2018-00242031-CU-MC

Dina Padilla vs. Commission on Judicial Performance

Nature of Proceeding: Hearing on Demurrer

Filed By: Onyeagbako, Maureen C.

Defendants Commission on Judicial Performance (the “Commission”), its Director and Chief Counsel Gregory Dresser (“Dresser”), the California Department of Justice (“DOJ”), and Attorney General Xavier Becerra (“AG Becerra”) (collectively, “Defendants”) demurrer to plaintiffs Dina Padilla and Floyd Chodosh’ (collectively, “Plaintiffs”) complaint is SUSTAINED without and with leave to amend as set forth below.

Plaintiffs’ request for judicial notice is granted as to item (1), but denied as to item (2). In taking judicial notice of item (1), the court accepts the fact of its existence, not the truth of its contents. As to item (2), “Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Huitt v. Southern California Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn. 10.)

Factual and Procedural Background

In this action, plaintiffs Dina Padilla and Floyd Chodosh (collectively, “Plaintiffs”) allege Defendants have failed to take adequate action in response to reports of judicial misconduct and improperly hid the nature of its investigations from the public. Plaintiffs also allege Defendants violated the state constitution, violated the separation of powers, wasted taxpayer funds, and misused public resources.

Plaintiffs’ complaint contains nine causes of action. Causes of actions one through four allege constitutional breaches; five through seven allege wrongful public expenditure; eight alleges misuses of the Commission for political purposes in violation of Government Code § 8314; and nine seeks declaratory relief.

Specifically, the nine causes of action are labeled as follows:

(1) Violation of People’s Right of Access to Information (Calif. Const. Art. I, sec. 3(b)(1) (against the Commission);

(2) Breach of Constitutional Duty to Report Judge Crime to Prosecuting Authorities (Calif. Const. Art. VI § 18(m) (against the Commission);

(3) Breach of Separation of Powers (against all Defendants);
(4) Citizen Complaint for CJP Breach of Duty to Report Submitted Proven Judge Crime (Const. Art. VI § 18(m); Code of Judicial Ethics (against the Commission);
(5) Taxpayer Lawsuit – California Common Law (against the Commission);

(6) Taxpayer Lawsuit – California Common Law (against the AG Becerra);
(7) Code Civ. Proc. § 526a – Taxpayer Lawsuit (against all Defendants);
(8) Violation of Govt. Code § 8314, allowing and causing use of CJP for political activity (against Dresser in his official capacity); and
(9) Declaratory Relief (Calif. Const. Art. VI § 10; Code of Civil Procedure § 1060 (against all Defendants).

Defendants now demur to each cause of action on the grounds the complaint does not state facts sufficient to constitute a cause of action, misjoins defendants, and is uncertain.

Legal Standard

The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. ( Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App.

3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

Director Dresser

Defendants first contend Director Dresser is absolutely immune from suit pursuant to the California Constitution, Art. VI, § 18(h), which provides “Members of the commission [on Judicial Performance], the commission staff, and the examiners and investigators employed by the commission shall be absolutely immune from suit for all conduct at any time in the course of their official duties.” Defendants contend the complaint makes clear Dresser is being sued in his official capacity and the allegations do no allege how Dresser exceeded the scope of his official duties.

The Court agrees and Plaintiffs concede to this argument. (Oppo. at 3:21-23; 14:1-6.)

This argument applies to the eighth cause of action – Violation of Govt. Code § 8314, allowing and causing use of CJP for political activity – which is brought only against defendant Dresser, and only in his official capacity.

While Plaintiffs contend they will “amend to sue Mr. Dresser individually,” they fail to explain how they can amend to allege that Dresser exceeded the scope of his official duties. Only if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment, is it then an abuse of discretion to sustain a demurrer without leave to amend. (Aubry v. Tri-City Hospital Dist., (1992) 2 Cal.4th 962, 967.) The burden of proving that such a reasonable possibility exists is squarely on the plaintiff, who must demonstrate that he could amend the complaint and how the amendment would change the legal effect of his pleading. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349-350.) The rule of liberal allowance of amendment retreats where plaintiff can suggest no legal theory or state of facts which they wish to add by way of amendment. See, HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513, fn. 3; Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.) Therefore, the demurrer to the eighth cause of action and as to Dresser is SUSTAINED without leave to amend.

