Filed 9/27/18 Cal. Trucking Assn. v. Labor and Workforce Development Agency CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CALIFORNIA TRUCKING ASSOCIATION, Plaintiff and Respondent, v. THE LABOR AND WORKFORCE DEVELOPMENT AGENCY et al., Defendants and Appellants.

G055185 (Super. Ct. No. 30-2016-00893407) O P I N I O N

Appeal from an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed.

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter, Emmanuelle S. Soichet, and Gabrielle D. Boutin, Deputy Attorneys General, for Defendants and Appellants.

Steinbrecher & Span, Robert S. Span, Geoffrey T. Stover; Paul Hastings, Elena R. Baca, Stephen L. Berry, Elena R. Baca, Ryan D. Derry, and Ankush Dhupar, for Plaintiff and Respondent.

The Labor and Workforce Development Agency (LWDA), the Department of Industrial Relations (DIR), and the Division of Labor Standards Enforcement (DLSE) and their respective leaders[1] appeal from the trial court’s order denying their special motion to strike[2] four causes of action in the California Trucking Agency’s (CTA) complaint. The Labor Agencies argue the court erred by denying the special motion to strike because CTA’s claims arose from protected activity. We disagree and affirm the order.

FACTUAL SUMMARY & BACKGROUND INFORMATION[3]

I. Facts

CTA is a California corporation that represents the commercial trucking industry and the companies that provide services to those companies. CTA has over 3,600 members who operate over 350,000 trucks and transport approximately 90 percent of California’s manufactured tonnage and serve over 80 percent of California’s communities. CTA is composed of the following: individual owner-operators; small, family-owned, for-hire fleets; and global motor carriers. CTA’s members include “Authorized Carriers” that enter into contractual agreements with “Owner Drivers.”

The LWDA is a cabinet-level agency that houses several departments, boards, and panels. (Gov. Code, §§ 12800, 12813.) The LWDA’s role is to exercise general supervision over the offices’ operations and advise the Governor on and coordinate its policies and programs. (Gov. Code, §§ 15554, 15555.) David M. Lanier is its Secretary. The DIR is one of the LWDA’s constituent agencies. (Lab. Code, § 50.) The DIR’s role is to improve working conditions for California’s wage earners and to advance their opportunities for profitable employment. (Lab. Code, § 50.5.) Christine Baker is its Director. The DLSE is a division of the DIR. (Lab. Code, §§ 56, 79, 82, subd. (b).) The DLSE adjudicates administrative complaints alleging violations of state labor laws, including employees’ claims for unpaid wages. (Lab. Code, § 98.) Additionally, the DLSE maintains an “administratively and physically separate” enforcement unit “to ensure that minimum labor standards are adequately enforced[.]” (Lab. Code, § 90.5, subd. (b).) The DLSE is led by the Labor Commissioner (Commissioner), whose responsibilities include oversight of its adjudicatory operations. (Lab. Code, §§ 79-90.5). Julie Su is the Commissioner.

II. Background Information

A. Berman Hearings

In California, an employee with a wage-related dispute, including a misclassification dispute, has two primary options: the employee may seek judicial relief in a civil action, or the employee may seek administrative relief by filing a wage claim with the DLSE. (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1127-1128 (Sonic-Calabasas).) If an employee files a wage claim, the Commissioner has 30 days to notify the parties that she will accept the matter and conduct an administrative hearing, prosecute a civil action, or take no action. (Lab. Code, § 98, subd. (a).) The administrative hearing procedure, commonly known as the “‘Berman’” hearing procedure, is codified in Labor Code sections 98 to 98.8. (Sonic-Calabasas, supra,

57 Cal.4th at p. 1128.) Berman hearings serve an important policy by providing workers with an speedy, accessible, informal, and affordable method for resolving wage claims. (Sonic-Calabasas, supra, 57 Cal.4th at p. 1128.)

