Filed 4/28/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

TRACY TOWNER,

Plaintiff and Appellant,

v.

COUNTY OF VENTURA et al.,

Defendants and Respondents.

 B306283

 (Ventura County

 Super. Ct. No. 56-2019-

 00527392-CU-OE-VTA)

APPEAL from an order of the Superior Court of Ventura

County, Vincent J. O’Neill, Judge. Reversed and remanded.

Pachowicz Goldenring, Mark R. Pachowicz, and Jennie 

Hendrickson for Plaintiff and Appellant.

The Zappia Law Firm, Edward P. Zappia, Brett M. Ehman, 

and Gail Wise for Defendants and Respondents.

_______________________
2

Tracy Towner appeals from an order granting the special 

motion to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute)1

filed by defendants County of Ventura (County), Ventura County 

Office of the District Attorney (VCDA), District Attorney 

Gregory D. Totten, Chief Assistant District Attorney Michael 

Schwartz, and outside counsel Edward Zappia (collectively, the 

County defendants). Towner worked for VCDA as an 

investigator. He alleged the County defendants terminated him 

for dishonesty based on his testimony at a fellow peace officer’s 

administrative hearing before the Civil Service Commission of 

Ventura County (Commission). After Towner appealed the 

termination decision to the Commission, the County filed a 

petition for writ of mandate requesting the superior court enjoin 

the Commission from hearing Towner’s appeal due to an alleged 

conflict of interest. The County attached as exhibits to its 

petition excerpts from an investigative report on Towner’s 

conduct and notices of discipline from VCDA to Towner relating 

to VCDA’s termination decision. The superior court denied the 

County’s request for ex parte relief, and after a hearing, the

Commission reversed the County’s termination of Towner and 

ordered him reinstated.

Towner then filed this action, alleging five causes of action, 

including for violation of the Public Safety Officers Procedural 

Bill of Rights Act (Gov. Code, § 3300 et seq.; POBRA) and

negligence per se based on violation of Penal Code 832.7.

2

 

1 “SLAPP is an acronym for ‘strategic lawsuits against public 

participation.’” (City of Montebello v. Vasquez (2016) 1 Cal.5th 

409, 413, fn 2.)

2 All further undesignated statutory references are to the 

Penal Code.
3

Towner contends the trial court erred in granting the County 

defendants’ special motion to strike the POBRA and section 832.7

causes of action because the County’s disclosure of his 

confidential personnel records was illegal as a matter of law and 

therefore was not protected activity under Code of Civil 

Procedure section 425.16. Because the County defendants’ willful 

disclosure of Towner’s confidential personnel records without 

complying with mandatory procedures for disclosure was 

punishable as a misdemeanor under Government Code 

section 1222, the disclosure did not constitute protected activity.

We reverse.

FACTUAL AND PROCEDURAL BACKGROUND3

A. The Hearing on Kimberly Michael’s Administrative 

Complaint

VCDA hired Towner in 1997 to serve as an investigator. 

Towner received several promotions and became an investigative 

commander in June 2014. In 2017 VCDA investigator Kimberly 

Michael brought an administrative action alleging “fraud, 

favoritism, and other non-merit based factors in the promotional 

process.” Towner testified under subpoena at the hearing on 

Michael’s action before the Commission (Michael hearing). 

Following the hearing, the Commission issued a decision and 

order finding Towner “credibly testified that senior DA 

investigator Thomas Mendez had been instructed by Deputy 

3 The factual background is taken from the pleadings and 

declarations filed in support of and in opposition to the County 

defendants’ motion to strike. (Code Civ. Proc., § 425.16, 

subd. (b).)
4

Chief [Ken] Valentini to fail [Michael] in a 2014 promotional 

examination when Deputy Chief Valentini was in the role of 

Acting Chief. Although senior DA investigator Mendez denied 

telling [Towner] this information, the commission finds that, 

based upon a totality of the evidence and an evaluation of the live 

testimony of both witnesses, [Towner’s] testimony was truthful.”

B. Towner’s Termination and Related Proceedings

On July 27, 2017, at the direction of Totten and Schwartz,

VCDA opened an independent investigation into Towner’s 

testimony at the Michael hearing. The investigation concluded, 

based on interviews with Towner, Mendez, and others, that

Towner had testified falsely at the Michael hearing. On March 

15, 2018 VCDA gave Towner notice of its intent to terminate him 

for dishonesty. Towner submitted evidence at an administrative 

hearing to prove his honesty, including a polygraph test. But on 

April 23, 2018 VCDA terminated Towner.

