Whitehall v. Cnty. of San BernardinoWhitehall v. Cnty. of San Bernardino
On appeal, the County asserts that the trial court erred in determining that plaintiff had established the second prong of the criteria to overcome a special motion to strike an Anti-SLAPP lawsuit by finding a likelihood she would prevail because the County's actions were not privileged or covered by governmental immunity. We affirm.
Plaintiff was a social worker for San Bernardino County CFS. In July 2013, another social worker, Eric B., was assigned to investigate a case in which a nine-month old baby died under suspicious circumstances. Four older children were placed in protective custody and, after the detention hearing, plaintiff was assigned to investigate for the jurisdiction/disposition hearing, in a capacity referred to as a "J/D writer."
In her capacity as J/D writer, plaintiff obtained the police report which corroborated Eric B.'s concerns for the safety of the other children, and photographs of the family home where the baby lived at the time of death, showing filthy conditions, including feces on the floor. These photographs confirmed the description of the house by social worker Eric B., and a report of doctors who examined the four siblings showed ligature marks on the
Worried that the court would have an inaccurate picture of the home, plaintiff gave the assigned deputy county counsel a computer disk containing all the photographs obtained from the police. Shortly after providing this information to county counsel, plaintiff was removed from the case and was instructed not to discuss the case with the new J/D writer, which was unusual, given that a J/D writer ordinarily included interviews and information obtained from other social workers who have worked on a case. Then plaintiff learned that the original social worker, Eric B., had been fired, allegedly for exaggerating the condition of the house and reporting the smell of methamphetamine. However, the information provided by Eric B. had been confirmed by another social worker who had assisted him during the initial response, as well as by the police report.
In the meantime, a new trial had been ordered on the alleged basis that Eric B. had lied, and the case had been assigned to a different judge. All the previously presented evidence had been marked confidential with instructions that the new judge would not view it. Concerned for the safety of the four siblings of the dead baby, plaintiff, Eric B., and the social worker who had assisted him during the initial response decided to inform the juvenile court that a fraud had been perpetrated on the court by filing a motion.
Plaintiff met with attorney Valerie Ross to discuss her potential liability, after which attorney Ross drafted a declaration for plaintiff containing that information. The three social workers filed a motion
Six days after filing the motion, plaintiff was placed on administrative leave for two months. The county's reasons for placing plaintiff on administrative leave were to initiate an internal investigation regarding plaintiff's potential violation of County rules and policies barring the disclosure of confidential information to unauthorized persons. The County asserted that social workers, including J/D writers, are overseen by supervisors and managers who are required to review the underlying case and
After being on administrative leave for approximately two months, the County decided to terminate plaintiff for violating the confidentiality policy, but Plaintiff resigned to avoid being fired. On September 25, 2015, plaintiff filed a complaint against the County and CFS based on whistleblower liability and retaliation. ( Lab. Code, § 1102.5 ) On November 25, 2015, the County filed a Special Motion to Strike the Complaint as a SLAPP Suit, pursuant to Code of Civil Procedure, section 425.16, alleging that the plaintiff's complaint was predicated upon the County's petitioning activity, and asserting plaintiff could not demonstrate a probability of prevailing because the County was immune, plaintiff had not been subjected to an adverse employment action, and because plaintiff had unclean hands.
On December 30, 2015, the motion was heard, argued, and denied by the trial court. The County appealed.
DISCUSSION
The County argues that although the trial court properly found that plaintiff's action arose out of the County's protected petitioning activity under Code of Civil Procedure section 425.16, it erroneously concluded that plaintiff had established a probability of prevailing on the merits of her whistleblower claim. Specifically, the County argues that it is immune from liability, that its investigation into plaintiffs conduct as well as its activities in the juvenile court were privileged. Additionally, the County argues that the court erred in determining that plaintiff had suffered an adverse employment action for purposes of establishing a claim of retaliation, and that the County had legitimate, non-retaliatory business reasons for its actions. Finally, the County argues that the court erroneously denied the motion to strike where plaintiff had unclean hands. We disagree.