If the Commissioner decides to conduct an administrative hearing, a deputy labor commissioner must conduct the meeting within 90 days. (Sonic-Calabasas, supra, 57 Cal.4th at p. 1128.) Deputy labor commissioners serving as hearing officers may issue subpoenas, and control the presentation of evidence and the conduct of the hearing. (Cal. Code Regs., tit. 8, §§ 13502, 13506.) Within 15 days, the Commissioner must issue a ruling in an order, decision, or award (ODA). (Lab. Code, § 98.1.)

Within 10 days of service of the notice of ODA, a party may appeal in the superior court; review is de novo. (Lab. Code, § 98.2, subd. (a).) When an employer appeals, the employer must post a bond in the amount of the ODA to secure the award. (Lab. Code, § 98.2, subd. (b).) The purpose of the bond requirement is to discourage employers from filing frivolous appeals and hiding assets to avoid enforcement of the judgment. (Sonic-Calabasas, supra, 57 Cal.4th at p. 1129.)

B. Port Trucking Industry

The San Pedro Bay Port Complex, comprised of the Ports of Los Angeles and Long Beach (Port), is the busiest port in the United States by container volume. The cargo from the ocean freighters is typically transported over short distances by commercial trucks, i.e., drayage. Since federal deregulation in the 1980’s, trucking companies have increasingly hired truck drivers as independent contractors rather than as employees. Consequently, the percentage of truck-driver employees has dropped—from 46 percent in 1978 to 23 percent in 1996.

Over the last several decades, the independent contractor paradigm has flourished in the trucking industry and in the drayage services sector in particular. The majority of drayage services at the Port is performed by independent contractors, many of whom own their own trucks, i.e., Owner Drivers.

C. Classification Status

In the mid-2000’s, economic, religious, environmental, and union groups (Advocacy Groups) lobbied for and secured a City of Los Angeles provision designed to eliminate independent contractor relationships in trucking at the Port. In 2011, the Ninth Circuit Court of Appeals ruled federal law preempted that provision. (American Trucking Ass’ns v. City of Los Angeles (9th Cir. 2011) 660 F.3d 384, overruled on other grounds in American Trucking Ass’ns v. Los Angeles (2013) 569 U.S. 641.)

Advocacy Groups subsequently developed a new strategy to eliminate independent contractors from providing drayage services at the Port—convert independent contractors into employees by filing misclassification claims with the DLSE. Starting in 2012, Advocacy Groups, with the DLSE’s assistance, held workshops to recruit claimants to file misclassification claims with the DLSE. Subsequently, Owner Drivers filed over 1,500 claims with the DLSE, the largest number from a singly industry, alleging misclassification. Accepted claims are adjudicated in a Berman hearing.

D. DLSE

In April 2011, Su began her tenure as the DLSE’s Commissioner. Under Su’s leadership, minimum wage claims, unpaid overtime claims, and civil penalties increased in the succeeding three years. Between January 2013 and December 2016, the DLSE issued 244 ODAs from independent contractor misclassification claims of Owner Drivers against Authorized Carriers, including CTA members. None found an Owner Driver was an independent contractor—they were all employees. Additionally, of the 309 ODAs that CTA received, the average bond requirement was $119,391. Some of these ODAs have been appealed and upheld by the superior court and Second District Court of Appeal.

E. CTA’s Public Records Act (PRA) Requests

Beginning in 2003, CTA made a number of PRA requests to the Labor Agencies on behalf of its members. The Labor Agencies largely refused to comply with these requests but have provided limited, heavily redacted documents. In an e-mail dated November 22, 2015, Su wrote Gina Hester, a deputy labor commissioner, regarding driver misclassification hearings in which ODAs had not yet been issued, asking, “Are these ODAs still being reviewed by Dave Balter? Can I get a heads up if there are any surprises in the decisions?”[4] About a week later, after Hester informed Su that Balter would review the ODAs, Su e-mailed Hester, asking, “Any surprises I should be aware of before they go out? I’m sure we will hear from folks once they do.”