Towner requested an appeal hearing before the 

Commission on VCDA’s termination decision. The Commission

set a hearing for September 24, 2018. On June 4, 2018 the 

County filed a motion with the Commission to disqualify the 

Commission from presiding over the hearing based on an 

asserted conflict of interest, and to appoint an independent 

hearing officer. On June 28, 2018 the Commission denied the 

motion.

On August 3, 2018 the County filed a petition for writ of 

mandate in the Ventura Superior Court, requesting the court 

enjoin the Commission from hearing Towner’s appeal. (County of 

Ventura v. Ventura County Civil Service Commission et al. 

(Super. Ct. Ventura County, 2018, No. 56-2018-00515881-CU-
5

WM-VTA).) The County argued the Commission had “a clear 

conflict of interest” in hearing Towner’s appeal because the 

Commission found Towner’s testimony during the Michael 

hearing credible and the Commission was defending its decision 

in the then-pending writ proceeding filed by the County. The 

County attached as exhibits to its petition an excerpt of the 

independent investigator’s report recommending the allegation of 

dishonesty against Towner be sustained, as well as the March 15

and April 23, 2018 notices of disciplinary action relating to 

Towner’s termination. The notices of disciplinary action stated at 

the top of the first page, “CONFIDENTIAL PERSONNEL 

DOCUMENT,” and at the top of each subsequent page,

“CONFIDENTIAL.”4

On September 4, 2018 the County filed an ex parte request 

to vacate the administrative hearing dates set by the

Commission. Towner opposed the County’s request. Towner did 

not request a protective order or seek to seal the personnel 

records the County had attached as exhibits to its petition. The 

superior court denied the County’s ex parte application.

5 On July 

12, 2019 the Commission ordered Towner reinstated with full 

back pay and benefits.

C. The Complaint

On November 12, 2019 Towner filed the operative first 

amended complaint against the County defendants, alleging 

4 The County filed a first amended petition on August 29, 

2018, again attaching Towner’s personnel records.

5 The record does not reflect the superior court’s final 

decision, if any, on the writ petition.
6

causes of action for retaliation in violation of the California Fair 

Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA)

(first cause action); failure to prevent discrimination, 

harassment, and retaliation in violation of FEHA (second cause 

of action); violations of POBRA (third cause of action), negligence 

(fourth cause of action); and negligence per se based on violations 

of section 832.7 (fifth cause of action). As to Towner’s POBRA 

claim, the first amended complaint alleged the County 

defendants intentionally publicly disclosed his confidential 

personnel records in violation of Government Code sections 3300, 

3303, and 3304, with knowledge the disclosure was unlawful. 

Towner alleged the County, VCDA, Totten, and Schwartz hired 

Zappia as outside counsel and directed him to file Towner’s 

confidential personnel records in the writ proceeding. As to 

Towner’s negligence per se claim, the first amended complaint 

alleged the County defendants violated section 832.7 by publicly 

disclosing Towner’s confidential personnel records without 

appropriate judicial review, and “[i]n failing to abide by the 

statute, defendants and each of them are presumed negligent.”

D. The County Defendants’ Special Motion To Strike

On January 6, 2020 the County defendants filed a special 

motion to strike the third and fifth causes of action of the first 

amended complaint under Code of Civil Procedure section 425.16. 

The County defendants argued that because the conduct alleged 

in the third and fifth causes of action was the filing of a writ 

petition in the superior court, the causes of action arose from 

protected activity in furtherance of the County defendants’ right 

of petition. The County defendants asserted Towner could not 

establish a probability of prevailing on his claims because 
7

POBRA does not protect against disclosure of confidential 

information and there is no private right of action for violations

of section 832.7. Further, the filing of the writ petition was 

absolutely privileged under Civil Code section 47, subdivision (b), 

and POBRA did not authorize claims against defendant Zappia. 

The County defendants requested over $16,000 in attorneys’ fees 

and costs incurred in bringing their motion.