First Cause of Action – Violation of People’s Right of Access to Information (Calif. Const. Art. I, sec. 3(b)(1) (against the Commission)

Defendants contend the first cause of action alleges the Commission has unconstitutionally denied the public access to the State Auditor’s investigation of the Commission. (Compl. ¶¶ 107-141.) Defendants then reason this claim fails as a matter of law because there is no constitutional right of access to information about Commission investigations. (Adams v. Comm’n on Judicial Performance (1994) 8 Cal.4th 630, 649.)

In opposition, Plaintiffs contend they do not seek investigatory file information, but seek information into the nature of Commission performance. Plaintiffs, however, fail to cite to any specific allegations in the complaint and the complaint is so muddled that the Court cannot decipher exactly what is being alleged. Accordingly, the demurrer is

SUSTAINED on the grounds of uncertainty, with leave to amend.

Second Cause of Action – Breach of Constitutional Duty to Report Judge Crime to Prosecuting Authorities (Calif. Const. Art. VI § 18(m) (against the Commission) and Fourth Cause of Action – Citizen Complaint for CJP Breach of Duty to Report Submitted Proven Judge Crime (Const. Art. VI § 18(m); Code of Judicial Ethics (against the Commission)

In the second and fourth causes of action, Plaintiffs allege the Commission violated the California Constitution when it failed to report Judge Moss to prosecutors despite being presented with evidence of alleged “judge crime.” (Compl. ¶¶ 143, 152, 157, 168-169, 190, 199.) Defendants contend these claims fail because the Constitution does not require the Commission to refer complaints to prosecuting authorities. (See Cal. Const. Art. VI § 18.) The Court has attempted to decipher Plaintiffs’ opposition, but the opposition is all but incomprehensible.

Based on the foregoing, the demurrer is essentially unopposed. The demurrer to the second and fourth causes of action is SUSTAINED with leave to amend.

Third Cause of Action – Breach of Separation of Powers (against all Defendants)

Plaintiffs’ third cause of action is difficult to follow, but appears to allege the Attorney General has “abdicated [his] duty and role to prosecute judge crime” to the Commission, thereby making the Commission the “sole receptacle for public complaints about possible judge crime.” (Compl. ¶¶ 178, 179.)

To establish a separation-of-powers violation, Plaintiffs must show an exercise of powers that the California Constitution has not given the Attorney General or the commission. (See Adams, supra, 8 Cal.4th at p. 649.) Under the Constitution, “[t]he powers of State government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. Ill, § 3.) Plaintiffs have alleged no such exercise. Rather, the alleged acts in the complaint are entirely consistent with the California Constitution, which expressly delegates the work of investigating judicial misconduct to the commission. (See 21 Cal. Const., art. VI, § 18; Adams, supra, 8 Cal.4th at p. 649 [commission’s exercise of authority as granted by Constitution does not contravene separation of powers].) And none of the allegations about Defendants indicate that they have exceeded their constitutional authority.

Plaintiffs set forth no persuasive or cohesive argument in opposition. The demurrer is SUSTAINED with leave to amend as this is the first challenge to the pleading.