III. Procedural History

CTA filed a verified petition for writ of mandamus and complaint for injunctive and declaratory relief against the Labor Agencies, and Lanier, Baker, and Su in their official capacities, alleging they failed to provide impartial hearings and records pursuant to CTA’s PRA requests. It included seven causes of action, the following four of which are relevant to this appeal: the third cause of action for violation of due process under the United States Constitution; the fourth cause of action for violation of due process under the California Constitution; the sixth cause of action for declaratory relief related to due process, and the seventh cause of action for injunctive relief. The other three causes of action concerned CTA’s PRA requests.

The Labor Agencies first demurred to the third, fourth, sixth, and seventh causes of action. The Labor Agencies then filed a special motion to strike the four causes of action supported by Su’s and Hester’s declarations.

CTA filed a motion for anti-SLAPP discovery (Code Civ. Proc., § 425.16, subd. (g), all further statutory references are to the Code of Civil Procedure unless otherwise indicated.).[5] A couple months later, CTA filed oppositions to the special motion to strike and the demurrer. The opposition to the special motion to strike was supported by declarations from a CTA corporate officer, Chris Shimoda, and counsel.

At a hearing, the trial court heard argument on the three pending motions and took the matters under submission. A couple of weeks later, the trial court issued its rulings. The court denied the anti-SLAPP discovery motion as moot, denied the

anti-SLAPP motion, and sustained the demurrer with leave to amend.

The court concluded the Labor Agencies failed to establish the third, fourth, sixth, and seventh causes of action arose from protected conduct. The court reasoned “[t]he challenged claims for relief arise from the defendants’ allegedly biased Berman hearing decisions which are not protected by the anti-SLAPP statute.” The court found it important CTA did not assert claims against individual hearing officers, and CTA sued Lanier, Baker, and Su in their official capacity. The court did not address the second prong of the anti-SLAPP analysis, or rule on the Labor Agencies’ objections to CTA’s evidence.

CTA filed a first amended verified petition for writ of mandamus and complaint for declaratory and injunctive relief. The Labor Agencies appealed.

DISCUSSION

“Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.’ [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); § 425.16.)

“Anti-SLAPP motions may only target claims ‘arising from any act of [the defendant] in furtherance of the [defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .’ [Citation.] In turn, the Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest. [Citation.]” (Park, supra, 2 Cal.5th at p. 1062, fn. omitted.) Our review is de novo. (Id. at p. 1067.)

Park, supra, 2 Cal.5th 1057, is instructive. In that case, defendant university denied plaintiff assistant professor tenure, and he sued alleging national origin discrimination and failure to prevent workplace discrimination. (Id. at p. 1061.) Defendant filed a motion to strike plaintiff’s complaint, arguing his suit arose from its decision to deny him tenure and from its communications made during the tenure process. (Ibid.) The trial court denied defendant’s motion, and a divided court of appeal reversed. (Ibid.) The Park court addressed the issue of what nexus a defendant must show between the plaintiff's claim and the defendant’s protected activity to succeed on a special motion to strike. (Id. at p. 1060.)

The Park court explained as follows: “A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘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.’ [Citations.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’ [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at pp. 1062-1063.)[6]

The Park court examined a number of Court of Appeal cases, including Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (Graffiti), and San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon). The Park court opined the cases were “attuned to and [took] care to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” (Park, supra, 2 Cal.5th at p. 1064, italics added.) Later, the court stated, “[w]hat gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden . . . .” (Id. at p. 1066.) The court reasoned that “to read the ‘arising from’ requirement differently, as applying to speech leading to an action or evidencing an illicit motive, would, for a range of publicly beneficial claims, have significant impacts the Legislature likely never intended[]” because discussion and a vote at a public meeting frequently precede government decisions. (Id. at p. 1067.)

Applying the distinction to the facts before it, the Park court held plaintiff’s claim did not arise from protected activity. (Park, supra, 2 Cal.5th at pp. 1060-1061.) The elements of plaintiff’s discrimination claim were “‘(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.’ [Citation.]” (Id. at pp. 1067-1068.) The Park court explained plaintiff could have omitted allegations about communicative acts or filing a grievance and still stated the same claim because his claim “depend[ed] not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible.” (Id. at p. 1068.) Therefore, the Park court concluded as follows: “[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Id. at p. 1060.)