Towner opposed the motion, arguing the third and fifth 

causes of action did not arise out of protected activity because the 

County defendants’ intentional disclosure of his confidential 

personnel records was illegal as a matter of law, citing to the 

Supreme Court’s decision in Flatley v. Mauro (2006) 39 Cal.4th 

299 (Flatley). Towner asserted he had actionable claims under 

POBRA and section 832.7, and the litigation privilege did not 

apply. Towner attached as an exhibit to his opposition an 

Attorney General opinion interpreting Government Code section 

1222, which provides, “Every willful omission to perform any 

duty enjoined by law upon any public officer, or person holding 

any public trust or employment, where no special provision is 

made for the punishment of such delinquency, is punishable as a 

misdemeanor.” The Attorney General concluded “[t]he disclosure 

of peace officer personnel records in violation of . . . section 832.7

may constitute a crime under the terms of Government Code 

section 1222 if the conditions of the latter statute are met.”

(82 Ops.Cal.Atty.Gen. 246 (1999).)

At a hearing on March 11, 2020 the trial court granted the 

County defendants’ motion. In its written ruling the court found 

the County defendants’ writ petition and attachments constituted 

“a written statement submitted in a judicial proceeding, and thus 

[was] within the scope of the [anti-]SLAPP statute.” Further, the 
8

court held Towner failed to show a probability of success on the 

merits because the County defendants’ conduct was protected by 

the litigation privilege under Civil Code section 47, subdivision 

(b), and neither POBRA nor section 832.7 provided a private 

right of action based on disclosure of confidential personnel 

records.

Towner timely appealed.

DISCUSSION

A. Special Motions To Strike

A cause of action arising from an act in furtherance of a

defendant’s constitutional right of petition or free speech in 

connection with a public issue is subject to a special motion to 

strike unless the plaintiff demonstrates a probability of 

prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1); 

see Barry v. State Bar of California (2017) 2 Cal.5th 318, 321; 

Baral v. Schnitt (2016) 1 Cal.5th 376, 381.) 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, in relevant part, “any written or oral 

statement or writing made before a legislative, executive, or 

judicial proceeding, or any other official proceeding authorized by 

law.” (Code Civ. Proc., § 425.16, subd. (e)(1).)

The analysis of an anti-SLAPP motion involves a two-step 

process. (Barry v. State Bar of California, supra, 2 Cal.5th at

p. 321; Baral v. Schnitt, supra, 1 Cal.5th at p. 381.) “‘“First, the 

court decides whether the defendant has made a threshold 

showing that the challenged cause of action is one ‘arising from’ 

protected activity. [Citation.] If the court finds such a showing 
9

has been made, it then must consider whether the plaintiff has 

demonstrated a probability of prevailing on the claim.”’ 

[Citations.] . . . ‘“Only a cause of action that satisfies both prongs 

of the anti-SLAPP statute . . . is a SLAPP, subject to being 

stricken under the statute.”’” (Barry, at p. 321.)

We review de novo the grant or denial of a special motion to 

strike. (Park v. Board of Trustees of California State University

(2017) 2 Cal.5th 1057, 1067 (Park).) “We exercise independent 

judgment in determining whether, based on our own review of 

the record, the challenged claims arise from protected activity. 

[Citations.] In addition to the pleadings, we may consider 

affidavits concerning the facts upon which liability is based. 

[Citations.] We do not, however, weigh the evidence, but accept 

the plaintiff’s submissions as true and consider only whether any 

contrary evidence from the defendant establishes its entitlement 

to prevail as a matter of law.” (Ibid.)

B. Towner Met His Burden To Show the County Defendants’

Alleged Conduct Underlying His Third and Fifth Causes of 

Action Was Illegal as a Matter of Law

“A claim arises from protected activity when that activity 

underlies or forms the basis for the claim.” (Park, supra, 

2 Cal.5th at p. 1062; accord, City of Cotati v. Cashman (2002) 

29 Cal.4th 69, 78.) “‘[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.’” (Park, 

at p. 1063.) “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 [Code of 
10

Civil Procedure] section 425.16 by which a moving defendant can 

satisfy the [“arising from”] requirement is to demonstrate that 

the defendant’s conduct by which [the] plaintiff claims to have 

been injured falls within one of the four categories described in 

subdivision (e) . . . .’ [Citation.] In short, in ruling on an antiSLAPP motion, courts should consider the elements of the 

challenged claim and what actions by the defendant supply those 

elements and consequently form the basis for liability.” (Ibid., 

italics omitted.)

