Filed 10/1/21 Smith v. Williams-Sonoma CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

KELLIE SMITH,

Plaintiff and Respondent,

v.

WILLIAMS-SONOMA, INC., et al.,

Defendants and Appellants.

 B305144

 (Los Angeles County

 Super. Ct. No. 

 19STCV36093)

APPEALS from an order of the Superior Court of Los 

Angeles County, Terry A. Green, Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Orrick, Herrington & Sutcliffe, Frank N. Zalom, Lynne C. 

Hermle and Julia C. Riechert for Defendants and Appellants.

Doumanian & Associates, Nancy P. Doumanian; The Arkin 

Law Firm and Sharon J. Arkin for Plaintiff and Respondent.

_____________________________________
2

Respondent Kellie Smith sued appellant Williams-Sonoma, 

Inc. (WSI) alleging workplace misconduct. WSI moved to strike 

the complaint as a strategic lawsuit against public participation

(SLAPP). (Code Civ. Proc., § 425.16; Bonni v. St. Joseph Health 

System (2021) 11 Cal.5th 995, 1007, fn. 1 (Bonni).)1 An antiSLAPP motion is “a procedure for weeding out, at an early stage, 

meritless claims” that chill First Amendment rights. (Baral v. 

Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)

On de novo review, we conclude that Smith cannot assert 

claims arising from WSI’s (1) protected right to report employee 

theft to police and (2) preparatory investigation before calling 

police. However, claims of workplace misconduct under the Fair 

Employment and Housing Act (FEHA), wrongful termination in 

violation of public policy, and emotional distress do not arise from 

WSI’s protected conduct in investigating and reporting theft to 

police and do not fall within section 425.16.

FACTS AND PROCEDURAL HISTORY

Smith’s Complaint

WSI hired Smith in 2005. She began as an associate, 

became a coordinator, and was promoted to assistant store 

manager in 2010. She voluntarily left WSI in 2011. When she 

later returned to WSI’s employ, she was not given a managerial 

position. She alleges that WSI has a poor attitude toward female 

employees and is reluctant to promote them.

In 2012, Smith secured a lead position in inventory control 

at WSI’s distribution center. By 2018, she was the lead person in 

charge of customer returns. Though she supervised 30 

1 Undesignated statutory references are to the Code of Civil 

Procedure. Codefendant WSI managers Christopher Cuyler, 

Wesley Hashimoto, and Efren Sierra also appeal.
3

employees, Smith claims she had “no real management duties 

when compared to her male counterparts.” She believes men are 

paid more and criticized less than woman employees at WSI. She 

asserts that WSI created a hostile environment, placing women 

in entry level positions at undesirable stores, not promoting them 

as quickly as men, and treating them without respect.

Smith alleges that she complained of violations of law and 

company policy, specifically about maltreatment of herself and 

other women. As a result of her complaints, WSI subjected her to 

adverse employment actions, including criticism, discipline, 

demotions, denial of salary or bonuses, and termination.

WSI terminated Smith’s employment on June 14, 2018. It 

accused her of theft, fraud, dishonesty, and violation of company 

policy. She denies wrongdoing and alleges that WSI did not give 

her or other women the opportunity to defend themselves. Male 

employees who engaged in fraud, theft, and dishonesty were not 

punished as harshly as their female colleagues.

WSI “initiated the filing of criminal charges and a criminal 

prosecution” by making a police report. Smith had to hire an 

attorney and suffered emotional distress by becoming the target 

of a criminal investigation. Though prosecutors did not press 

charges against her, the incident damaged her reputation and 

ability to find work.

Smith’s complaint asserts 13 causes of action. This 

includes six alleged violations of FEHA; wrongful discharge in 

violation of public policy; defamation; emotional distress; 

malicious prosecution; and abuse of process.

Appellants’ Motion to Strike

WSI’s motion detailed the circumstances leading to Smith’s 

termination. In April 2018, WSI’s accounting department noticed 
4

that returned merchandise designated for resale was “scrapped.” 

WSI investigated why saleable goods were scrapped.

Operations manager Luz Villanueva declared that WSI has 

a system to process returns, including furniture and home 

accessories. Returned goods are inspected and assigned a 

designation. A “retail” designation means an item will be sent to 

a retail store or used to fulfill an online order. “Outlet” items are 

sent to outlet stores for resale. Some items are repaired and 

resold; some are sold to a liquidator. Valueless items unsuitable 

for resale are designated “donation” or “scrapped.”

