Filed 2/4/16 Hughes v. California Dept. of Corrections CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

CHARLES HUGHES,

Plaintiff and Respondent,

v.

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND 

REHABILITATION AND MATTHEW 

CATE,

Defendants and Appellants.

 B253725

 (Los Angeles County

 Super. Ct. No. BC454639)

APPEAL from orders of the Superior Court of the County of Los Angeles, 

Barbara A. Meiers, Judge. Reversed.

Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Senior Assistant 

Attorney General, Kenneth C. Jones, Supervising Deputy Attorney General, Nancy G. 

James and Robert D. Petersen, Deputy Attorneys General for Defendants and Appellants.

Law Offices of Stephen J. Horvath, Stephen J. Horvath, Marcus J. Berger; 

Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Plaintiff and 

Respondent.
2

INTRODUCTION

Defendants and appellants the Department of Corrections and Rehabilitation and 

Matthew L. Cate (the Department) filed a special motion to strike under the anti-SLAPP 

statute1―Code of Civil Procedure 425.162―seeking to strike, inter alia, the FEHA3

retaliation claim filed by plaintiff and respondent Charles Hughes (plaintiff). The trial 

court granted the motion to strike the FEHA retaliation claim and plaintiff did not appeal 

from that directly appealable order. 

Two years after the trial court struck the FEHA retaliation claim, plaintiff moved a 

different trial court for leave to file an amendment to his operative complaint to add a 

FEHA retaliation claim based on newly discovered facts that had occurred after the filing 

of the original complaint, as well as certain of the allegations that supported his original 

FEHA claim. The trial court granted the motion and the Department again moved to 

strike the new FEHA retaliation claim under the anti-SLAPP statute. The trial court 

denied the second anti-SLAPP motion, and the Department timely appealed from that 

order, arguing, inter alia, that the trial court was not authorized to grant leave to amend a 

claim that had previously been stricken under the anti-SLAPP statute. 

We hold that the trial court lacked the authority to allow an amendment that 

circumvented the final, binding ruling striking the FEHA retaliation claim. We further 

hold that, assuming the trial court had discretionary authority to allow an amendment 

limited to newly discovered facts, the trial court nevertheless erred by denying the antiSLAPP motion to the FEHA retaliation claim based on those newly discovered facts. We 

 

1

SLAPP is an acronym for “Strategic Lawsuit Against Public Participation” 

(Equilon Enterprises, LLC v. Consumer Common Cause, Inc. (2002) 29 Cal.4th 53, 57, 

fn. 1.)

2 All further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.

3

The California Fair Employment and Housing Act, Government Code section 

12900 et seq.
3

therefore reverse the orders granting leave to file an amendment to the operative 

complaint and denying the second anti-SLAPP motion.

FACTUAL BACKGROUND

A. First Action4

In December 2005, plaintiff—a correctional lieutenant employed by the 

Department and assigned to the California State Prison-Los Angeles County (the 

prison)—was terminated by the Department. In 2006, plaintiff filed a FEHA action 

against the Department claiming he was terminated in retaliation for engaging in 

protected activities (first action). Plaintiff also appealed the Department’s decision to 

terminate him to the State Personnel Board (Board). In April 2009, the Board reinstated 

plaintiff to his former position. Thereafter, a jury in the first action returned a verdict in 

favor of plaintiff in the amount of $1,670,393.37. The Department appealed from the 

judgment on the verdict, and in January 2014, this court affirmed the judgment.

B. Plaintiff’s Alleged Conduct While Separated from State Service

During the 45-month period from December 2005 to September 2009 that plaintiff 

was separated from state service, he remained the local union chapter president of the 

California Correctional Police Officers Association. While acting in his capacity as 

union president, plaintiff’s interactions with Department personnel resulted in allegations 

 

4

The factual and procedural discussion about the first action between plaintiff and 

the Department is taken from our first unpublished opinion filed in that case, number 

B238134. The Department requested that we take judicial notice of our first opinion in 

the first action, as well as our subsequent opinion in that action affirming the trial court’s 

order denying plaintiff prejudgment interest on lost earnings, which requests we granted. 

The Department also requested that we take judicial notice of a judgment of the Superior 

Court of the County of Sacramento denying plaintiff’s petition for writ of mandate, and 

we grant that request as well.
4

of misconduct against him, including allegations that he threatened former coworkers and 

entered prison grounds unescorted in violation of prison policy.