The County defendants argue the conduct giving rise to 

Towner’s POBRA and section 832.7 claims—the public disclosure 

of Towner’s confidential personnel records—arose from protected 

activity in furtherance of the right of petition because the filings 

constituted written statements made before a judicial proceeding 

authorized by law, pursuant to Code of Civil Procedure 

section 425.16, subdivision (e)(1). “‘“Any act”’ under [Code of 

Civil Procedure] section 425.16, subdivision (b)(1) ‘includes 

communicative conduct such as the filing, funding, and 

prosecution of a civil action.’” (Optional Capital, Inc. v. Akin 

Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113; 

accord, Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [“‘Any 

act’” under the statute includes “qualifying acts committed by 

attorneys in representing clients in litigation”].)

Towner does not dispute that the filing of written 

documents in a judicial proceeding generally falls within the 

protection of the anti-SLAPP statute, but he contends Code of 

Civil Procedure section 425.16 does not apply to his claims 

because the County defendants’ public disclosure of his

confidential personnel records was illegal as a matter of law 

under Flatley, supra, 39 Cal.4th 299. Towner is correct.
11

In Flatley, the plaintiff alleged causes of action for civil 

extortion, intentional infliction of emotional distress, and 

wrongful interference with economic advantage against an 

attorney who threatened to publicize a rape allegation against 

the plaintiff if he did not pay a multimillion-dollar settlement. 

(Flatley, supra, 39 Cal.4th at pp. 307-309.) The Supreme Court 

affirmed the denial of the attorney’s special motion to strike

under the first prong, holding, “[W]here a defendant brings a 

motion to strike under [Code of Civil Procedure] section 425.16 

based on a claim that the plaintiff’s action arises from activity by 

the defendant in furtherance of the defendant’s exercise of 

protected speech or petition rights, but either the defendant 

concedes, or the evidence conclusively establishes, that the 

assertedly protected speech or petition activity was illegal as a 

matter of law, the defendant is precluded from using the antiSLAPP statute to strike the plaintiff’s action. In reaching this 

conclusion, we emphasize that the question of whether the 

defendant’s underlying conduct was illegal as a matter of law is 

preliminary, and unrelated to the second prong question of 

whether the plaintiff has demonstrated a probability of 

prevailing, and the showing required to establish conduct illegal 

as a matter of law—either through defendant’s concession or by 

uncontroverted and conclusive evidence—is not the same showing 

as the plaintiff’s second prong showing of probability of 

prevailing.” (Flatley, at p. 320; accord, Soukup v. Law Offices of 

Herbert Hafif (2006) 39 Cal.4th 260, 286-287 [“[O]nce the 

defendant has made the required threshold showing that the 

challenged action arises from assertedly protected activity, the 

plaintiff may counter by demonstrating that the underlying 

action was illegal as a matter of law because either the defendant 
12

concedes the illegality of the assertedly protected activity or the 

illegality is conclusively established by the evidence presented in 

connection with the motion to strike.”].)

The Courts of Appeal analyzing the Supreme Court’s 

decision in Flatley have found the use of the phrase “illegal” in 

Flatley was intended to mean criminal, not merely a violation of a 

statute. (See Collier v. Harris (2015) 240 Cal.App.4th 41, 57 [“A 

defendant who violates Business and Professions Code section 

17525 is not guilty of a crime and therefore the anti-SLAPP 

statute would apply even if [defendant]’s conduct violated that 

statute.”]; Mendoza v. ADP Screening & Selection Services, 

Inc. (2010) 182 Cal.App.4th 1644, 1654 [defendant’s alleged 

violations of § 290.46, subd. (l), which prohibits certain uses of 

information disclosed on Megan’s Law sex offender website, did 

not fall within the Flatley exception because the statute did not 

provide a violation was a misdemeanor or felony, but rather 

“expressly prescribes civil remedies—including actual and

exemplary damages, and a civil penalty—for a violation of its 

provisions”].) As the Mendoza court explained, “[A] plaintiff’s 

complaint always alleges a defendant engaged in illegal conduct 

in that it violated some common law standard of conduct or 

statutory prohibition, giving rise to liability, and we decline to 

give plaintiffs a tool for avoiding the application of the antiSLAPP statute merely by showing any statutory violation.” 

(Mendoza, at p. 1654.)