WSI has a charitable program to donate scrapped goods to 

Habitat for Humanity (Habitat). WSI employees load items 

designated for donation into trailers; Habitat then hauls the 

trailers from WSI. Saleable goods are not donated to Habitat.

WSI discovered that Smith was responsible for scrapping 

saleable goods on April 7, 2018. Documentation showed that four 

trailers of goods worth hundreds of thousands of dollars were 

designated “outlet.” Smith manually changed the designation to 

“scrapped,” making the goods worthless. When confronted, Smith 

claimed appellants Sierra and Cuyler walked by her that day; she 

asked to send the trailers to Habitat and they agreed. Smith also 

blamed Hashimoto for allowing her to scrap the trailers. The 

three managers denied authorizing Smith to scrap saleable 

goods.

WSI’s charitable program was run by inventory manager 

Keith Wong. WSI’s investigation revealed that Wong paid a 

Habitat driver to take trailers bound for Habitat to Wong’s home.

Loss prevention manager Torri Piper, a former federal 

agent, conducted her investigation with an eye toward criminal 

prosecution or civil litigation. She discovered that Wong diverted 
5

goods designated for sale at WSI outlets. He wrote the names of 

WSI associates on merchandise so they could buy it cheaply at a 

Habitat thrift store. Trailers scrapped by Smith on April 7 went 

to Wong. Wong and 12 other WSI employees were involved in 

this scheme.

As a result of the investigation, WSI’s director of human 

resources (HR), Kecia Bailey, terminated 13 male and female 

employees. Smith was terminated for improperly scrapping 

saleable merchandise, causing WSI to lose over $100,000.

Bailey declared that WSI employees must adhere to polices 

requiring respect and equality and prohibiting harassment, 

discrimination, and retaliation, as described in the employee 

handbook. Bailey is available to hear concerns and investigates 

complaints about policy violations. WSI’s business records 

contain no complaints from Smith of harassment, discrimination 

or retaliation, nor did she disclose unlawful conduct or activities. 

No records show she was denied promotions.

Luz Villanueva was Smith’s direct supervisor. They 

interacted regularly yet Smith never complained of harassment, 

discrimination, or retaliation. Had Villanueva observed 

misconduct, she would have intervened and reported it to HR.

The WSI managers named in Smith’s complaint denied 

that they harassed or discriminated against her, or observed any 

misconduct against her, or heard her complain of harassment, 

discrimination, or retaliation. They had little interaction with 

her and did not direct her to scrap goods designated for sale in 

WSI outlet stores.

Piper presented her findings to the Los Angeles County 

Sheriff’s Department. Based on Smith’s conduct in scrapping 

trailers diverted to Wong and refusal to cooperate with law 
6

enforcement, a detective arrested Smith. Criminal charges were 

brought against Wong. Smith was not prosecuted.

Smith Dismisses Four Claims

After receiving WSI’s motion to strike, Smith dismissed, 

without prejudice, her causes of action for defamation, malicious 

prosecution, and abuse of process.

Smith’s Opposition

Smith asserted that WSI’s motion became moot when she 

dismissed claims arising from WSI’s report to law enforcement. 

She contended that the remaining claims do not arise from 

protected activity. They relate to FEHA violations, wrongful 

termination in violation of public policy, and emotional distress. 

She argued that the “theft incident on the job is but an ancillary 

component of [her] work experience” at WSI and “the gravamen 

of the complaint” is gender discrimination, harassment, and 

retaliation.

Attached to Smith’s opposition is her claim to the state 

Department of Fair Employment and Housing on May 30, 2019. 

The claim states that WSI took adverse action on June 14, 2018,

by terminating her based on “ancestry, sex/gender,” for 

complaining about violations of rules, policies, procedures, and 

law, and due to harassment, discrimination, and retaliation.

Smith declares that she was arrested for grand theft in 

July 2019. She was not prosecuted but the arrest affects her 

work opportunities. She states on information and belief that—

relative to male employees—female employees are not promoted 

or equally paid; female employees were criticized more harshly, 

looked down upon, spoken to in a negative and derogatory way, 

made to feel weak, helpless, and valueless, and not treated with 

respect and dignity. Smith’s male coworkers were not subject to 
7

the same level of scrutiny during WSI’s theft and fraud 

investigation, and Smith believes she is the only female who was 

terminated.