Fifth, Sixth, and Seventh Causes of Action for Tax Payer Lawsuit

Plaintiffs assert “taxpayer” standing against the commission and the Attorney General under the common law (fifth and sixth causes of action) and against all Defendants under Code of Civil Procedure section 526a (seventh cause of action). Plaintiffs allege that the Commission’s exercise of discretion over whether to refer judges to prosecuting authorities is “not within the constitutional and lawful power or right” of the commission. (Compl. ¶ 211.) Plaintiffs also claim that the commission “unlawfully utilize[d] its resources for political activity to undermine” a candidate for Attorney General, retired Judge Steven Bailey. (Id. ¶ 214.) Plaintiffs also state the Attorney

General “does not devote resources to the prosecution of judge crime, while at the same time the [Attorney General] uses its resources to defend [the commission’s] unconstitutional positions in Eicherly v. C/P.” (Id. ¶ 229.) They further allege that the commission and Attorney General “engage in collusive and ultra vires acts and failures, for the purpose and with the effect of eliminating or minimizing the criminal prosecution of judges as to

whom evidence [the commission] receives from the public evidence of possible judge crime.” (Id. ¶ 205; see also id. ¶¶ 211, 213 [alleging that the commission suppresses and conceals reports received from the public of possible “judge crime”].) And they assert that the Attorney General’s “abdication” is “ultra vires from its constitutional purpose and mandate.” (Id. ¶ 223.)

Defendants contend that a taxpayer lawsuit may only be maintained if the government agency that holds the claim has a duty to act, but refuses to do so. In turn, because the duties of the Commission and Attorney General alleged in the complaint are discretionary, Plaintiffs lack taxpayer standing. (San Bernadino County v. Superior Court (2015) 239 Cal.App.4th 679, 686 (“Nevertheless, under either Code of Civil Procedure section 526a or the common law, “[t]axpayer suits are authorized only if the government body has a duty to act and has refused to do so. If it has discretion and chooses not to act, the courts may not interfere with that decision.”)

“It has long been held that a government entity’s decision whether to pursue a legal claim involves the sort of discretion that falls outside the parameters of waste under section 526a and cannot be enjoined by mandate.” (Daily Journal Corp. v. City of Los Angeles (2009) 172 Cal.App.4th 1550, 1558.) And because deciding whether to pursue a legal claim is generally an exercise of discretion, rather than “a duty specifically enjoined,” the common law too does not normally provide the taxpayer a cause of action to pursue a legal claim on behalf of the government entity. (San Bernadino County, supra, at 686-687.)

Plaintiffs’ opposition does nothing to dispute the foregoing. The demurrer is SUSTAINED with leave to amend.

Ninth Cause of Action – Declaratory Relief (Calif. Const. Art. VI § 10; Code of Civil Procedure § 1060 (against all Defendants)

Generally, declaratory relief is not an independent cause of action but a form of recovery. (See McDowell v. Watson (1997) 59 Cal. App. 4th 1155, 1159; see also Rosenfeld v. JPMorgan Chase Bank, N.A. (2010) 732 F. Supp. 2d 952, 975 (dismissing plaintiffs cause of action for declaratory relief because it is a remedy and not a cause of action). Thus, Plaintiff is not entitled to declaratory relief absent an independent viable claim. (Lane v. Vitek Real Estate Indus. Group (2010) 713 F. Supp. 2d 1092, 1101; see also Phipps v. Wells Fargo Bank, N.A. (2011) 2011 U.S. Dist. LEXIS 10550 at *50-51.) “Whether a claim presents an ‘actual controversy’ within the meaning of [CCP] section 1060 is a question of law….” (Environ’l Defense Proj. of

Sierra County v. County of Sierra (2008) 159 Cal. App.4th 877, 885.)

As causes of action one through seven have been sustained with leave to amend, this cause of action must also be SUSTAINED with leave to amend.

Conclusion

The demurrer is SUSTAINED without leave to amend as to the eighth cause of action and as to Mr. Dresser and SUSTAINED with leave to amend as to the remaining causes of action.

Plaintiffs may file and serve a First Amended Complaint no later than February 4, 2019. (Although not required by statute or court rule, Plaintiffs are directed to present the clerk a copy of this ruling at the time of filing the First Amended Complaint.)

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.

Item 8 2018-00242031-CU-MC

Dina Padilla vs. Commission on Judicial Performance

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Onyeagbako, Maureen C.

