegation
against Lieutenant Rodriguez was deemed not sustained. The basis for this determination
was that no police officer or independent witness corroborated the suspect’s statements.
During the second internal affairs investigation, Mr. Gardiner interviewed
Burbank police officers and witnesses including plaintiff. Mr. Gardiner interviewed
plaintiff on August 4 and September 28, 2009. Mr. Gardiner summarize the results of the
interviews of plaintiff: “During my interviews with [plaintiff], he expressly admitted he
was aware of information about the misconduct of [Lieutenant] Rodriguez shortly after it
had occurred and that Officer . . . Dahlia had witnessed the misconduct. [Plaintiff]
admitted to me he was aware of the information about the misconduct of [Lieutenant]
Rodriguez at the time he was interviewed during the original [i]nternal [a]ffairs
investigation. . . . [Plaintiff] admitted to me he had not responded truthfully to
[Lieutenant] Puglisi’s questions during the original [i]nternal [a]ffairs
investigation. . . . According to [plaintiff], because Officer . . . Dahlia had reported to
[plaintiff] concerns about Officer . . . Dahlia’s personal safety at the hands of
[Lieutenant] Rodriguez and [Sergeant Penaranda], and it was clear to [plaintiff] that
Officer . . . Dahlia was not going to tell what he saw during the original [i]nternal
[a]ffairs investigation, [plaintiff] did not want to be only one reporting misconduct.”
Transcripts of Mr. Gardiner’s April 28 and August 4, 2009 interviews of plaintiff were
attached to the special motion to strike. During the August 4, 2009 interview, plaintiff
admitted: ‘“It was Ken Schiffner told me that -- that there were rumors flying around
about things, and -- and he said -- I -- I -- I can’t tell you how it came up, but it came up
8
in -- in this whole thing. [¶] And he said, ‘Yeah,’ you know, [Officer Dahlia] saw
[Lieutenant Rodriguez] stick a gun in this guy’s face.”’
At the completion of the second internal affairs investigation, Mr. Gardiner
sustained multiple misconduct allegations against plaintiff. Mr. Gardiner concluded
plaintiff intentionally withheld evidence that affected the outcome of the first internal
affairs investigation. Mr. Gardiner sustained allegations against plaintiff for violations of
the Burbank Police Department’s memorandum of understanding and duty manual.
These violations included: neglect of duty; failure to report misconduct; lying; violation
of administrative rules and regulations; conduct of a disgraceful or scandalous nature;
conduct unbecoming a public officer or employee; willfully making any false statements;
and incompetency or inefficiency in the performance of required duties. Mr. Gardiner
denied retaliating against plaintiff for communicating with the sheriff’s department or
any other law enforcement agency concerning misconduct in the Burbank Police
Department.
In his declaration, Chief LaChasse stated he became police chief of Burbank on
January 7, 2010. When he joined the Burbank Police Department, Mr. Gardiner’s
internal affairs investigation was already underway. In addition, Lieutenant Rodriguez,
Sergeants Gunn and Penaranda and Officer Dahlia were on administrative leave.
Mr. Gardiner finished his internal affairs investigation in March 2010. Chief LaChasse
then reviewed Mr. Gardiner’s final report. Based on the final report and the supporting
evidence, Chief LaChasse decided to terminate plaintiff and other Burbank sworn
personnel. Chief LaChasse concluded plaintiff was dishonest when communicating
during the first internal affairs investigation and failed to report police misconduct.
Chief LaChasse knew former Chief Stehr had referred the issue of police
misconduct to the sheriff’s department. Chief LaChasse and his staff cooperated and
assisted with the sheriff’s department’s investigation. Chief LaChasse made the Burbank
Police Department’s and City of Burbank’s facilities available for the sheriff’s
investigators to conduct interviews. Chief LaChasse denied terminating plaintiff because
of any cooperation in the sheriff’s investigation. Chief LaChasse encouraged all Burbank
9
Police Department sworn and unsworn personnel to participate and cooperate in the
sheriff’s department’s investigation.
Chief LaChasse knew the Federal Bureau of Investigation was conducting an
investigation of police misconduct when he joined the Burbank Police Department. The
Burbank Police Department fully cooperated with the Federal Bureau of Investigation.
Chief LaChasse encouraged police officers to cooperate with the Federal Bureau of
Investigation. Chief LaChasse concluded: “I did not terminate the employment of
[plaintiff] because he participated in the [Federal Bureau of Investigation] investigation
of Burbank police officer misconduct. I did not know at the time I terminated [plaintiff]
whether or not he was interviewed by or cooperated with the [Federal Bureau of
Investigation] in its investigation, and to this date, I still have no knowledge one way or
the other. [¶] I terminated [plaintiff’s] employment because he did not truthfully report
his knowledge regarding police misconduct when expressly asked during an [i]nternal
[a]ffairs investigation.”