C. Investigation of Alleged Misconduct and Investigative Closure Letter

In 2009, the Department conducted an investigation into plaintiff’s conduct during 

the period he was separated from state service. An investigator from the office of internal 

affairs interviewed 17 witnesses and prepared a 64-page report with 52 exhibits attached. 

In August 2010, the Department sent plaintiff an investigative closure letter (closure 

letter) informing plaintiff that the Department had concluded its investigation and 

determined that nine of the ten allegations against plaintiff were either “not sustained” or 

had resulted in “no finding” being made. The Department, however, sustained the 

allegation that plaintiff had filed a false claim with the Bureau of State Audits against a 

deputy warden. Notwithstanding that finding, the Department did not dismiss or suspend

plaintiff, reduce his pay, or issue a letter of reprimand to him.

D. Administrative Time Off

The Board reinstated plaintiff to his former position in April 2009, but the 

Department did not restore plaintiff to the payroll until September 2009.5 At that time, 

the investigation of plaintiff’s alleged misconduct during the time he was separated from 

state service was ongoing. As a result, the Department placed plaintiff on administrative 

time off on September 16, 2009. The letter informing plaintiff of that decision advised 

him that he would be on paid leave under the supervision of Associate Director Mike

 

5

Plaintiff refers to the five-month period between the issuance of the Board’s 

reinstatement order and his reinstatement by the Department as a “constructive 

suspension.”
5

Knowles6and that he was required during regular business hours to call a supervisor 

before he left home, a requirement that plaintiff refers to as “home confinement.”

PROCEDURAL BACKGROUND

A. Complaint

Plaintiff filed the instant action in February 2011, alleging 11 causes of action. 

The first cause of action alleged retaliation under FEHA; the second cause of action 

alleged failure to prevent discrimination, harassment, and retaliation under FEHA; the 

third cause of action alleged retaliation under Labor Code section 1102.5, subdivision (b); 

and the fourth through eleventh causes of action alleged violations of the Public Safety 

Officers’ Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.).

The FEHA and Labor Code retaliation claims were based on the following alleged 

adverse employment actions: (i) the imposition by the Department of a five-month 

constructive suspension by delaying compliance with the Board’s April 2009 

reinstatement order; (ii) the institution by the Department of a new investigation based on 

plaintiff’s alleged misconduct during the period he was separated from state service; (iii) 

the imposition by the Department of administrative time off that was the equivalent of 

home confinement; (iv) the Department’s failure to pay plaintiff back-pay, benefits, and 

interest in violation of Government Code section 19584; and (v) the issuance by the 

Department of the closure letter which included a sustained finding of dishonesty against 

plaintiff and denied him his due process rights, including his right to a Skelly hearing 7or 

a right to appeal to the Board. 

 

6 Because Associate Director Knowles was assigned to Department headquarters in 

Sacramento, plaintiff refers to his supervision by Knowles as a “constructive transfer” from 

his former position at the prison.

7

“Skelly hearing” refers to the administrative hearing required by Skelly v. State 

Personnel Board (1975) 15 Cal.3d 194 [state statutory scheme regulating civil service 

employment recognizes that a permanent civil service employee has a property interest in 

continued employment that is protected by due process].
6

B. First Anti-SLAPP Motion

In response to the complaint, the Department filed an anti-SLAPP motion under 

section 425.16. The trial court, Judge Charles Palmer presiding, granted the motion as to 

the first cause of action for retaliation under FEHA and the third cause of action for 

retaliation under Labor Code section 1102.5, subdivision (b). In partially granting the 

motion, the trial court concluded as follows: “As to the first and third causes of action, 

an element of each of them is that the plaintiff suffered an ‘adverse employment action.’ 

Paragraph 31 of the complaint sets forth the alleged adverse employment actions of the 

defendants which form the basis for these causes of action. Among the five actions 

alleged in Paragraph 31 are ‘instituting a new and frivolous misconduct investigation

including subjecting plaintiff to an eight-hour administrative interrogation’ and 

‘unlawfully and maliciously notifying plaintiff that the misconduct investigation resulted 

in a sustained finding of dishonesty against him without any “Skelly” rights.’ These 

allegations describe protected activity of the defendants. The investigation of misconduct 

by its employees and communicating the findings of that investigation are free speech 

rights of the [Department] and involve public issues. [¶] . . . [¶] Regarding the first and 

third causes of action which the court has found do arise out of protected activity, the 

court turns to the second step of the SLAPP determination—whether plaintiff has made a 

prima facie showing of a probability of prevailing. [¶] Plaintiff submits three 

declarations in support of his claims. The court has sustained all but one of [the 

Department’s] evidentiary objections to those declarations and their respective exhibits. 

