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 Appella nt,

v.

COUNTY OF VENTURA et al.

,

Defendant s and Responde nt s

. B 306 283

( 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 Golde nring, Mark R. Pachowicz

, and Jennie
Hendrickson for Plaintiff and Appellant.
The Zappia Law Firm, Edward P. Zappia, Brett M. Ehman,
and Gail Wise for Defendant s and Respondent s

.

_______________________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 cou nsel 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 a n investigat ive report on Towner’s
conduct and notice s 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 a fter a hearing , the
Commission reversed the County’s termination of Towner and
ordered him reinstated

. Towner then filed this action, alleg ing five cause s 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 lawsuit s 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 motio n 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 BACKGROUND 3

A. The Hearing on Kimberly Michael’s Administrative Complaint
VCDA hired Towner in 1997 to serv e as an investigator

. Towner received several promotions and became an investigative
command er 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 testif ied under subpoena at the hearing on Michael’s action before the Commission (Michael hearing)

. Following the hearing, t he Commission issued a decision and order finding Towner “credibly testified that senior DA investigator Thomas Mendez h ad 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 se nior DA investigator Mendez denied telling [Towner] this information, the commission finds that, based upon a totality of the evid ence 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,
VCD A opened an independent investigation into Town er’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 o n April 23, 2018 VCDA terminated Towner.
Towner requested an appeal hearing before the
Commission on VCDA’s termi nation 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
Commiss ion from presiding over the hearing based on an asserted conflict of interest, and to appoint a n independent hearing officer

. On June 28, 201 8 t he Commission denied the
motion. On August 3
, 2018 the County filed a petition for writ of
mandate in the Ventura S uperior C ourt, 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

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-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 o f the independent investigator’s report recommending the allegation of dishonesty against Towner be sustained , as well as the March 15 and April 23, 2018 notice s of disciplinary action relating to
Towner’s termination

. T he 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 t he 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 exhib i ts to its petition. T he 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 Cou nty 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 , t he 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 Coun ty, 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 viola ted 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 Defendant s ’ Special Motion T o 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 Count y defendants argued that because the conduct alleg ed
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 defendant s ’ right of petition. The County defendants asserted Towner c ould not establish a probability of prevailing on his claims because7

POBRA does not protect against disclosure of confidential
information and there is no p rivate right of action for violations
of section 832.7

. Further, the filing of the writ petition was
abs olutely 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 a s an exhibit to his opposition an Attorney General opinion interpreting Government Code section 1222, wh ich 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 conclud ed “[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 Op s

. Cal. Atty

. Gen. 246 (1999 )

. ) At a hearing on March 11, 2020 the trial court granted the County defendants’ motion. In its wri tten ruling t he 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, the8

court held Towner failed to sh ow 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 disclos ure 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);

s ee 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 publ ic 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 showing9

has been made, it then must consider whether th e 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, bu t 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 Under lying 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, 7 8 .) “‘[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 t he anti

- SLAPP statute.’ ” ( Park

, at p. 1063.) “Instead, the focus is on deter mining 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 of10

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 anti

SLAPP 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 defendan ts 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 state ments made before a judicial proceeding authorized by law, pursuant to Code of Civil Procedure
section 42 5.16, subdivision (e)(1)

. “‘ “ A ny 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 “ qualifyi ng acts committed by attorneys in representing clients in litigation ”].) Towner does not dispute that the filing of written documents in a j udicial proceeding generally fall s within the protection of the anti

- SLAPP statute , but he contends Code of
Civil Pr ocedure 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 multi million

- dollar settlement. ( Flatley, supra , 39 Cal.4th at pp. 30 7

- 30 9 .) 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 anti

SLAPP statute to strike the plaintiff ’ s actio n. In reaching this conclusion, we emphasize t hat 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 esta blish 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 defendant12

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
defen dant 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 C al.App.4th 1644, 1654 [ defendant ’s alleged
violat ions of § 290.46, subd. ( l ) , which prohibits certain use s 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] pla intiff ’ 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 th e anti

SLAPP statute merely by showing any statutory violation. ” ( Mendoza

, at p. 1654 .) Towner contends the County defendants violated s ection 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 ’ records13

and ‘ information obtained from these records, [] are c onfidential 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 relat ing 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
A lthough s ection 832.7 provides a comprehensive and
detailed scheme for the disclosure of confidential law enforcement

pers onnel 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 ( o mission ) 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 pr ovides that a party seeking disclosure of peace officer personnel records must file a written motion showing good cause for the disclosure. ( Id.

, subd s . (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 t he Attorney General ’s opinion “[t]he disclosure of peace officer pe rsonnel 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 .) Alt hough we are not bound by the Attorney General’s interpretation of a

statute
, “ ‘[ a ]bsent controlling authority, [the Attorney Ge neral ’ 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.3 d 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. ’ ”] .)
T he County defendants do not argue their failure to follow
the requirements of s ection 832.7 was not willful , nor do they argue Government Code s ection 1222 does not apply to omissions
under section 832.7

. Instead , t he County defendants contend they were not required to comply with section 832.7 before public ly disclos ing Towner’s personnel files in the writ proceeding

, pointing to language in section 832.7, subdiv ision (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 the ir conduct fell within this exception because the writ proceeding was a part of VCDA’s investigat ion of Towner’s conduct. The County defendants read
the sta tutory exception too broadly

. T he 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 p olice officers charged with fel ony 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 att orney had properly obtained the test results under
the “ limited exception ” for investigations and proceedings16

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

, at p p . 61 5 , 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 a rgument “ the exception in section 832.7, subdivision (a) applies to both it s 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 n o 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 sect ion 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 crim inal 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 c ourt 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 dist rict attorney to maintain the nonpublic nature of the files absent17

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 exc eption 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 pu blic duty enjoined by law ( G ov. Cod e, § 1222), and was therefore not protected activity under the anti

- SLAPP statute

.

8 At oral argument, defense counsel sought to di stinguish Fagan as involv i ng 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 ’ argument s under the sec ond 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, subdivisio n (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 specia l 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 a n order denying the motion

. Towner is to recover his costs on appeal.

FEUER, J.
W e concur :

PERLUSS , P. J.

SEGAL , J.