Appellants’ Reply

Appellants observed that Smith concedes that four of her 

claims fall within the anti-SLAPP statute. They argued that her 

remaining claims are similarly premised on WSI’s protected 

activity of reporting suspected fraud and theft. Moreover, Smith 

did not carry her evidentiary burden of proving a probability of 

prevailing with admissible evidence. She did not recite facts 

showing she was harassed, or that WSI discriminated or 

retaliated against her.

The Trial Court’s Ruling

At the hearing on WSI’s motion to strike, the court stated 

that WSI’s report to the police was protected activity; however, it 

concluded that the anti-SLAPP statute does not apply to Smith’s 

claims of discrimination or wrongful termination. The court 

acknowledged that she did not allege facts about harassment, 

gender discrimination, or bias.

The court granted WSI’s motion in part, striking Smith’s 

causes of action for defamation, abuse of process, and malicious 

prosecution. It ordered Smith to file an amended pleading 

removing allegations relating to WSI’s report to law enforcement. 

The court denied WSI’s motion as to Smith’s FEHA claims, 

wrongful discharge, retaliation, and emotional distress, finding 

they did not arise from protected activity.

WSI and the individual defendants appealed. Smith did 

not cross-appeal the order striking four of her claims.
8

DISCUSSION

1. Appeal and Review

Appeal lies from an order granting or denying an antiSLAPP motion. (§ 425.16, subd. (i).) Review is de novo. (Oasis 

West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis).) 

We independently review the record to determine if challenged 

claims arise from protected activity. (Park v. Board of Trustees of 

California State University (2017) 2 Cal.5th 1057, 1067 (Park).)

The anti-SLAPP statute is “construed broadly.” (§ 425.16, 

subd. (a); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 

728, 735.) We examine “the pleadings, and supporting and 

opposing affidavits stating the facts upon which the liability or 

defense is based.” (§ 425.16, subd. (b)(2).) “The court does not 

weigh evidence or resolve conflicting factual claims. Its inquiry is 

limited to whether the plaintiff has stated a legally sufficient 

claim and made a prima facie factual showing sufficient to 

sustain a favorable judgment. It accepts the plaintiff's evidence 

as true, and evaluates the defendant’s showing only to determine 

if it defeats the plaintiff’s claim as a matter of law.” (Baral, 

supra, 1 Cal.5th at pp. 384–385.)

2. Forfeited Claims

Smith did not cross-appeal the ruling striking her claims 

for defamation, malicious prosecution, and abuse of process. The 

court found that WSI’s report to law enforcement is protected 

activity. (See, e.g., Siam v. Kizilbash (2005) 130 Cal.App.4th 

1563, 1569–1570 [defendant’s report to police that plaintiff 

abused children falls within § 425.16]; Chabak v. Monroy (2007) 

154 Cal.App.4th 1502, 1511–1512 [defendant’s report to police 

that a therapist touched her inappropriately was protected 

activity, though no criminal charges were filed].) By failing to 
9

appeal, Smith forfeited her right to argue that claims arising 

from WSI’s report to the sheriff were improperly stricken.

3. Two-Step SLAPP Analysis

A plaintiff cannot maintain a cause of action arising from

any act in furtherance of the constitutional right of petition or 

speech in connection with a public issue. (§ 425.16, subd. (b)(1); 

Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 

53, 67.) The statute applies to any statement made in a 

legislative, executive, judicial or other official proceeding and 

“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 matter of public 

interest. (§ 425.16, subd. (e).) The weeding out process is 

deployed if a complaint alleges both protected and unprotected 

activity. Offending allegations arising from protected activity 

must be stricken. (Baral, supra, 1 Cal.5th at pp. 393–396.)

Our analysis requires two steps. The defendant has the 

initial burden of showing that a claim is based on protected 

activity. Once this showing is made, the second step shifts the 

burden to the plaintiff to demonstrate a probability of prevailing

on the claim. We determine whether the plaintiff’s showing is

legally sufficient and factually substantiated, so as to sustain a 

favorable judgment if accepted by a trier of fact. “If not, the claim 

is stricken.” (Baral, supra, 1 Cal.5th at p. 396.)

a. WSI’s Initial Burden of Showing that Smith’s Claims 

Arise From Protected Activity

Our focus at the initial stage “is not on the form of the 

plaintiff’s cause of action but, rather, the defendant’s activity that 

gives rise to his or her asserted liability—and whether that 

activity constitutes protected speech or petitioning.” (Navellier v. 