a. Principles Relating to Anti-SLAPP Motions
SLAPP is an acronym for strategic lawsuit against public participation. ( Barrett v. Rosenthal (2006)
"In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether the defendant's act underlying the plaintiff's cause of action itself was an act in furtherance of the right of petition or free speech." ( Dyer v. Childress (2007)
The party bringing the motion to strike has the initial burden of making a prima facie showing that the lawsuit qualifies as a SLAPP suit; if it does not, the motion to strike may be summarily denied without putting the plaintiff to the burden of establishing the probability of success on the merits. ( Wilcox v. Superior Court (1994)
We review an order granting or denying a special motion to strike under Code of Civil Procedure section 425.16 de novo. ( Oasis West Realty, LLC v. Goldman (2011)
A SLAPP action arises from any act of the defendant person in furtherance of the person's right of petition or free speech. ( Code Civ. Proc., § 425.16, subd. (b)(1).) Such an act includes, among other things, 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 ( Code Civ. Proc., § 425.16, subd. (e)(3) ), or 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. ( Code Civ. Proc., § 425.16, subd. (e)(4).)
A claim "arises from" protected activity when that activity underlies or forms the basis for the claim. ( Park v. Board of Trustees of California State University (2017)
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, forming the basis for liability. ( Park v. Board of Trustees,
Thus, where board members' statements, made during a public meeting, might constitute protected activity, subsequent governmental action relating to matters discussed at the meeting do not necessarily implicate the exercise of
In San Ramon Valley Fire Protection, supra,
There, the trial court denied the motion and the reviewing court affirmed that ruling, concluding that the mere fact an action was filed after protected activity took place does not mean it arose from that activity. ( San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn., supra ,
A similar conclusion is compelled here. The County's conduct of an investigation into employee wrongdoing, like the public hearings in San Ramon Valley Fire Protection Dist., supra, may be a proper exercise of its speech or petition rights. However, the act of placing plaintiff on administrative leave, with the intention of firing her, did not arise from the County's protected activity. It was in retaliation for plaintiff's act of revealing to the juvenile
Other decisions involving whistleblower actions support our conclusion. A whistleblower claim pursuant to Labor Code section 1102.5, subdivision (b), precludes an employer from retaliating against an employee
"[T]he anti-SLAPP statute was not intended to allow an employer to use a protected activity as the means to discriminate or retaliate and thereafter capitalize on the subterfuge by bringing an anti-SLAPP motion to strike the complaint." ( Nam v. Regents of University of California (2016)
Similarly, in Martin v. Inland Empire Utilities Agency (2011)
B. Probability of Prevailing on the Merits
Where an action arises from protected activity, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits. ( Equilon Enterprises v. Consumer Cause, Inc., supra,
The plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence
The plaintiff's burden to establish the "minimal merit" prong of Code of Civil Procedure section 425.16, subdivision (b)(1) ( Navellier v. Sletten, supra,
Here, the temporal proximity between the plaintiff's report and the County's action of placing plaintiff on administrative leave reflects a direct connection. While the County claimed it was investigating plaintiff's disclosure of confidential information, this explanation was insufficient to establish a legitimate reason where the county counsel to whom the information was disclosed was the department's legal representative in the dependency action. Plaintiff thus stated a sufficient claim that the action arises from protected petitioning activity. Additionally, disclosure to the court cannot be viewed as public disclosure of confidential information where the County CFS is deemed an arm of the court, and where dependency case files are maintained confidentially by that court. Finally, as the trier of fact charged with the duty of making sensitive placement information, the County's claim of management discretion in deciding what information the court will be able to consider could call into question the legitimacy of all dependency judgments.
Having determined-albeit incorrectly-that part of plaintiff's claim was predicated upon protected conduct, the burden shifted to plaintiff to demonstrate that she has stated and substantiated a legally sufficient claim under the whistleblower statute.
The County argues that the trial court erred because of the provisions of Government Code sections 815.2, 820.2, and 821.6. However, Government Code section 815.2, subdivision (b), pertains to vicarious liability upon a public entity. (See Caldwell v. Montoya (1995)
None of these Government Code sections apply because the plaintiff's whistleblower action was not instituted against a public employee. "A wrongful termination action is viable where the employee alleges he [or she] was terminated for reporting illegal activity which could cause harm, not only to the interests of the employer but also to the public." ( Southern Cal. Rapid Transit Dist. v. Superior Court (1994)
3. Privilege
Defendant also argues that its investigation into plaintiff's misconduct was privileged. However, there is no privilege cited by the County that authorizes the cover up of an alleged fraud upon the court. It is disturbing that none of the declarations presented by the County in support of its motion alleged that plaintiff's claims of evidence manipulation were false. Social services agencies reports are treated as substantive evidence in juvenile dependency cases based on a presumption that they are prepared by disinterested parties in the regular course of their professional duties, embodying elements of objectivity and expertise lending to them a degree of reliability and trustworthiness. (See
We acknowledge that employers have the authority to discipline employees for acts of wrongdoing, and we accept the County's representations that supervisors have the final word on the nature of the evidence presented to the juvenile court in dependency cases. However, we know of no privilege that authorizes the County to present manipulated or falsified evidence, and no privilege authorizing retaliation against a public employee for disclosing a possible fraud upon the court. The County was not entitled to immunity, and its actions were not privileged.