The writ/complaint asserted the following general allegations: After Advocacy Groups failed to secure legislation eliminating independent contractor relationships in trucking at the Port, Advocacy Groups developed a strategy to convert independent contractors into employees by filing misclassification claims with the DLSE. Advocacy Groups worked with the DLSE to recruit claimants to file misclassification claims, and Owner Drivers subsequently filed over 1,500 claims. The DLSE adjudicated the misclassification claims in Berman hearings. The common theme running through the writ/complaint was the DLSE violated CTA’s members due process rights because it failed to comply with statutorily-required deadlines and engaged in improper conduct to arrive at predetermined uniform results. Between January 2013 and December 2016, the DLSE issued 244 ODAs and all found the Owner Driver was an employee.

As to the statutory deadlines, if the Commissioner decides to conduct a Berman hearing, the hearing must be held within 90 days unless postponed for equity and fairness. (Lab. Code, § 98, subd. (a).) Here, however, “[t]he average time from filing to the first day of hearing was 529.9 days . . . .” The Commissioner must issue the ODA within 15 days of the hearing. (Lab. Code, § 98.1.) But here “[t]he average time from the conclusion of the hearing to the filing of the ODA was 93.1 day . . . .”

With respect to the improper conduct, the DLSE failed to apply the controlling law articulated in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, and instead applied “a new standard of general application” to arrive at a predetermined conclusion. Prior to 2013, a Berman hearing would typically last multiple days, but beginning in 2013, the DLSE began to schedule three Berman hearings in one day, thus preventing Authorized Carriers from presenting a defense. During the Berman hearings, “[h]earing [o]fficers have spent time scrolling through computers (seemingly reviewing e[-]mail) or looking at their phones during the presentation of the Authorized Carriers’ evidence.” Su directs review of ODA’s “at several levels” before they are issued to ensure there are no “‘surprises.’” Finally, although ODAs are subject to de novo judicial review, the skyrocketing awards result in an average bond requirement of $119,391.

The third cause of action incorporated by reference the above allegations and alleged a violation of federal due process rights. (U.S. Const., 14th Amend.) It argued the DLSE failed to provide an impartial tribunal when adjudicating the misclassification claims, failed to comply with statutory deadlines, and failed to apply the applicable law to the evidence offered at the hearings. It requested the Labor Agencies reform their processes when adjudicating Berman hearings and vacate or withdraw all ODAs issued against CTA members after January 1, 2013.

The fourth cause of action incorporated by reference the above allegations and alleged a violation of California due process rights. (Cal. Const., art. I, § 7.) Its allegations and request for relief were identical to the third cause of action.

The sixth cause of action incorporated by reference the above allegations and stated an action for declaratory relief based on due process rights. It alleged the Labor Agencies had not provided impartial Berman hearings and requested the court provide a judicial declaration they “have not provided impartial Berman [h]earing forums.”

The seventh cause of action incorporated by reference the above allegations and stated an action for injunctive relief. It alleged CTA members were irreparably harmed by the lack of impartial Berman hearings and there was no adequate remedy at law because of those hearings and having to post bonds in the average amount of $119,391. It requested a permanent injunction enjoining enforcement of the bond requirement and the DLSE from conducting Berman hearings until the DLSE demonstrated it can conduct them impartially.

The prayer for relief requested the Labor Agencies reform their processes when adjudicating Berman hearings and vacate or withdraw all ODAs issued against CTA members after January 1, 2013. Additionally, it asked the court to provide a judicial declaration that the Labor Agencies have not provided impartial Berman hearings. It also sought a permanent injunction enjoining enforcement of the bond requirement and the DLSE from conducting Berman hearings until the DLSE demonstrated it can conduct them impartially.