Sletten (2002) 29 Cal.4th 82, 92; Baral, supra, 1 Cal.5th at p. 393 
10

[statute is “designed to shield a defendant’s constitutionally 

protected conduct from the undue burden of frivolous litigation”].)

The defendant must make a threshold showing that its acts were 

in furtherance of its rights of petition or free speech in connection 

with a public issue. The illegitimacy of the protected conduct 

“must be resolved as part of a plaintiff’s secondary burden to 

show the action has ‘minimal merit.’ ” (Flatley v. Mauro (2006) 

39 Cal.4th 299, 314, 319–320.)

1. Claims Arising From WSI’s Investigation and Report of 

Employee Criminal Activity

By voluntarily dismissing four of her claims and failing to 

appeal the court’s ruling against her, Smith has conceded that 

some of her claims—relating to WSI’s report to law enforcement 

—arose from protected petitioning activity. The court correctly 

found that “the report to the Sheriff’s department, and all 

allegations of police activity, are protected activity.”

We part ways with the trial court with respect to WSI’s 

investigation of a theft ring among employees to prepare a report 

to give to the sheriff. The court deemed the “investigation before 

they reported to the police” to be unprotected activity under 

section 425.16. We disagree.

An investigation designed to bring illegal activity to the 

attention of government officials is protected activity. 

“ ‘[C]ommunications preparatory to or in anticipation of the 

bringing of an action or other official proceeding are . . . 

statements . . . entitled to the benefits of section 425.16.’ ” 

(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 

1106, 1115 [defendant’s counseling of a tenant regarding her 

landlord’s conduct “apparently was in anticipation of litigation”]; 

Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 710–711 

[defendant’s alleged conspiracy to fabricate child abuse evidence 
11

was protected activity in advance of making a report to a child 

protective agency].)

Section 425.16 shelters communications among private 

individuals in advance of a proposed government complaint if the 

intent is to expose wrongdoing. In Dove Audio, Inc. v. Rosenfeld, 

Meyer & Susman (1996) 47 Cal.App.4th 777 (Dove), a law firm 

wrote to a group of celebrities regarding its suspicion that Dove, a 

music publisher, wrongfully withheld money from charities the 

celebrities had designated as beneficiaries of a recording they 

made. The law firm intended to petition the Attorney General to 

investigate Dove. (Id. at pp. 779–780.)

Division Four of this district concluded that the letter was 

protected in two ways. First, by the litigation privilege, which 

applies to “communications preliminary to a proposed judicial 

proceeding.” (Dove, supra, 47 Cal.App.4th at pp. 781–783.) 

Second, by the anti-SLAPP statute. Though the letter was not 

made in a legislative, executive, or judicial proceeding or in 

connection with a matter under official consideration, it raised a 

matter of public interest and contemplated a government 

complaint, implicating the right to petition. (Id. at pp. 783–785.)

WSI investigated its property loss with the intent to pursue 

litigation or prosecution. Its report resulted in criminal 

prosecution. The investigation was itself in furtherance of the 

right of petition. (§ 425.16, subd. (b)(1).) The sheriff questioned 

Smith and found probable cause to arrest her, though WSI did 

not accuse her of theft. WSI’s conduct is protected: It was 

designed to prompt action by the sheriff and district attorney. An 

employer enjoys protection when rooting out defalcation by 

employees for purposes of making a police report.
12

2. Claims Relating to Gender Discrimination

Smith’s complaint alleges numerous FEHA violations. She 

claims WSI rarely promotes female employees; paid men more 

than similarly situated females; created a hostile environment for 

female employees; criticized female employees more harshly; 

spoke to females in a derogatory tone and distained them; and 

made females feel undervalued and disrespected. Due to her 

gender, Smith was allegedly subjected to a hostile environment, 

harassment, and discrimination at WSI.

Smith’s reports of violations of law and company policy 

resulted in adverse employment actions such as discipline or 

reprimands, nonpayment of salary or bonuses, demotions, 

placement in undesirable assignments, and so on. Smith’s claims 

of disparate treatment, hostile environment, and retaliation are 

not underlain by facts showing the dates, places, or people 

involved in the alleged FEHA violations. Nonetheless, they are 

not “extraneous” “trivial” “passing references” as WSI argues.