Defendants Commission on Judicial Performance (the “Commission”), its Director and Chief Counsel Gregory Dresser (“Dresser”), the California Department of Justice (“DOJ”), and Attorney General Xavier Becerra (“AG Becerra”) (collectively, “Defendants”) special motion to strike is DENIED.

Moving party served the moving papers on January 4, 2019, by mail and electronic mail, which, counting backward from the date of hearing pursuant to Code of Civil Procedure § 1005, was only 14 court days prior to hearing. Pursuant to Code of Civil Procedure § 1005(b), moving party was required to mail-serve the moving papers 16 court days plus five additional calendar days prior to the date of hearing if mail-served or two additional calendar days if served by overnight delivery. While plaintiffs raised this issue in their opposition, they also provided a substantive opposition, thereby demonstrating no prejudice has been suffered due to the defective service. Therefore, the Court need not drop this motion for defective service, but will rule on the merits as follows.

Factual and Procedural Background

In this action, plaintiffs Dina Padilla and Floyd Chodosh (collectively, “Plaintiffs”) allege Defendants have failed to take adequate action in response to reports of judicial misconduct and improperly hid the nature of its investigations from the public. Plaintiffs also allege Defendants violated the state constitution, violated the separation of powers, wasted taxpayer funds, and misused public resources.

Plaintiffs’ complaint contains nine causes of action. Causes of actions one through four allege constitutional breaches; five through seven allege wrongful public expenditure; eight alleges misuses of the Commission for political purposes in violation of Government Code § 8314; and nine seeks declaratory relief.

Specifically, the nine causes of action are labeled as follows:

(1) Violation of People’s Right of Access to Information (Calif. Const. Art. I, sec. 3(b)(1) (against the Commission);

(2) Breach of Constitutional Duty to Report Judge Crime to Prosecuting

Authorities (Calif. Const. Art. VI § 18(m) (against the Commission);

(3) Breach of Separation of Powers (against all Defendants);

(4) Citizen Complaint for CJP Breach of Duty to Report Submitted Proven Judge Crime (Const. Art. VI § 18(m); Code of Judicial Ethics (against the Commission);

(5) Taxpayer Lawsuit – California Common Law (against the Commission);
(6) Taxpayer Lawsuit – California Common Law (against the AG Becerra);

(7) Code Civ. Proc. § 526a – Taxpayer Lawsuit (against all Defendants);
(8) Violation of Govt. Code § 8314, allowing and causing use of CJP for political activity (against Dresser in his official capacity); and
(9) Declaratory Relief (Calif. Const. Art. VI § 10; Code of Civil Procedure § 1060 (against all Defendants).

Defendants now move to strike the complaint pursuant to CCP § 425.16.

Legal Standard

The California legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action that are brought to chill the valid exercise of the constitutional rights to free speech and to petition the government for redress of grievances. (See Rusheen v Cohen (2006) 37 Cal.4th 1048, 1055-1056.) “The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides whether the defendant moving to strike has made a threshold showing that the challenged cause of action is one “arising from” protected activity. If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. Only a cause of action that satisfies both prongs of the anti-SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 [citations omitted].) Indeed, 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.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060; see Greco v. Greco (2016) 2 Cal. App. 5th 810, 819-820.)

In order to sustain the initial burden on an anti-SLAPP motion, a defendant need only show that plaintiff’s lawsuit “arises from” defendant’s exercise of free speech or petition rights as defined in Section 425.16(e). (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) In other words, Defendants only need to make a prima facie showing that Plaintiff’s FAC “arises from” their constitutionally-protected free speech or petition activity. (Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) “When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.” (Baral v. Schnitt (2016) 1 Cal. 5th 376, 396.) “While an anti -SLAPP motion may challenge any claim for relief founded on allegations of protected activity, it does not reach claims based on unprotected activity.” (Id. at 382.) “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Id.)

