8 Cal. App. 5th 832
Cal. Ct. App.2017Background
- In the 1980s John was convicted twice of sexual offenses; both convictions were reversed on appeal and ultimately dismissed, but State DOJ agents repeatedly informed him he had to register as a sex offender and required signature on registration forms.
- John continued to register periodically and his information was maintained in California’s sex offender registry and disseminated (including via Megan’s Law); the State DOJ communicated with local law enforcement about his registration.
- In August 2014 SDPD arrested John for alleged failure to register; a public defender later showed he was not required to register and the court found factual innocence and sealed/destroyed arrest records; his name was removed from the official registry.
- In June 2015 John and Jane Doe sued the State, County, and City for Bane Act violations, negligence, false/wrongful imprisonment, defamation, and loss of consortium.
- The State (through DOJ) moved to strike under the anti‑SLAPP statute (§ 425.16), arguing the claims arose from protected petition/speech, and that the State and its employees were immune (Gov. Code §§ 815.2, 821.6) and litigation‑privileged. The trial court granted the motion; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State (public entity) may invoke anti‑SLAPP protections | The anti‑SLAPP statute's term "person" does not include the State; no private analogue to State activity | Vargas and subsequent authority allow public entities to seek anti‑SLAPP relief; public duties have private analogues (e.g., background screening) | State DOJ may file an anti‑SLAPP motion (anti‑SLAPP applies to public entities) |
| Whether plaintiffs' claims "arose from" protected petition/speech activity | State's conduct was coercive and forced John to register; thus claims arise from wrongful coercion, not protected speech | State's communications, maintenance of records, and disclosures are statements/acts in furtherance of petition/speech on a public issue (sex‑offender registry) | The claims arose from protected speech/petitioning connected to public issues; prong one satisfied |
| Whether plaintiffs showed a probability of prevailing on Bane Act (Civ. Code § 52.1) claims | Threats to prosecute and maintain/publish registration amounted to "threat, intimidation, or coercion" interfering with constitutional rights | Section 52.1 requires independent threatening/violent conduct beyond routine threat of prosecution; mere threats to arrest/register are insufficient | Plaintiffs failed to show the requisite independent threat/coercion; no probability of prevailing on Bane Act claims |
| Whether negligence, false imprisonment, and defamation claims survive (immunity) | State negligently maintained/published inaccurate registration and caused wrongful arrest/publication | Gov. Code § 821.6 immunizes public employees for instituting/prosecuting proceedings or preparatory investigative acts; publishing/maintaining registry is essential to prosecutorial function; vicarious immunity for State (Gov. Code § 815.2) | State employees protected by § 821.6; State not liable vicariously under § 815.2; plaintiffs failed to show probability of prevailing |
| Whether loss of consortium claim survives | Jane's consortium claim depends on success of spouse's claims | Same immunity and failure‑to‑show issues apply | Loss of consortium fails for same reasons as John’s claims |
Key Cases Cited
- Vargas v. City of Salinas, 46 Cal.4th 1 (Cal. 2009) (anti‑SLAPP protection may extend to governmental entities and public officials)
- Cross v. Cooper, 197 Cal.App.4th 357 (Cal. Ct. App. 2011) (public interest in disclosure of registered sex offender locations)
- Mendoza v. ADP Screening & Selection Servs., Inc., 182 Cal.App.4th 1644 (Cal. Ct. App. 2010) (providing employment‑screening reports is protected activity under anti‑SLAPP)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (illegal conduct exception to anti‑SLAPP analysis discussed)
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (Cal. 2002) (no requirement that defendant show intent to chill to satisfy prong one)
- Taus v. Loftus, 40 Cal.4th 683 (Cal. 2007) (plaintiff must show legal sufficiency and prima facie evidence to survive anti‑SLAPP)
- Shoyoye v. County of Los Angeles, 203 Cal.App.4th 947 (Cal. Ct. App. 2012) (section 52.1 requires independent threat, intimidation, or coercion beyond arrest/detention)
- Wright v. Superior Court, 15 Cal.4th 521 (Cal. 1997) (statutory duty to register and ongoing nature of sex‑offender registration obligations)
- Gillan v. City of San Marino, 147 Cal.App.4th 3 (Cal. Ct. App. 2007) (broad construction of Gov. Code § 821.6 immunity)