Filed 11/18/19 Carley v. Eyster CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

AMANDA CARLEY,

Plaintiff and Appellant,

v.

DAVID EYSTER,

Defendant and Respondent.

A154713

(Mendocino County

Super. Ct. No. SCUKCVG1769021)

Amanda Carley appeals from a judgment entered after the court dismissed two counts of her complaint against respondent David Eyster pursuant to Code of Civil Procedure section 425.16, commonly referred to as the “anti-SLAPP” statute. Carley contends her claims were not subject to the statute. We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

In April 2017, Carley filed a lawsuit against the County of Mendocino, the Mendocino County District Attorney’s Office, the Mendocino County Probation Department, Albert Ganter (Chief Probation Officer), Noble Waidelich (Carley’s former fiancée and City of Ukiah Police Officer), and respondent Eyster (Mendocino County District Attorney).

In her 15-count complaint, Carley asserted claims for violation of her California constitutional rights, termination of her employment in violation of public policy, “hostile work environment harassment,” retaliation, sexual harassment, intentional infliction of emotional distress, intentional interference with contract, civil conspiracy, breach of the implied covenant of good faith and fair dealing, battery, breach of oral contract, intentional misrepresentation, and money had and received.

A. Allegations of Carley’s Complaint

According to the complaint, Waidelich injured Carley physically and psychologically while she was employed as a probation officer in Mendocino County. Her daughter reported Carley’s injuries and Waidelich’s crimes to local authorities. In an investigation by the Mendocino County Sheriff’s Office, Carley was “[r]eluctant at first to reveal the truth due, in part, to fear of the repercussions of lodging a complaint against a police officer,” so she “downplayed the injury and the underlying crimes.” The investigator expressed his belief that she was not telling the complete story and advised her to come forward when she was ready. After Carley separated from Waidelich, she reported “the full account of what happened,” including his physical, emotional, and financial abuse.

Once Carley gave her full account, it was allegedly she (rather than Waidelich) who was investigated. Mendocino County investigated Carley for deceit, issued her a formal reprimand for lying, reassigned her to lesser duties, denied her opportunities, and confiscated her duty weapon to humiliate her and inflict emotional “strain.” During an administrative review process, Carley’s requests for production of documents were denied. According to her complaint, such acts and omissions were typical of police agencies when faced with allegations that a peace officer was guilty of a crime. The acts and omissions were also allegedly retaliatory, thwarted her ability to obtain justice, and targeted her due to her gender. Eventually, Carley resigned her position as a probation officer.

As relevant to this appeal, Carley’s third cause of action for “hostile work environment harassment” under Government Code section 12940, subdivision (j) incorporated the foregoing allegations and further alleged that Eyster, who “headed” the Mendocino District Attorney’s Office, insisted that Carley’s duty weapon be confiscated and “adopted a policy of disqualifying her from handling cases in the Superior Court by instructing his deputies to make a so-called Brady Disclosure.” According to the pleading, these acts were typical of law enforcement agencies when faced with allegations that a peace officer was guilty of a crime, were retaliatory, and targeted her due to her gender. She therefore allegedly suffered from a hostile work environment.

For her eighth cause of action for “civil conspiracy,” Carley alleged that Eyster conspired with the probation department and police department to protect Waidelich by “putting pressure on [Carley] to either keep quiet or leave her job.” This pressure was allegedly applied through an internal investigation, formal reprimand, demotion, loss of her duty weapon, “placement of her name on a so-called ‘Brady list’ ” and “voluntary (and unheard of) disclosure by [Eyster] of non-Brady information to defense attorneys related to her true report of being physically assaulted and battered by a police officer.”

B. Eyster’s Motion to Strike

In December 2017, Eyster filed a special motion to strike (§ 425.16) as to the counts against him. Eyster contended that all of the claims arose from activity protected by the anti-SLAPP statute, and the claims had to be dismissed because Carley had no probability of prevailing on them.

In support of his motion, Eyster submitted a declaration detailing his handling of Carley’s accusations against Waidelich. Eyster averred that he was the District Attorney for Mendocino County, managing the office and prosecuting criminal misconduct. In 2015, his office received a police report from the Sheriff’s Department pertaining to criminal allegations Carley made against Waidelich. Pursuant to his usual practice, Eyster reviewed the police report and supporting information to decide whether to accept the case for prosecution.

After reviewing the materials, Eyster decided not to prosecute Waidelich because some of Carley’s allegations involved events outside the statutory limitations period, the more recent incidents were too vague to prosecute, and the “alleged [victim] is less than cooperative and presents as less than credible.”