Defendant also submitted excerpts from plaintiff’s administrative appeal hearing.
At the August 15, 2012 hearing, plaintiff admitted he had a duty to report misconduct
without regard for personal safety concerns, personal feelings or friendships. Plaintiff
acknowledged he was required to tell the truth during an internal affairs interview.
Plaintiff admitted he omitted information and thus provided false responses when asked if
he knew of misconduct associated with the Porto’s Bakery robbery investigation. He
acknowledged there was no legitimate reason for him to lie during the first internal affairs
investigation. At the August 16, 2012 hearing, plaintiff admitted lying and failure to
report misconduct warranted termination.
Plaintiff filed his opposition to the special motion to strike on March 22, 2013.
Plaintiff conceded the internal affairs investigation was an official proceeding authorized
by law. But plaintiff argued he was not objecting to any statements or writings made
during the course of the internal affairs investigation. Rather, plaintiff objected to being
terminated following the completion of the internal affairs investigation after he disclosed
police misconduct. Plaintiff also argued: he met his burden of establishing a probability
10
of prevailing on the merits; as a police officer he was a state employee; he was terminated
because he was a whistleblower; defendant was not immune from liability under
Government Code sections 815.2, 820.2, and 821.6; defendant’s conduct was not
privileged under Civil Code section 47; and he filed a timely government claim that was
denied by defendant. As noted, plaintiff submitted no declarations or other evidence to
support his opposition to defendant’s motion.
C. Trial Court Ruling
The hearing on the special motion to strike was held on April 3 and May 8, 2013.
At the hearing, defense counsel asked the trial court whether it had read defendant’s
declarations and exhibits. The trial court responded, “Well, I can’t go outside the
complaint.” The trial court stated the complaint was not subject to a special motion to
strike because the principal thrust of plaintiff’s allegations was that his termination was
wrongful.
On May 8, 2013, the trial court denied defendant’s special motion to strike. The
trial court ruled communications made during an internal affairs investigation are
“protected acts” under section 425.16. However, the trial court ruled plaintiff’s
complaint did not seek redress for an oral or written statement in furtherance of free
speech or a protected act. As to the first cause of action, the trial court ruled the claim
was based on defendant’s act of terminating plaintiff’s employment because he was a
whistleblower. The trial court found the second cause of action sought relief from
defendant’s act of terminating plaintiff in retaliation for disclosing information to the
sheriff’s department and the Federal Bureau of Investigation. For both claims, the trial
court ruled: “The [p]laintiff’s claim is not that he was terminated as a result of an
internal affairs investigation; instead, the [p]laintiff’s [c]laim is that he was terminated
because he disclosed information to the [sheriff’s department] and the [Federal Bureau of
Investigation] regarding the violations of law that occurred during the [d]efendant’s
investigation of the Porto[’]s robbery.” The trial court ruled defendant did not meet its
11
initial burden of demonstrating that defendant’s acts fit into the categories identified in
section 425.16, subdivision (e). Because defendant had not met its burden of
demonstrating that section 425.16 applied to plaintiff’s claims, plaintiff had no burden of
showing a probability of prevailing on the merits. Defendant filed a notice of appeal on
June 26, 2013.
III. DISCUSSION
A. Special Motion To Strike Under Section 425.16
Section 425.16, subdivision (b)(1) states: “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.” The court must engage in a two-step process when
determining a special motion to strike. First, the moving party must make a threshold
prima facie showing that the challenged cause of action is one “arising from” the moving
party’s actions in furtherance of the right of petition or free speech. (Episcopal Church
Cases (2009) 45 Cal.4th 467, 477; Flatley v. Mauro (2006) 39 Cal.4th 299, 314; Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Second, if the
court finds such a showing has been made, the burden shifts to plaintiff to establish a
probability of prevailing on the merits. (Episcopal Church Cases, supra, 45 Cal.4th at p.
477; Flatley v. Mauro, 39 Cal.4th at p. 314; Equilon, supra, 29 Cal.4th at p. 67.)
We review de novo the trial court’s ruling on a special motion to strike. (Flatley v.
Mauro, supra, 39 Cal.4th at pp. 325-326; Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 269, fn. 3.) In determining the special motion to strike, “[t]he court shall
consider the pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b)(2); Flatley v. Mauro, supra,
12
39 Cal.4th at p. 326; Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269,
fn. 3.) But as explained by our Supreme Court, we do not weigh the competing evidence:
“‘[W]e neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we]
accept as true the evidence favorable to the plaintiff [citation] and evaluate the
defendant’s evidence only to determine if it has defeated that submitted by plaintiff as a
matter of law.” [Citation.]’” (Flatley v. Mauro, supra, 39 Cal.4th at p. 326; Soukup v.