4. Adverse Employment Action
Defendant also argues that placing plaintiff on administrative leave was not an adverse employment action because she remained on the payroll. However, plaintiff also had been removed from the dependency case to which she had been assigned as J/D writer prior to being
In determining whether a plaintiff suffered an adverse employment action, we employ the same standard of materiality that the California Supreme Court held should be applied to employment retaliation claims made under the California Fair Employment and Housing Act (FEHA). ( Patten v. Grant Joint Union High School Dist. (2005)
In Patten, an action involving a whistleblower claim under Labor Code section 1102.5, the reviewing court found there was a triable issue of fact as to whether a lateral transfer of a young principal from one school to another constituted an adverse employment action. The court noted that in context, the school district had taken actions reasonably likely to impair her job performance, notwithstanding the fact she was transferred into a comparable position. There, the lack of administrative support and scheduling and budgetary issues had to be considered along with the knowledge that the district planned to close the school to which plaintiff had been transferred. ( Patten v. Grant Joint Union High School Dist., supra,
Federal cases, while employing a slightly different standard, agree that administrative leave may constitute an adverse employment action. (See Dahlia v. Rodriguez (9th Cir. 2013)
Here, defendant's own evidence in support of its special motion to strike confirmed its intention to fire plaintiff for disclosing to the juvenile court the County's attempt to manipulate evidence in a child dependency action. The administrative leave pending the investigation, which
5. Unclean Hands
Finally, the County argues that the court erred in finding plaintiff demonstrated a probability of prevailing because her unclean hands were a
In the present case, plaintiff disclosed evidence manipulation to her attorney, whom she consulted to determine what her liability might be for signing her name and filing an altered report and allowing doctored photographs to be submitted to the court, and to ascertain what she could do to protect the children who were the subject of the dependency action in which the doctored evidence was submitted at the direction of her superiors. Because the information was disclosed in the context of seeking legal advice during a confidential communication, indeed, a privileged communication, the disclosure to the attorney does not fit the traditional "disclosure of confidential information" violation that would give rise to discipline. Instead, a more rational interpretation of the County's confidentiality policy is to preclude public dissemination of confidential information by a county employee.
Further, the disclosure to the deputy county counsel to whom the dependency case had been assigned cannot be viewed as an improper disclosure because county counsel represents the County CFS in dependency proceedings. (See Cal. Juvenile Dependency Practice (Cont. Ed. Bar 2017), § 14.3 County Counsel as Organization's Attorney, p. 1244.) As for the disclosure to the court by way of the motion, we have already noted that CFS investigates abuse and neglect as an arm of the court, so the court was entitled to the information, which is maintained in confidential files, unavailable to the public. ( Welf. & Inst. Code, §§ 825.5 [maintenance of court files and records in juvenile cases], 827 [juvenile files inspection, confidentiality].)
We do not think the County's nondisclosure policy contemplates discipline for required disclosures to the court and county counsel, where such disclosure is required in the course of representing the County and CFS in actions brought on behalf of a child within the court's jurisdiction. Otherwise, every social worker would be subject to investigation and discipline, including termination of employment, for filing any social worker's report.
6. Attorneys Fees
The County also sought attorney's fees for the anti-SLAPP motion, for work done in the trial court and in the court of appeal. Because the defendant is not the prevailing party, it is not entitled to such fees or costs.
DISPOSITION
The judgment is affirmed. Plaintiff is entitled to costs on appeal.
We concur:
CODRINGTON, J.
FIELDS, J.
Notes
The social workers submitted declarations to the juvenile court in a petition filed pursuant to Welfare and Institutions Code section 388.