Eyster also noted that statements Carley made to the Sheriff’s Office investigators indicated that one or more of her preceding statements had been untruthful. This concerned Eyster, because probation officer Carley was a peace officer, she could be subpoenaed as a prosecution witness in future criminal proceedings, and pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady) prosecutors must notify defense counsel of impeachment evidence relating to prosecution witnesses. To comply with Brady, Eyster’s office maintained a “Brady Listing and Document System” relating to peace officers who committed acts of dishonesty.

Eyster notified Carley’s supervisor, Chief Probation Officer Albert Ganter, that there was potential Brady impeachment material involving Carley. Eyster did this so the county could take any action it deemed appropriate, given that a peace officer’s inclusion on a Brady list makes it difficult for the officer to testify in court due to her susceptibility to impeachment. Eyster then waited a few months, while Carley was not needed to testify on any criminal matters, in case the county conducted an investigation clearing her. Later, Eyster revisited the matter and deemed it necessary to notify Carley that the reports from the Sheriff’s Department likely contained Brady information. On January 8, 2016, Eyster sent Carley a letter alerting her that the information pertaining to her dishonesty would be stored in the District Attorney’s Brady system.

Eyster denied having any personal involvement in Mendocino County’s investigation of Carley. He also denied knowledge as to Carley’s allegation that he “insisted that Defendant Ganter confiscate Plaintiff’s duty weapon,” as it is not within his purview as District Attorney to decide whether probation officers have access to firearms or other weapons.

Carley voluntarily dismissed all but two of the counts in her complaint as to Eyster, leaving only the third cause of action (“Hostile Work Environment Harassment”) and the eighth cause of action (“Civil Conspiracy”). As to these claims, Carley filed an opposition to Eyster’s motion to strike. She contended that the claims against Eyster were not subject to the anti-SLAPP statute, but she did not submit any evidence or attempt to show a probability of prevailing on her claims.

In a 23-page Final Statement of Decision issued after a hearing, the court granted Eyster’s special motion to strike, concluding that all of Carley’s claims against Eyster arose from protected activity. Judgment was entered accordingly, and this appeal followed.

II. DISCUSSION

Section 425.16, subdivision (b)(l) authorizes a special motion to strike any cause of action arising from activity protected by the statute: “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, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

The analysis of a special motion to strike has two steps. First, the court determines whether the defendant made a threshold showing that the cause of action arises from the defendant’s free speech or petition activity, as specified in the statute. (§ 425.16, subds. (b), (e); Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1181 (Wallace), disapproved in part on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.) To make this determination, the court must consider the elements of the cause of action and the acts on which those elements—and thus liability—are premised. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).) Second, if the cause of action does arise from protected activity, the burden shifts to the plaintiff to establish a probability of prevailing on the claim. (§ 425.16, subd. (b); Wallace, supra, 196 Cal.App.4th at p. 1181.) We review de novo an order granting the motion to strike. (Wallace, at p. 1181.)

A. First Step: Arising from Protected Activity

By statutory definition, acts in furtherance of a person’s right of petition or free speech, and thus protected by the anti-SLAPP statute, include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, [and] (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.”

(§ 425.16, subd. (e)(1)–(2).) Carley’s causes of action hinge on such protected activity.

1. Third Cause of Action (Hostile Work Environment Harassment)

Government Code section 12940, subdivision (j), makes it an unlawful employment practice to harass an employee based on sex or gender. The elements of the cause of action include harassment.

As alleged in her complaint, Carley’s claim of “hostile work environment harassment” is based on the following acts: (1) Eyster insisted that Carley’s duty weapon be confiscated; and (2) Eyster “adopted a policy of disqualifying her from handling cases in the Superior Court by instructing his deputies to make a so-called Brady Disclosure.” Carley alleges that Eyster performed these acts in the course and scope of his employment as Mendocino County District Attorney.