In order to satisfy the second prong, a plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (

Oasis West Realty, LLC v. Goldman, supra, at pp. 811, 820.) In considering the second prong, the court “accept[s] as true the evidence favorable to the plaintiff and evaluate[s] the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” (Id. citations omitted.)

If the plaintiff’s showing is not sufficient to sustain a favorable judgment, “the allegations supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5 376, 396.)

These provisions apply to SLAPP suits brought against public entities and public employees. (See San Ramon Valley Fire Prot. Dist. v Contra Costa County Employees’ Ret Ass’n (2004) 125 Cal.App.4th 343, 353; see also City of Cotati v. Cashman (2002) 29 Cal. 4th 69.)

First Prong – Arising from Protected Speech

Defendants contend the alleged wrongful conduct falls within all four categories of protected speech under CCP § 425.16.

Pursuant to CCP § 425.16(e), an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial body, 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, or’
(4) 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.” (CCP § 425.16(e).)

In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier, supra, at 89.) The “principal thrust or gravamen” of the claim determines whether section 425.16 applies, not the title of the cause of action. (See Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.)

425.16(e)(1)

CCP § 425.16(e)(1) and (e)(2) “encompass[ ] any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.)

First, Defendants contend § 425.16(e)(1) applies because under the eighth cause of action (Violation of Govt. Code § 8314, allowing and causing use of CJP for political activity) Plaintiffs rely on eleven charges the Commission filed against Judge Bailey (Compl. ¶¶ 251-275) and a statement made by the Commission and AG Becerra in a

separate unrelated litigation that judge crime victim complainants can be denied all access to information about their complaint (Comp. ¶ 19). Defendants contend the Commission’s charges against Judge Bailey and the statements made in a separate litigation are protected statements and petitioning activity under subdivision (e)(1). Defendants then broadly conclude the Court should strike “all related causes of action, including the first, fifth, sixth, seventh, eighth, and ninth causes of action” without any in depth analysis or explanation. (Memo. at 13:15-16.)

In opposition, Plaintiffs contend the complaint does not challenge particular or certain of Defendants’ “oral or written” statements. Rather, Plaintiffs contend it challenges Defendants’ wrongful actions taken in breach of the California Constitution and laws. Plaintiffs reason the complaint “seeks to stop alleged transgressions that flow from CJP and AG official action and inaction. The “activity” is agency decision making; not free speech advocacy.” (Oppo. at 6:5-7.)

In support, Plaintiffs cite to San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343. In San Ramon, a fire district challenged the county retirement board’s decision to increase pension contributions. The Court affirmed the trial court’s anti-SLAPP denial finding that “the fact that a complaint alleges that a public entity’s action was taken as a result of a majority vote of its constituent members does not mean that the litigation challenging that action arose from protected activity, where the measure itself is not an exercise of free speech or petition. Acts of governance mandated by law, without more, are not exercises of free speech or petition. 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.” (San Ramon, supra, at 354.)

Here, the Court is persuaded that the charges lodged against Judge Bailey are not an act in furtherance of the right of petition or free speech, but are akin to an act of governance. Further, even if the alleged statement made by the Commission and AG Becerra in a separate litigation could be deemed protected speech, it is not the gravamen of the eighth cause of action or any other causes of action. Plaintiffs’ allegations concern government action or inaction, and how such action/inaction constitutes alleged constitutional violations and breaches of duty, not any speech protected by subdivision (e)(1).

425.16(e)(2)

Defendants next contend subdivision (e)(2) applies because Plaintiffs object to Commission statements about confidential investigations and acts in furtherance of those statements. (See, e.g., Compl. ¶ 19(1) [“CJP asserts ‘absolute confidentiality’ against individuals that complain about a judge. CJP will not divulge any information to the complainant about status of the judge complaint.”], ¶ 121 [“CJP persists with its incorrect constitutional view that it has ultimate power and right to cloak itself with ‘absolute’ confidentiality as to the people’s business it conducts, in the face of substantial evidence that it does not fulfill its public purpose or discharge its duties.”], ¶ 122 [“In another justification for its clandestineness, CJP points to Art. VI, sec. 18(i)(l) [.]”]; see also id. ¶ 78 [“Inquiry to CJP about the complaint status yields terse statement the complaint is still ‘under consideration'”], citing 18 Exh. K.)