As weak as Smith’s FEHA claims are in her complaint, 

they survive an anti-SLAPP motion.2 (Bonni, supra, 11 Cal.5th 

2 Smith’s ability to survive an anti-SLAPP motion does not 

preclude appellants from demurring to an amended complaint or 

from seeking summary judgment. Among other things, she must 

adequately allege—and eventually produce evidence of—

pervasive or severe harassment. (Aguilar v. Avis Rent A Car 

System, Inc. (1999) 21 Cal.4th 121, 130–131; Hughes v. Pair 

(2009) 46 Cal.4th 1035, 1042–1044 [there is no recovery for 

harassment that is occasional, sporadic, or trivial]; Ramirez v. 

Wong (2010) 188 Cal.App.4th 1480, 1488 [complaint dismissed 

that listed “only one instance” of harassment and made 

conclusory allegations]; Fisher v. San Pedro Peninsula Hospital

(1989) 214 Cal.App.3d 590, 614 [sustaining demurrers to FEHA 
13

at p. 1012 [“to the extent any acts are unprotected, the claims 

based on those acts will survive”]; Verceles v. Los Angeles Unified 

School Dist. (2021) 63 Cal.App.5th 776, 785–788.) They stand 

apart from WSI’s report to law enforcement of criminal activity.

It is not protected conduct to engage in discriminatory, 

harassing, or retaliatory practices in the workplace. (Park, 

supra, 2 Cal.5th 1057 [anti-SLAPP statute did not apply to a 

professor’s discrimination claim]; Wilson v. Cable News Network, 

Inc. (2019) 7 Cal.5th 871, 891 [only in a “relatively unusual case”

can a defendant accused of retaliation or discrimination meet its 

first-step burden of showing that its challenged actions qualify as 

protected activity].) An employee may maintain a FEHA lawsuit, 

despite an anti-SLAPP motion, not because discrimination was 

carried out by means of speech, but because “the defendant 

denied the plaintiff a benefit, or subjected the plaintiff to a 

burden, on account of a discriminatory or retaliatory 

consideration.” (Park, at p. 1066.)

Smith’s discrimination, whistleblower, or retaliation claims 

do not involve protected activity. In asserting FEHA claims—and 

emotional distress and wrongful termination arising from the 

alleged violation of her civil rights—Smith has not chilled WSI’s 

speech or petitioning rights. These claims do not meet the first 

prong of section 425.16.

WSI agrees that Smith’s complaint “wove in cursory, 

nonspecific allegations of unprotected activity.” It nonetheless 

insists that all of Smith’s claims are barred because her FEHA 

claims incorporate by reference allegations of protected activity 

asserted elsewhere in the complaint. For example, they 

sexual harassment and retaliation causes of action because the 

complaint did not allege pervasive conduct].)
14

incorporate paragraph 14 of the complaint, which alleges that 

WSI wrongfully “initiated the filing of criminal charges” by 

reporting a theft ring to the sheriff.

Smith’s lawsuit is not doomed by the presence of offending 

claims among other allegations that are unrelated to protected 

conduct. To the extent her complaint contains allegations arising 

from WSI’s protected conduct, such as uncovering and reporting 

an employee theft ring to law enforcement, those allegations 

must be stricken from the pleading. (Baral, supra, 1 Cal.5th at 

pp. 394–396 [within a cause of action containing both protected 

and unprotected conduct, offending unmeritorious allegations 

must be stricken].) As the trial court ordered, Smith must “file 

an amended complaint which removes the offending allegations 

and causes of action.”

b. Probability of Prevailing on the Merits

A plaintiff must demonstrate a probability of prevailing on 

her claims to defeat the motion to strike. This requires a showing 

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, supra, 51 Cal.4th at p. 820; Wilson v. Parker, Covert & 

Chidester (2002) 28 Cal.4th 811, 821.) “The prima facie showing 

of merit must be made with evidence that is admissible at trial. 

[Citation.] Unverified allegations in the pleadings or averments 

made on information and belief cannot make the showing.” 

(Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289; Contreras v. 

Dowling (2016) 5 Cal.App.5th 394, 405.)

1. WSI’s Investigation to Report Criminal Activity

As discussed above, WSI’s report of employee theft was 

protected activity in anticipation of initiating a government 
15

inquiry. The burden shifts to Smith to show a probability of 

prevailing on her claims regarding WSI’s investigative report. If 

she cannot demonstrate a probability of prevailing on her claim, 

the court must strike it.

Smith did not demonstrate a probability of prevailing. She 

makes no showing that WSI’s investigation was undertaken in 

bad faith nor does she deny that it resulted in prosecution. The 

law protecting privileged communications made in government

proceedings or in the initiation of such proceedings applies here. 