The acts on which the third cause of action predicates liability are plainly protected by the anti-SLAPP statute. Allegedly “insisting” that Carley’s weapon be confiscated reflects a “written or oral statement” by Eyster “in connection with an issue under consideration or review by a[n] . . . executive[] or judicial body”—namely, Carley’s accusations against Waidelich and Carley’s potential dishonesty—and is thus protected under section 425.16, subdivision (e)(2). Allegedly “instructing his deputies to make a so-called Brady Disclosure,” and thereby effect a policy of disqualifying Carley from court cases, also indicates a statement in connection with an issue under consideration by Eyster’s office, as part of his duty to notify defense counsel of impeachment evidence relating to prosecution witnesses. (§ 425.16, subd. (e)(2); see Neri v. County of Stanislaus Dist. Attorney’s Office (E.D. Cal. Sept. 9, 2010) 2010 U.S. Dist. Lexis 99839 (Neri) [decision to place officer on a Brady list is part of a prosecutor’s judicial function].) These acts, like others taken in the course of reporting, investigating, or prosecuting potential criminal actions, are protected under the statute. (E.g., Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 999 [police inspector’s memorandum to district attorney and police officer’s affidavits]; Miller v. Filter (2007) 150 Cal.App.4th 652, 662 [prosecution]; Doe v. State of California (2017) 8 Cal.App.5th 832, 840 [informing plaintiff of duty to register as a sex offender, entering his information in the sex offender registry, communicating with local police about it, and disseminating his registration as a sex offender]; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [communications with district attorney and police to request formal investigation].)

2. Eighth Cause of Action (Civil Conspiracy)

Carley’s claim against Eyster for civil conspiracy is premised on Eyster “putting pressure on [Carley] to either keep quiet or leave her job” through the following acts: an internal investigation, formal reprimand, demotion, loss of her duty weapon, “placement of her name on a so-called ‘Brady list’ ” and “voluntary (and unheard of) disclosure by [Eyster] of non-Brady information to defense attorneys related to her true report of being physically assaulted and battered by a police officer.”

All of these acts are protected by the anti-SLAPP statute. Since Eyster did not personally conduct the internal investigation, issue the reprimand, order the demotion, or strip Carley of her duty weapon, his conspiracy in these acts is based on statements he made to others, allegedly in the course and scope of his duties as District Attorney. (Indeed, Carley explicitly alleges that Eyster discussed her accusations against Waidelich with Ganter.) Placing Carley’s name on the Brady list, and allegedly disclosing non-Brady information to defense counsel, indicate statements of Eyster in connection with his handling of Brady matters as District Attorney. (See Neri, supra, 2010 U.S. Dist. Lexis 99839.) Because all of Eyster’s conduct underlying the conspiracy claim relates to statements “made in connection with an issue under consideration or review by [an] . . . executive or judicial body, or any other official proceeding authorized by law,” the conspiracy claim arises from protected activity. (§ 425.16, subd. (e)(2).)

3. Carley’s Arguments

Carley contends the trial court erred because it was “[s]eemingly confused by separate issues of prosecutorial immunity” and protected activity when it granted Eyster’s motion to strike. While the court’s Final Statement of Decision does mention immunity and protected activity in the same discourse, the court plainly concluded that the gravamen of Carley’s claims was placing her on the Brady list, and the acts on which the complaint were based were protected under the anti-SLAPP statute. In any event, this court concludes that Eyster’s alleged acts constitute protected activity, and given the standard of de novo review, that is all that matters.

Carley also argues that Eyster’s alleged communications and placement of her on the Brady list are merely “the underlying facts which show the discrimination and retaliation on which these claims are, in fact[,] based.” Exactly. They are the acts on which the conclusion of discrimination is premised, and thus the acts from which Carley’s claims arise. This is not a case in which protected activity is merely incidental to the plaintiff’s claims; it is the exclusive basis for them.

In her reply brief, Carley states: “The gravamen of Plaintiff’s Complaint was not focused on EYSTER’s placement of her on the Brady List, but upon the discriminatory manner in which the actions were taken to harass her and create a hostile work environment as a way of protecting and favoring Officer Waidelich.” (Italics added.) But Carley misperceives anti-SLAPP analysis. The question is not the manner in which the acts were performed, the motive behind them, or the quality of the work environment that resulted, but on the specific acts that have been alleged to establish the elements of the claim, and whether those acts fall within the statutory definition of protected activity. (E.g., Wallace, supra, at p. 1186 [“But causes of action do not arise from motives; they arise from acts.”]; Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 268–269 [“Whether defendants had a gender-based discriminatory motive in not assigning new cases to plaintiff or in defunding her existing cases is a question that is entirely separate and distinct from whether, under the anti-SLAPP statute, plaintiff’s gender discrimination claims are based on defendants’ selection and funding decisions.”], overruled in part on another ground in Park, supra, 2 Cal.5th at p. 1071.)