Towner contends the County defendants violated section

832.7 by publicly disclosing his confidential personnel records

without submitting the documents to the statutorily prescribed 

judicial review. “In relevant part, section 832.7, subdivision (a), 

provides that certain ‘[p]eace officer or custodial officer’ records 
13

and ‘information obtained from these records, [] are confidential 

and shall not be disclosed in any criminal or civil proceeding 

except by discovery pursuant to Sections 1043 and 1046 of the 

Evidence Code.’” (Copley Press, Inc. v. Superior Court (2006) 39 

Cal.4th 1272, 1283 (Copley).) The statute applies to “personnel 

records” (§ 832.7, subd. (a)), defined to include “any file 

maintained under [an officer’s] name by his or her employing 

agency and containing records relating to . . . [¶] . . . [e]mployee 

advancement, appraisal, or discipline.” (§ 832.8, subd. (a)(4).) 

The County defendants do not dispute that they failed to comply

with section 832.7 and Evidence Code section 1043.6

Although section 832.7 provides a comprehensive and 

detailed scheme for the disclosure of confidential law enforcement 

personnel records, it does not make a violation a crime. However, 

as Towner contends, the County defendants’ failure to comply 

with section 832.7 was illegal as a matter of law under 

Government Code section 1222, which makes a public officer’s 

“willful omission to perform any duty enjoined by law” a 

misdemeanor. We agree with Towner that the County 

defendants’ failure (omission) to treat Towner’s personnel 

documents as confidential was willful, in that the County 

defendants acted on purpose with the intent the records be filed 

publicly in the writ proceeding. (See § 7(1) [“The word ‘willfully,’

when applied to the intent with which an act is done or omitted, 

implies simply a purpose or willingness to commit the act, or 

make the omission referred to. It does not require any intent to 

6 Evidence Code section 1043 provides that a party seeking 

disclosure of peace officer personnel records must file a written 

motion showing good cause for the disclosure. (Id., subds. (a), 

(b)(3).)
14

violate law, or to injure another, or to acquire any advantage.”]; 

In re V.V. (2011) 51 Cal.4th 1020, 1027 [“‘“[T]he terms ‘willful’ or 

‘willfully,’ when applied in a penal statute, require only that the 

illegal act or omission occur ‘intentionally,’ without regard to 

motive or ignorance of the act’s prohibited character.”’”]; Boags v. 

Municipal Court (1987) 197 Cal.App.3d 65, 71 [“Section 1222 

defines a general intent statute, hence it criminalizes simply a 

willing intentional omission to perform a duty.”].)7 

Our conclusion is consistent with the Attorney General’s 

opinion “[t]he disclosure of peace officer personnel records in 

violation of Penal Code section 832.7 may constitute a crime 

under the terms of Government Code section 1222 if the 

conditions of the latter statute are met.” (82 Ops.Cal.Atty.Gen. 

246 (1999).) The opinion explains “the disclosure must be proved 

to be ‘willful’ to come within the terms of [Government Code 

section 1222], among other requirements.” (Ibid.) Although we 

are not bound by the Attorney General’s interpretation of a 

statute, “ ‘[a]bsent controlling authority, [the Attorney General’s 

opinion] is persuasive because we presume that the Legislature 

was cognizant of the Attorney General’s construction of [the 

statute] and would have taken corrective action if it disagreed 

with that construction.’ ” (Ennabe v. Manosa (2014) 58 Cal.4th 

7 The Court of Appeal in Boags concluded Government Code 

section 1222 was unconstitutional as applied to judicial officers 

while engaged in the performance of their judicial functions

because it violated the separation of powers doctrine. (Boags v. 

Municipal Court, supra, 197 Cal.App.3d at p. 71.) The court 

granted the petition of a sitting judge to restrain prosecution of 

criminal charges against him based on his refusal to disqualify 

himself from a pending matter. (Id. at pp. 67-68.)
15

697, 717, fn. 14; accord, Lexin v. Superior Court (2010) 47 Cal.4th 

1050, 1087, fn. 17 [“Attorney General opinions are entitled to 

considerable weight.”]; Riverside County Sheriff's Dept. v. 

Zigman (2008) 169 Cal.App.4th 763, 771 [“The opinions of the

Attorney General are not binding on this court, of course, but 

they are entitled to ‘great respect.’”].) 