As relevant here, CTA alleged four claims, all asserting federal and California due process violations. A procedural due process claim has three elements: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of process.” (Portman v. County of Santa Clara

(9th Cir. 1993) 995 F.2d 898, 904.) Due process requires notice and the opportunity to be heard. (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013)

57 Cal.4th 197, 213.) The opportunity to be heard must be at a meaningful time and in a meaningful manner. (Id. at p. 212.) When due process requires a hearing, the hearing officer must be impartial. (Ibid.)

The Labor Agencies argue the gravamen of CTA’s due process claims arise from the process of adjudicating the Berman hearings[7]and that process is protected by several parts of the anti-SLAPP statute. First, it contends Berman hearing officers’ oral and written statements, i.e., relating to scheduling, presentation of evidence, and conducting hearings, are protected activity. (§ 425.16, subd. (e)(1) & (2) [written or oral statement before legislative, executive, or judicial proceeding].) Second, it claims section 425.16, subdivision (e)(4), protects all other conduct in processing, hearing, and considering Owner Drivers’ claims in Berman hearings. (§ 425.16, subd. (e)(4) [any other conduct furthers right of petition or free speech public issue or public interest].)

Unlike Park, we are not faced with the issue of whether one government decision was impermissible based on a discriminatory motive. Instead, we are faced with the issue of whether numerous government actions were impermissible based on an improper motive. But Park is instructive nonetheless because it clarified we must look to a claim’s elements and strike a claim “only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060, italics added.)

The elements of CTA’s due process claims do not depend on Berman hearing officers’ oral or written statements relating to the Berman hearing process, or their statements in the “actual individual ODA decisions themselves.” They could not because CTA did not allege claims against individual hearing officers. Similar to Park, the elements of CTA’s due process claims depend on the manner in which the DLSE adjudicated Berman hearings and whether it adjudicated those claims and issued ODAs based on an improper motive. (Park, supra, 2 Cal.5th at p. 1068 [university’s decision denying tenure based on alleged improper motive not proper subject of special motion to strike]; Graffiti, supra, 181 Cal.App.4th at p. 1224 [city’s termination of contract with plaintiff and award of new contract to plaintiff’s competitor based on competitive bidding laws that guard against favoritism, fraud, and corruption].)

To prevail on its due process claims, CTA must demonstrate the third element, a lack of process, i.e., infringement of the right to be heard at a meaningful time and in a meaningful manner by an impartial hearing officer. As to the right to be heard at a meaningful time and in a meaningful manner, CTA alleged the following: The time from filing to hearing should have been 90 days but the average time was 529 days; The time from hearing to the ODA should have been 15 days but the average time was

93 days; the DLSE held hearings for multiple drivers in a single hearing; the DLSE held three hearings in one day; and Authorized Carriers were limited to one hour to present a defense. With respect to an impartial hearing officer, CTA alleged hearing officers did the following: failed to apply applicable law; failed to provide analysis; gave more weight to facts driver was an employee; relied on facts without evidentiary support; misstated facts; ignored countervailing evidence; and ignored proceedings and scrolled through computer or looked at cell phone. As the Park court explained this was merely “evidence of liability.” (Park, supra, 2 Cal.5th at p. 1060.) CTA did not complain of the Labor Agencies’ speech or petitioning activity itself.

The DLSE may have issued the ODAs in writing but that communication does not convert CTA’s suit to one arising from speech. (Park, supra, 2 Cal.5th at p. 1060 [claim not subject to special motion to strike when “thereafter communicated by means of speech or petitioning activity”].) CTA does not challenge individual ODAs. And the fact Owner Drivers may seek de novo review of ODAs in the superior court does not alter our conclusion. CTA was justified in filing a writ/complaint on behalf of all its members to correct what it perceived as systemic due process violations in the Berman hearing process.

Finally, Su’s alleged statements in her e-mail to Hester may supply evidence of bias, but that does not convert those statements themselves into the basis for liability. As the trial court correctly observed, CTA’s complaint is based on the “allegedly biased Berman hearing decisions.”