Which brings us to the flaw in the remainder of Carley’s arguments. Carley contends that causes of action alleging discrimination, harassment, or retaliation in the workplace are not subject to the anti-SLAPP law, period. Our Supreme Court suggested otherwise long ago, instructing that “[n]othing in the [anti-SLAPP] statute itself categorically excludes any particular type of action from its operation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)

Carley nonetheless refers us to Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176 (Nam). There, an anesthesiology resident at UC Davis Medical Center sent an email that disagreed with the medical center’s policies. (Id. at p. 1180.) The email allegedly led to complaints about the resident, as well as warnings, investigatory leaves, and ultimately her dismissal. (Id. at pp. 1180–1184.) She sued the university for retaliation, discrimination, sexual harassment, wrongful termination, and other claims. (Id. at p. 1184.) The university brought a special motion to strike, which the trial court denied. (Ibid.) The court of appeal affirmed, accepting the resident’s assertion that the gravamen of her claims was not the defendant’s investigation of her complaints, but the defendant’s harassment and retaliation. (Id. at p. 1187.)

Carley’s reliance on Nam is unavailing. Nam was always at odds with other appellate decisions (e.g. Tuszynska, supra, 199 Cal.App.4th 257; Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510). And more recently, our Supreme Court put the matter to rest by expressly disapproving Nam in Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson).

In Wilson, the court reemphasized that even in cases asserting discrimination or retaliation, the acts alleged to constitute the discrimination or retaliation are the acts from which the causes of action arise and, if they fall within the scope of protected activity, the cause of action is subject to the anti-SLAPP statute. (Wilson, supra, 7 Cal.5th at

pp. 886–889.) The court concluded: “In sum, we conclude that for anti-SLAPP purposes discrimination and retaliation claims arise from the adverse actions allegedly taken, notwithstanding the plaintiff’s allegation that the actions were taken for an improper purpose. If conduct that supplies a necessary element of a claim is protected, the defendant’s burden at the first step of the anti-SLAPP analysis has been carried, regardless of any alleged motivations that supply other elements of the claim. We disapprove [Nam] to the extent [it] is inconsistent with this conclusion.” (Id. at p. 892.)

Carley also cites Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 and Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611 for the proposition that the anti-SLAPP statute does not apply in discrimination or harassment cases. Nam relied on these cases in reaching its conclusion. (Nam, supra, 1 Cal.App.5th at pp. 1189–1190.) Neither case is on point factually, neither appears persuasive in light of our Supreme Court’s more recent directive in Wilson, and Carley does not even try to argue how they might be.

The court did not err in concluding that Carley’s third and eighth causes of action were subject to the anti-SLAPP statute.

B. Second Step: Probability of Prevailing

Once a defendant meets its burden of establishing that the cause of action arises from protected activity, the burden shifts to the plaintiff to establish a probability of prevailing on her claim. (§ 425.16, subd. (b).) Carley did not address this issue in the trial court, and the court concluded that Carley had not met her burden.

The trial court further ruled that Carley’s causes of action against Eyster would fail as a matter of law anyway, because the claims against him are subject to absolute immunity for prosecutors. Government Code section 821.6 provides that “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This immunity is absolute. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209–1210 (Amylou).) Government Code section 821.6 not only “immunizes … the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings,” including “[a]n investigation before the institution of a judicial proceeding” and “[a]cts undertaken in the course of an investigation.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033,1048; see Amylou, supra, 28 Cal.App.4th at pp. 1210–1212 [officers investigating crime were immune from liability for statements to friends and neighbors of the victim that suggested she was lying about what happened and might have been involved in the crime].) The decision to place an officer on the Brady List “involves an assessment of credibility, which is part of the prosecutor’s judicial function,” and “[p]rosecutors have absolute immunity for actions that fall under a prosecutor’s judicial function.” (Neri, supra, 2010 U.S. Dist. Lexis 99839 [discussing constitutional immunity in actions under 42 U.S.C. § 1983].)

Carley fails to make any argument in this appeal regarding her probability of prevailing. She therefore fails to establish that the court erred in dismissing the third and eighth counts of her complaint, or that the judgment should otherwise be reversed.

III. DISPOSITION

The judgment is affirmed. Appellant shall reimburse respondent for his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).) The matter is remanded for the trial court’s consideration of an award to respondent for attorney’s fees incurred on appeal. (Code Civ. Proc., § 425.16, subd. (c).)

NEEDHAM, J.

We concur.

JONES, P.J.

BURNS, J.

Carley v. Eyster / A154713