Serrato v. City of Carson

Filed 4/27/07 Serrato v. City of Carson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Lee Smalley Edmon, Judge. Affirmed.

Joel A. Spivak for Plaintiff and Appellant.

Aleshire & Wynder, Colin J. Tanner and Anthony R. Taylor for Defendants and Respondents.

____________________

INTRODUCTION

Plaintiff Joseph Serrato appeals from an order granting defendants special motion to strike plaintiffs second cause of action for defamation. He contends that granting the motion was contrary to the purpose of Code of Civil Procedure section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. He further contends that granting the motion was improper, in that he demonstrated a probability of prevailing on the merits of his cause of action. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff brought this action against the City of Carson (City) and a number of individual defendants: City Manager Jerry Groomes (Groomes), City Administrative Services General Manager Jacquelyn Acosta (Acosta), City Economic Development General Manager Ron Winkler (Winkler), City employee Latoya Butler (Butler), City employee Charlotte Callegari (Callegari), City employee Maria Valenzuela (Valenzuela), and City employee Patty Rubalcava (Rubalcava). Plaintiffs first cause of action, against the City, was for constructive termination. His second cause of action, for defamation, was against all defendants. His third cause of action, against the City, was for race, age and handicap discrimination in violation of the Fair Employment and Housing Act (FEHA, Gov. Code,  12940 et seq.).

Plaintiff alleged that he was hired by the City in 1982 and promoted to Employment Development Manager in 2000. When Groomes became City Manager, Groomes began to discriminate against Hispanic employees, including plaintiff. Groomes pressured plaintiff to hire Butler in violation of City rules. Other City officials pressured plaintiff to hire Callegari. Butler and Callegari did not get along with one another, and their problems created problems for other employees as well. Plaintiff notified Winkler of the problems, but Winkler took no action.

Plaintiff further alleged that Butler told him that Callegari was laying the groundwork for a sexual harassment lawsuit against the City. Thereafter, when Callegari learned that plaintiff would be giving her an unfavorable performance evaluation, Callegari reported a sexual harassment complaint by intern Shaquita Marshall (Marshall) against plaintiff. Butler and Valenzuela corroborated Marshalls allegations that plaintiff hugged and kissed her.

Plaintiff alleged that Groomes hired attorney Kevin Dale to conduct a sexual harassment investigation. Attorney Dale concluded that plaintiff was not guilty of sexual harassment but that plaintiff nonetheless violated City rules. In conducting his investigation, however, Attorney Dale did not examine possible motivation for statements made by plaintiffs subordinates. Among those who made questionable statements were Rubalcava, Valenzuela and Butler.

Plaintiff additionally alleged that on December 17, 2003, Acosta, acting on orders from Groomes, issued plaintiff a Notice of Intent to Terminate Employment. She also told him to resign or be fired. Since he would lose his health insurance if he were fired, and he and his wife had serious medical problems and needed health insurancewhich Groomes, Acosta and Winkler were aware ofplaintiff was forced to retire rather than face termination.

Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing and received a right to sue letter. He filed a tort claim with the City, which was denied. He thereafter filed this action.

Defendants filed a special motion to strike plaintiffs second cause of action, for defamation, in his first amended complaint on the grounds their allegedly defamatory statements were made in the course of an official proceeding, were privileged, and defendants were immune from liability for the statements. In support of their motion, defendants submitted the following evidence:

In early September 2003, Marshall came to Callegaris office in tears, complaining about inappropriate behavior by plaintiff. Callegari told Marshall to speak to Winkler. On September 11, 2003, Winkler, in his position as Economic Development General Manager, received a complaint from Marshall about inappropriate behavior by plaintiff. Winkler reported the complaint to Groomes, who initiated the investigation. During the course of these events, Winkler only discussed the matter with persons involved in the investigation; he did not make any statements he knew to be false; he did not threaten to terminate plaintiff if he did not resign; and he bore no malice or bias toward plaintiff.

In his position as City Manager, Groomes responded to Marshalls complaint, which Winkler brought to his attention. He authorized an official investigation; he and Acosta hired the law firm of Liebert, Cassidy & Whitmore to conduct the investigation. When he received complaints from other employees of harassment by plaintiff, he referred them to the Liebert, Cassidy & Whitmore firm.

During the course of the investigation, Groomes only discussed the matter with persons involved in the investigation; he did not make any statements he knew to be false; he did not threaten to terminate plaintiff if he did not resign; and he bore no malice or bias toward plaintiff.

Acosta was the department director having authority to initiate disciplinary action. She only discussed the matter with persons involved in the investigation; she accurately reported allegations made to her; she did not threaten to terminate plaintiff if he did not resign; and she bore no malice or bias toward plaintiff. She served him with a notice of intent to terminate employment, but before any action was taken, plaintiff elected to retire voluntarily.