(Civ. Code, § 47, subd. (b).)

An employer’s statements to police “concern[ing] the details 

of [his] investigation and his request that the police conduct 

further investigation into his suspicions of [an employee’s] 

criminal activity” are absolutely privileged. (Williams v. Taylor 

(1982) 129 Cal.App.3d 745, 753.) “[A] communication concerning 

possible wrongdoing, made to an official governmental agency 

such as a local police department, and which communication is

designed to prompt action by that entity, is as much a part of an 

‘official proceeding’ as a communication made after an official 

investigation has commenced” because public policy encourages 

open communication between citizens and public authorities. (Id.

at pp. 753–754.) “The privilege must extend to actions based on 

negligent investigation, for if it did not, the privilege for reports 

to the police would be eviscerated.” (Devis v. Bank of America

(1998) 65 Cal.App.4th 1002, 1008–1009; Hagberg v. California 

Federal Bank (2004) 32 Cal.4th 350, 368 [bank customer wrongly 

detained, handcuffed and searched by police cannot sue for the 

misbegotten investigation that led to the bank’s 911 call].)

Piper spoke to WSI employees while investigating the 

suspicious loss of four trailers of saleable merchandise and gave 
16

the sheriff her report, including witness statements. The report 

led to arrests and prosecution. (Kerner v. Superior Court (2012) 

206 Cal.App.4th 84, 121–122 [defendant’s conduct in hiring 

private investigators to encourage the city attorney to prosecute 

the plaintiff is protected by the official proceeding privilege].) By 

compiling information to give to the sheriff, WSI furthered “the 

important public policy of encouraging the reporting of suspected 

crimes by ordinary citizens.” (Sheldon Appel Co. v. Albert & 

Oliker (1989) 47 Cal.3d 863, 872, fn. 5.)

As a matter of law, Smith cannot prevail because

investigating and reporting a suspected crime is absolutely 

privileged. (Hagberg v. California Federal Bank, supra, 32 

Cal.4th at p. 368 [communications “made in preparation for or to 

prompt investigation” are privileged]; Kenne v. Stennis (2014) 230 

Cal.App.4th 953, 971–972.) Smith must extirpate from her 

pleading allegations regarding appellants’ investigation in 

preparation for contacting the sheriff.3

2. Smith’s FEHA Claims

We do not reach the issue of whether Smith is likely to 

prevail on her claims arising from alleged violations of FEHA 

(gender-based hostile environment, discrimination, harassment,

and retaliation), wrongful termination in violation of public 

3 For example, paragraph 14 of the complaint alleges that 

WSI “encouraged and initiated the filing of criminal charges and 

a criminal prosecution of the plaintiff without a scintilla of 

evidence of any criminal or wrongful acts by the plaintiff during 

her employment. As a result of the employer’s unfounded 

accusations, the plaintiff became the subject of criminal 

prosecution initiated by the filing of a false police report by the 

employer and its management when there was no evidence of any 

wrongdoing whatsoever on the part of the plaintiff.”
17

policy, whistleblower and emotional distress claims. To the 

extent that these claims arise from gender-based misconduct (not 

from WSI’s investigation of criminal activity and report to law 

enforcement), they do not arise from protected activity. They are 

not subject to a motion to strike under section 425.16, disposing 

of the need to address whether Smith will prevail on her claims. 

(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80–81.)

DISPOSITION

We affirm the court’s order striking Smith’s eighth, ninth, 

twelfth, and thirteenth causes of action and ordering her to

remove from the complaint all references to appellants’ report to 

law enforcement. We affirm the court’s order denying appellants’ 

motion to strike Smith’s first, second, third, fourth, fifth, sixth, 

seventh, tenth, and eleventh causes of action.

We reverse the portion of the court’s order denying 

appellants’ motion to strike from the complaint claims arising 

from appellants’ privileged conduct in investigating employee 

theft for the purpose of reporting it to law enforcement and 

prompting official action on criminal activity.

The case is remanded to the trial court for further 

proceedings consistent with this opinion. This includes the filing 

of an amended complaint (a) removing references to theft or fraud 

investigations and reports and (b) alleging facts sufficient to give 

appellants notice of incidents of gender-based discrimination, 

harassment, hostile environment, whistleblowing, and wrongful 

termination in violation of public policy.
18

The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.