Law Offices of Herbert Hafif, supra, 39 Cal.4th p. 269, fn. 3; accord, Wilson v. Parker,
Covert & Chidester (2002) 28 Cal.4th 811, 821.)
B. “Arising From” Any Act In Furtherance Of Right To Petition Or Free Speech
The first prong analysis depends upon conduct enumerated in section 425.16,
subdivision (e). Section 425.16, subdivision (e) states: “As used in this section, ‘act in
furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law, (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law, (3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.” (Kurz v. Syrus Systems,
LLC (2013) 221 Cal.App.4th 748, 758; Birkner v. Lam (2007) 156 Cal.App.4th 275,
283.) Discussing the first prong, our Supreme Court explained: “[T]he statutory phrase,
‘cause of action . . . arising from’ means simply that the defendant’s act underlying the
plaintiff’s cause of action must itself have been an act in furtherance of the right of
petition or free speech. [Citation.] . . . . [T]he critical point is whether the plaintiff’s
cause of action itself was based on an act in furtherance of the defendant’s right of
13
petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating
that the act underlying the plaintiff’s cause fits one of the categories spelled out in section
425.16, subdivision (e) . . . .’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; see
Old Republic Construction Program Group v. Boccardo Law Firm, Inc. (2014) 227
Cal.App.4th 554, 564.)
In determining whether a cause of action arises from any act in furtherance of the
right of petition or free speech, we look at “‘the gravamen or principle thrust’” of the
action. (Episcopal Church Cases, supra, 45 Cal.4th at p. 477; Hawran v. Hixson (2012)
209 Cal.App.4th 256, 269.) Our Supreme Court has stated: “The anti-SLAPP statute’s
definitional focus is not on the form of the plaintiff’s cause of action but, rather, the
defendant’s activity that gives rise to his or her asserted liability – and whether that
activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 92; accord, Episcopal Church Cases, supra, 45 Cal.4th at p. 477.) There is no
requirement that defendant prove the suit was intended to chill its speech or actually had
that affect. Our Supreme Court explained: “[W]e held that the plain language of the
‘arising from’ prong encompasses any action based on protected speech or petitioning
activity as defined in the statute (Navellier v. Sletten[, supra,] 29 Cal.4th [at pp.] 89-95),
rejecting proposals that we judicially engraft the statute with requirements that
defendants moving thereunder also prove the suit was intended to chill their speech
(Equilon, supra, 29 Cal.4th p. 58) or actually had that effect. (City of Cotati v.
Cashman[, supra,] 29 Cal.4th [at p.] 75.)” (Jarrow Formulas, Inc. v. LaMarche (2003)
31 Cal.4th 728, 734.)
Defendant argues it met its burden of establishing that its decision to terminate
plaintiff was an act in furtherance of protected speech or petitioning activity. We agree.
An internal investigation is an official proceeding authorized by law. (Hansen v.
Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1544, citing
Green v. Cortez (1984) 151 Cal.App.3d 1068, 1073.) Statements and writing made
during an internal investigation fall under section 425.16, subdivision (e)(1). (Hansen v.
Department of Corrections & Rehabilitation, supra, 171 Cal.App.4th at p. 1544; Tichinin
14
v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1061 [investigative reports by
surveillance subcommittee, the ensuing hearing, and subsequent resolution adopted by
the city council condemning plaintiff are enumerated in § 425.16, subds. (e)(1)-(2)];
Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383 [defamation and
intentional infliction of emotional distress claims based on city’s investigation of
plaintiff’s conduct and the ensuing determination of misconduct arose from enumerated
activity].)
Plaintiff argues the violations of Government Code section 8547.1 and Labor
Code section 1102.5, subdivision (b) arise from the termination. Plaintiff’s complaint
alleges he was terminated for reporting police misconduct to the sheriff’s department and
the Federal Bureau of Investigation. But defendant presented undisputed evidence that
former Chief Stehr asked the sheriff’s department to conduct an investigation on April
16, 2009. Chief Stehr instructed Captain Varner and Sergeant Misquez to cooperate with
the sheriff’s department’s investigation. The Burbank Police Department made its
conference rooms available to deputies interrogating Burbank police officers. Plaintiff
was paid his salary by defendant to be interviewed by the sheriff’s department. Chief
LaChasse also encouraged all Burbank Police Department officers to cooperate with the
investigations conducted by the sheriff’s department and the Federal Bureau of
Investigation. Neither Chiefs Stehr nor LaChasse knew whether plaintiff had cooperated
in the inquiry by the Federal Bureau of Investigation. At the end of the August 4, 2009
interview, plaintiff stated the Federal Bureau of Investigation had not contacted him.