Defendants contend because the Commission’s statements about the confidentiality of its investigations are made in connection with the review or consideration of alleged

judicial misconduct, “all related causes of action should be stricken.” First, Defendants do not clearly explain to which cause(s) of action this argument applies. However, as the cited paragraphs occur under the first cause of action, the Court presumes it is the first cause of action at issue for purposes of this argument. The “related causes of action” also are left unexplained by Defendants, leaving the Court to guess as to which “related causes of action” Defendants refer.

Nonetheless, despite the lack of clarity in the moving papers, the Court is not persuaded the gravamen of the first cause of action is that the Commission’s statements about confidentiality are the violation. Rather, it is the Commission’s refusal to grant the public access to certain information that is at the heart of the first cause of action. Such an action (or inaction) is not protected speech. Defendants’ additional argument regarding the statement in a letter from AG Becerra is also rejected for the same reason.

425.16(e)(3)

At the outset of this analysis, it must be observed that under fundamental principles of statutory construction, when different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning. C.C.P. 425.16(e)(3) and (e)(4), concerning statements made in public fora and “other conduct” implicating speech or petition rights, include an express “issue of public interest” limitation. On the other hand, C.C.P. 425.16(e)(1) and (e)(2), concerning statements made before or in connection with issues under review by official proceedings, contain no such limitation. Accordingly, it must be presumed that the Legislature intended different “issue” requirements to apply to anti-SLAPP motions brought under C.C.P. 425.16(e)(3) and (e)(4), than to motions brought under C.C.P. 425.16(e)(1) and (e)(2). Briggs v. Eden Council for Hope & Opportunity, supra, at p.1117.

Defendants contend subdivision (e)(3) applies to the second and fourth cause of action because Plaintiffs’ reference statements posted on the Commission’s website; specifically, the Commission’s Report Concerning Adoption of Additions and Amendments to Rules of the Commission on Judicial Performance 8/29/2017. (Compl.

¶¶ 19, 42-52, 142-171.) These alleged statements concern the Commission’s determination that the rule regarding when to release to prosecuting authorities information regarding possible criminal conduct by a judge should remain discretionary, rather than be amended to be mandatory.

However, the gravamen of the second and fourth causes of action is not this statement regarding the Commission’s decision. Rather, it is that the Commission is alleged to have breached their duty to report “judge crime” pursuant to Canon 3D(1) of the Code of Judicial Ethics, which mandates that a judge report evidence of another judge’s crime to prosecuting authorities. Plaintiffs contend the Commission rules conflict with Canon 3D(1) and the judicial members of the Committee have breached their duty pursuant thereto by invoking their “discretionary authority” to not refer “judge crime” to prosecuting authorities. Such allegations are based on actions and alleged breaches of duty, not based on the alleged statements [e.g. speech or petition rights] raised by Defendants in the moving papers.

Defendants also contend subdivision (e)(3) applies because the Complaint refers to public statements made related to the disciplinary proceedings against retired Judge

Steven Bailey and statements made on the AG’s website that complaints against a judge should be directed to the Commission. This argument is rejected for the same reason explained above, that the crux of the complaint concerns government action or inaction resulting in violations of the Constitution and breaches of duty, rather than alleged government statements.

425.16(e)(4)

Defendants finally contend subdivision (e)(4) applies generally because all of the foregoing concerns matters of public interest. This argument is rejected. The complaint simply does not arise from protected speech or petitioning activity, but is based on alleged government actions or inactions.

Conclusion

Accordingly, the Court finds Defendants have failed to meet their initial burden and demonstrate the Complaint arises out of protected activity. The Court need not analyze the second prong – probability of success. The motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.