The County defendants do not argue their failure to follow 

the requirements of section 832.7 was not willful, nor do they 

argue Government Code section 1222 does not apply to omissions 

under section 832.7. Instead, the County defendants contend

they were not required to comply with section 832.7 before

publicly disclosing Towner’s personnel files in the writ 

proceeding, pointing to language in section 832.7, subdivision (a),

that the “section shall not apply to investigations or proceedings 

concerning the conduct of peace officers or custodial officers, or an 

agency or department that employs those officers, conducted by a 

grand jury, a district attorney’s office, or the Attorney General’s 

office.” The County defendants argue their conduct fell within 

this exception because the writ proceeding was a part of VCDA’s

investigation of Towner’s conduct. The County defendants read 

the statutory exception too broadly.

The Court of Appeal in Fagan v. Superior Court (2003) 

111 Cal.App.4th 607 (Fagan) rejected the same argument made 

by the County defendants here. There, two police officers 

charged with felony assault and battery filed a motion for 

protective order to prevent the district attorney from disclosing 

urinalysis test results obtained from the officers’ confidential 

personnel files. (Id. at p. 610.) The Court of Appeal concluded 

the district attorney had properly obtained the test results under 

the “limited exception” for investigations and proceedings 
16

involving officer conduct under section 832.7, subdivision (a). 

(Fagan, at pp. 615, 618-619.) However, the district attorney 

could not publicly disclose the test results without first obtaining 

judicial review under Evidence Code section 1043. (Fagan, at 

p. 619.) 

The Fagan court rejected the People’s argument “the 

exception in section 832.7, subdivision (a) applies to both its 

confidentiality provision and its limitation on disclosure so that 

when the district attorney investigates or prosecutes police officer 

or police agency misconduct, he not only has unfettered access to 

confidential police personnel files, but there are no constraints on 

his use or disclosure of any information obtained from those 

files.” (Fagan, supra, 111 Cal.App.4th at p. 617.) The court 

reasoned such an interpretation would “lead[] to the absurd 

consequence that the protections specified in that section are 

completely lost for all information in any peace officer’s personnel 

file (§ 832.8) perused by the district attorney in the course of an 

investigation, regardless of whether that information is 

ultimately admissible or relevant to a subsequent criminal or 

civil action. Moreover, this loss of confidentiality would 

occur with no notice to the officers involved, and they would have 

no recourse.” (Fagan, at p. 617.) The court concluded, “The 

exception contained in section 832.7 affords the district attorney 

the ability to review confidential peace officer personnel files 

when investigating police misconduct without notice to the 

individuals involved. At the same time, it requires the district 

attorney to maintain the nonpublic nature of the files absent 
17

judicial review of the relevance of the information to a criminal or 

civil action.” (Fagan, at p. 618.)8

We agree with the Fagan court’s analysis and reject the 

County defendants’ reliance on the limited exception in section 

832.7, subdivision (a).

9

 Thus, Towner has carried his burden to 

show the alleged conduct of the County defendants underlying 

his third and fifth causes of action was illegal as a matter of law 

under Flatley because it constituted a willful omission to perform 

a public duty enjoined by law (Gov. Code, § 1222), and was 

therefore not protected activity under the anti-SLAPP statute.

8 At oral argument, defense counsel sought to distinguish

Fagan as involving the conduct of off-duty peace officers, but the 

Fagan court concluded section 832.7 applied to the officers’ 

personnel files regardless of whether the conduct for which they 

were disciplined occurred while they were off duty. (See Fagan, 

supra, 111 Cal.App.4th at p. 615 [“Although they were offduty, 

petitioners were nonetheless police officers and under a duty to 

protect the public.”].)

9 Because we conclude the County defendants did not make a 

threshold showing under the first prong of the anti-SLAPP 

statute that Towner’s third and fifth causes of action arose from 

protected activity, we do not reach the County defendants’

arguments under the second prong that Towner failed to show a 

probability of success because (1) there is no private right of 

action under section 832.7 or POBRA; (2) the County defendants’ 

conduct was protected by the litigation privilege under Civil Code 

section 47, subdivision (b); (3) Totten’s and Schwartz’s conduct

was privileged under Government Code section 820.2; and (4) 

POBRA does not authorize any claim against Zappia.
18

DISPOSITION

The order granting the special motion to strike under Code 

of Civil Procedure section 425.16 is reversed. The cause is 

remanded to the trial court with directions to enter an order 

denying the motion. Towner is to recover his costs on appeal.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.