As the San Ramon, supra, 125 Cal.App.4th at page 354, court stated, “Acts of governance mandated by law, without more, are not exercises of free speech or petition.” The San Ramon court reasoned that if mandamus petitions challenging government decisions were routinely subject to a special motion to strike it would chill legitimate judicial oversight of alleged administrative and legislative abuses of power. (Id. at p. 358.) The Labor Agencies’ special motion to strike, if successful, would chill CTA’s right to have the judiciary review the Berman hearing process. This would be “squarely contrary to the underlying legislative intent behind section 425.16.” (Ibid.)

The Labor Agencies rely on Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 (Briggs), to support its argument any misclassification claim at a Berman hearing is a public issue or matter of public interest. The Labor Agencies cite to the following statement from Briggs, supra, 19 Cal.4th at page 1118, “Any matter pending before an official proceeding possesses some measure of ‘public significance’ owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights section 425.16 was intended to protect.” The Labor Agencies’ reliance on Briggs is misplaced. First, in Briggs, the California Supreme Court held a defendant making a motion to strike under section 425.16, subdivision (e)(1) and (2), need not separately demonstrate the statement concerned an issue of public significance. (Briggs, supra, 19 Cal.4th at pp. 1109, 1123.) Briggs did not concern section 425.16, subdivision (e)(4), the subdivision the Labor Agencies cite to when discussing Briggs. Second, section 425.16, subdivision (e)(4), provides that protected activity includes “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.” The Labor Agencies’ conduct was not exercising its right of petition, it was charged with adjudicating Berman hearings, and as we explain above, the Labor Agencies’ speech was not the wrong CTA complained of.

The Labor Agencies also rely on Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos), to argue CTA’s due process claims arise from adjudication of Owner Drivers’ claims at Berman hearings and thus, furthers their right to speech and petition. The Labor Agencies’ reliance on Vergos is misplaced because CTA did not sue any individual hearing officers for comments made. As the Park court stated, “Vergos does not stand for the proposition that a suit alleging an entity has made a discriminatory decision necessarily also arises from any statements by individuals that may precede that decision, or from the subsequent communication of the decision that may follow.” (Park, supra, 2 Cal.5th at p. 1070.)

It is true Vargas v. City of Salinas (2009) 46 Cal.4th 1, 18, holds a public entity may invoke section 425.16’s protections. However, the public entity must still establish the first prong requirement that the challenged allegations or claims arise from protected activity as the court in Park, supra, 2 Cal.5th 1057, clarified the required nexus. Finally, the Labor Agencies assert CTA’s claims are governed by section 425.16 because the Labor Agencies’ conduct in adjudicating the Berman hearings furthers Owner Drivers’ First Amendment right to petition the government for redress of their wage claims against Authorized Carriers. Section 425.16, subdivision (b)(1), provides, “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 . . . .” The plain language demonstrates a person may bring a special motion to strike a cause of action “arising from” that persons act of free speech or right of petition, and not someone else’s act of free speech or write of petition. The Labor Agencies cannot assert Owner Driver’s First Amendment rights.

We note, “‘The original purpose of the anti-SLAPP statute was to protect nonprofit corporations and common citizens “from large corporate entities and trade associations” in petitioning government [citation]. But now it has been broadened to protect large corporations and trade associations [citation], and even governmental entities “when such entities are sued on the basis of statements or activities engaged in by the public entity or its public officials in their official capacity.” [Citation.]” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1349-1350.) This special motion to strike is a perfect example of how far we have strayed past the anti-SLAPP’s original purpose where we have the State of California arguing a large trade association has infringed on California’s right to free speech and petition.

Because we conclude the Labor Agencies have not satisfied the first prong of the anti-SLAPP analysis, we need not address the second prong. Thus, the trial court properly denied the Labor Agencies’ special motion to strike CTA’s complaint.

DISPOSITION

The order is affirmed. Respondent is awarded its costs on appeal.

O’LEARY, P. J.

I CONCUR:

MOORE, J.