Perez v. City of Westminster



Filed 3/8/11 Perez v. City of Westminster CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

BRIAN PEREZ, Plaintiff and Appellant, v. CITY OF WESTMINSTER et al., Defendants and Respondents.

G042965 (Super. Ct. No. 30-2009-00121208) O P I N I O N

Appeal from an order of the Superior Court of Orange County, Glenda Sanders, Judge. Reversed.
John J. Gulino for Plaintiff and Appellant.
Jones & Mayer, Krista MacNevin Jee and James R. Touchstone for Defendants and Respondents.
* * *
Introduction
Brian Perez sued his employer for disciplining him in connection with Perez's failure to cooperate with the employer during an internal affairs investigation of another employee. The employer filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16 (the anti‑SLAPP statute),^[1] and the trial court granted the motion. Perez appeals.
Having reviewed the appellate record de novo, we conclude the employer failed to make a prima facie showing that the complaint arises from activity protected by the anti‑SLAPP statute. We therefore reverse.
Statement of Facts and Procedural History
Perez is a police officer employed by the City of Westminster (the City). Andrew E. Hall, Mitch Waller, Jack R. Davidson, Cliff Williams, and Mark Groh are supervisory and/or management employees of the City's police department.^[2]
On November 18, 2007, Perez, along with other City police officers, responded to a disorderly conduct call outside a Westminster bar. Perez observed a suspect being detained. The suspect later complained a police officer (not Perez) struck him in the face.
Perez was interviewed by Williams and Groh on November 25, 2007, as part of the investigation of the excessive force complaint. Perez was not represented by counsel at this interview, and was not given any warnings under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) or Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 (Lybarger). Perez advised Williams and Groh that he had not observed anyone striking the suspect or using excessive force. Perez was then told a videotape of the incident existed, which showed the suspect being struck by one of the officers, and also showed Perez had been close to the incident. Perez was admonished to be â€