During the course of the investigation, Butler, Valenzuela and Rubalcava cooperated with investigators by truthfully and accurately reporting on plaintiffs behavior. They bore no animosity against plaintiff and did not act with malice.

Callegari, too, truthfully and accurately reported on plaintiffs behavior. She spoke to no one who was not involved in the investigation about the matter. She bore no animosity against plaintiff and did not act with malice.

In opposition to the special motion to strike, plaintiff submitted his own declaration, in which he denied any inappropriate sexual conduct with female employees or awareness that his conduct could be deemed inappropriate. He was unaware the investigation had turned into a disciplinary proceeding until he received the notice of intent to terminate employment.

Plaintiff heard from the Citys Housing Department Manager in 2002 and 2003 that Groomes and Winkler were out to get him for speaking up for another employee in City Council meetings. Additionally, when plaintiff was having trouble with his staff, especially Valenzuela, Butler, Callegari and Rubalcava, Groomes and Winkler would not respond to his requests for help.

Margarita Cruz (Cruz), the Citys former Redevelopment Manager, witnessed negative statements about plaintiff by members of the Economic Development Department staff, including Business Development Manager Lance Burkholder and Business Development Specialist Jeannie Palermo. Cruz never heard any complaints from plaintiffs employees regarding inappropriate behavior. Cruz had trouble with Marshall, who was disruptive and used poor judgment.

Attorney Dales report sustained some of the allegations against plaintiff but found insufficient evidence to sustain other allegations. While Attorney Dale concluded that plaintiff had not violated the Citys Sexual Harassment Policy, he did find plaintiff had violated Personnel Rule XIV regarding misconduct.

DISCUSSION

Code of Civil Procedure section 425.16 (hereinafter section 425.16), the anti-SLAPP statute, provides that [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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. [] . . . In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subds. (b)(1), (b)(2).)

In determining whether an anti-SLAPP motion should be granted, the court engages in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, it determines whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (City of Cotati, supra, at p. 76; Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018, disapproved on another ground in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) If so, then it must determine whether plaintiff has shown a probability of prevailing on its claim. (City of Cotati, supra, at p. 76; Drum, supra, at p. 1018.)

In order to demonstrate that the complaint contains [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech ( 425.16, subd. (b)(1), italics added), the defendant must show that the conduct by which the plaintiff claims to have been injured falls within one of the four categories specified in subdivision (e) of section 425.16. These are: (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; (4) 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. ( 425.16, subd. (e).)

The showings are similar to those made on summary judgment. The parties affidavits must contain competent admissible evidence within the personal knowledge of the declarant. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) The pleadings serve to frame the issues to be decided. (Church of Scientology, supra, at p. 655.)

On appeal, we review the trial courts determination de novo. (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) The questions are whether the defendants have satisfied their burden of establishing that section 425.16 applies (ComputerXpress, Inc., supra, at p. 999) and whether the plaintiff has satisfied his burden of making a prima facie showing of facts that, if proven at trial, would support a judgment in his favor (Schroeder, supra, at p. 184).

Plaintiff argues (1) that the anti-SLAPP statute only applies to causes of action arising out of a defendants exercise of the right to free speech; (2) California has traditionally found defamatory speech to be unprotected under the Constitution; (3) California courts have found statutes prohibiting knowingly false reports to be constitutional; therefore (4) denying defendants anti-SLAPP protection would comport with the purpose of the anti-SLAPP statute.

Plaintiffs argument is without merit. The anti-SLAPP statute applies to causes of action for defamation. (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5; see, e.g., Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926.)

Additionally, the anti-SLAPP statute applies to statements such as those at issue here, made in the course of an official investigation into allegations of misconduct. (See, e.g., Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1390; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1048-1049; Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117.) Plaintiffs trial counsel conceded as much below. Plaintiff now seeks relief from this concession, on the ground it fell below the standard of care and prejudiced him, based on his contention that defamatory statements do not come within the purview of the anti-SLAPP statute. Plaintiffs contention is wrong, his counsels concession was proper, and plaintiff is not entitled to relief therefrom.

The remaining question is whether plaintiff established a probability of prevailing on his defamation claim. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 76; Drum v. Bleau, Fox & Associates, supra, 107 Cal.App.4th at p. 1018.) Plaintiff contends that he did, but he cites no evidence in the record or case authority demonstrating such a probability. He thus has not met his burden on appeal of establishing error in the trial courts ruling. (Guthreyv.State of California (1998) 63 Cal.App.4th 1108, 1115; Mansellv. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)

Moreover, as noted by the trial court, plaintiff cannot establish a probability of prevailing on the merits. Defendants statements, made within the course of an official investigation into allegations of misconduct, were privileged (Civ. Code,  47, subd. (b); Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364-365), and defendants are immune from tort liability for those statements (Gov. Code,  821.6; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1435-1441).

The order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.