The complaint acknowledges plaintiff’s termination was based on alleged
violations of the police department’s memorandum of understanding. Plaintiff challenges
defendant’s stated reason for firing him by alleging he was terminated in retaliation for
being a whistleblower. But defendant submitted uncontroverted evidence that plaintiff
was terminated for lying in the first internal affairs investigation. During the second
internal affairs investigation, plaintiff was interviewed by Mr. Gardiner. In that
interview, plaintiff admitted lying to Lieutenant Puglisi during the first internal affairs
investigation. At the completion of the second internal affairs investigation,
15
Mr. Gardiner sustained allegations against plaintiff for violations of the Burbank Police
Department’s memorandum of understanding and duty manual. Chief LaChasse made
the termination decision after concluding plaintiff was dishonest during the first internal
affairs investigation and had failed to report police misconduct. At his administrative
appeal hearing, plaintiff agreed he had a duty to report misconduct without regard for
personal safety concerns, personal feelings or friendships. Plaintiff admitted providing
false responses to Lieutenant Puglisi about misconduct associated with the Porto’s
Bakery robbery investigation. He agreed there was no legitimate reason for him to lie
during the internal affairs investigation. Plaintiff also acknowledged lying and failure to
report misconduct warranted termination.
The undisputed evidence shows defendant decided to terminate plaintiff’s
employment following an internal affairs investigation. Defendant’s investigation and
termination decision are within the enumerated conduct in section 425.16, subdivision
(e)(1). (See Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 610-612 [retaliation
claim arose from investigation, report and denial of plaintiff’s request for bilingual pay,
which are enumerated activities]; Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1397-
1399 [hearing officer’s denial of plaintiff’s grievances including communication of
adverse results is enumerated conduct under § 425.16, subd. (e)(2)]; see also Nesson v.
Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 83, overruled on
other grounds in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686,
fn. 18, 687 [radiologist’s retaliation and discrimination claims arose from hospital’s
termination of his contract based on summary suspension; all matters subject to § 425.16,
subd. (e)].)
C. Probability Of Prevailing On The Merits
Once a defendant has shown that the cause of action arose from conduct
enumerated in section 425.16, subdivision (e), the burden shifts to the plaintiff to
establish a probability of prevailing on the merits. (Episcopal Church Cases, supra, 45
16
Cal.4th at p. 477; Flatley v. Mauro, 39 Cal.4th at p. 314; Equilon, supra, 29 Cal.4th at p.
67.) Plaintiff must state and substantiate a legally sufficient claim to establish a
probability of prevailing on the claim. (§ 425.16 subd. (b)(1); Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1056; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p.
821.) Our Supreme Court explained: “Put another way, the plaintiff ‘must demonstrate
that the complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by plaintiff is
credited.’ [Citations.]” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056, quoting Wilson
v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.)
Here, plaintiff presented no declarations or other evidence to support his causes of
action. As a result, he failed to sustain his burden of proving his causes of action had
minimal merit. Thus, the special motion to strike should have been granted.
One final note is in order. The trial court indicated that in making its first prong
assessment, it could only rely upon the complaint’s allegations. However, section
425.16, subdivision (b)(2) expressly provides that in making its ruling, a trial court takes
into account the pleadings and evidence. (Equilon, supra, 29 Cal.4th at p. 67; Brill
Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329, 339, disapproved
on other grounds in Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 25.) As
can be noted, we have relied upon both the complaint’s allegations and the
uncontroverted evidence presented by defendant in conducting our first prong analysis.
D. Future Proceedings
Defendant is entitled to recover its costs and attorney fees incurred in pursuing the
special motion to strike in the trial court and on appeal. (§ 425.16, subd. (c)(1); Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1131 [attorney fees incurred in trial court]; Evans v.
Unkow (1995) 38 Cal.App.4th 1490, 1499 [attorney fees incurred on appeal].) In terms
of costs and fees incurred prior to the filing of the notice of appeal, once the remittitur
issues, defendant may file an attorney fees motion. (§ 906; see Torres v. Automobile
17
Club of So. California (1997) 15 Cal.4th 771, 776; Lindenstadt v. Staff Builders, Inc.
(1997) 55 Cal.App.4th 882, 894.) Any request for attorney fees on appeal shall be
pursued pursuant to California Rules of Court, rules 3.1702(c)(1) and 8.278(c)(1).
IV. DISPOSITION
The order denying the special motion to strike the complaint is reversed. Upon
remittitur issuance, a new order is to be entered granting the special motion to strike.
Defendant, City of Burbank, shall recover its costs and attorney’s fees from plaintiff, Pete
Allen.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
MINK, J.*
*
Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
18