Moreover, even if the objections had not been sustained, plaintiff would fail to show a 

probability of prevailing at trial. [¶] . . . [¶] Insofar as no further evidence has been 

submitted by plaintiff and the facts stated in the declarations submitted by defendant do 

not constitute a factual showing of a prima facie case, the motion is granted as to the first

[and] third . . . causes of action.” Plaintiff filed a motion to reconsider the trial court’s 

ruling granting the anti-SLAPP motion that the trial court denied in November 2011. As 

discussed below, plaintiff did not appeal from the order granting the anti-SLAPP motion.
7

C. Third Amended Complaint

Following three demurrers by the Department, plaintiff filed a third amended 

complaint. Prior to the due date for a responsive pleading, the action was reassigned 

from Judge Palmer to Judge Barbara Meiers. Thereafter, the Department filed a demurrer 

to the third amended complaint. On May 29, 2013, Judge Meiers held a case 

management conference. At the time, the trial court had not yet received plaintiff’s 

opposition to the demurrer. Nevertheless, the trial court indicated that it was inclined to 

read the opposition papers that plaintiff was prepared to file that day, advance the hearing 

date, and overrule the demurrer. The trial court then voiced its apparent disagreement

with Judge Palmer’s ruling on the first anti-SLAPP motion. “Frankly, I’m not sure I 

would have agreed, or come to the same conclusion as the court that sustained the [antiSLAPP] motion in the case. I’m not sure I wouldn’t, but I’m not at all sure I would. 

Nevertheless, that’s water under the bridge because it was not appealed . . . .” After a 

pause in the proceedings, during which the trial court read plaintiff’s opposition to the 

demurrer, the trial court, with the agreement of the parties, advanced the hearing on the 

demurrer and denied it.

The trial court proceeded to conduct the case management conference, during 

which the court commented that it was unfortunate that the action had not been 

consolidated with the first action. The trial court then made the following comments: 

“You might keep in mind, [plaintiff’s] counsel, unless it’s been eliminated over the 

years—I’ve been on the bench for so long, who knows—there used to be a provision in 

the law that—I hope it’s not gone—that’s called an amendment to the complaint, and that 

is designed to add to a complaint things that have happened after the filing of the 

complaint, and before the trial. So if there are, if there’s, for example, a retaliation case, 

and things have gone on, and remember cases used to wait five year for trial, and over 

those five years [additional] things happened, or sexual harassment [occurred], or any 

number of things [occurred], you don’t have to amend the complaint. You do an 

amendment to the complaint, that might have gotten you where you needed to go, but 

again it’s water under the bridge.” 
8

In apparent response to the trial court’s comments about filing an amendment to 

the complaint in the first action, plaintiff filed a motion to amend the third amended 

complaint in this action to reallege a cause of action for retaliation under FEHA. The 

Department opposed the motion, arguing, inter alia, that plaintiff was precluded from 

amending his FEHA retaliation claim once an anti-SLAPP motion had been granted 

striking that claim, citing Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068 

(Simmons). Following argument, the trial court granted plaintiff leave to reallege a 

FEHA retaliation claim. 

D. Amendment to Third Amended Complaint

Pursuant to the leave granted by the trial court, plaintiff filed an amendment to the 

third amended complaint that asserted three new alleged adverse employment actions, 

each of which had occurred after the filing of the original complaint. The first adverse 

action—dissemination of plaintiff’s confidential personnel records—was based on the 

following allegations: “Based on evidence discovered at deposition by plaintiff on June 

26, 2013, plaintiff is informed and believes and thereon alleges that at some time between 

August 12, 2010 and May 31, 2011, defendants, without providing any notice to plaintiff, 

unlawfully disseminated plaintiff’s personnel records including the ‘Investigative 

Closure Letter’ dated August 12, 2010, which contains the sustained finding of 

dishonesty described in paragraph 31 of the Third Amended Complaint, to numerous 

[Department] employees including but not limited to Associate Director Mike Knowles, 

Undersecretary Scott Kernan, Warden Brian Haws, and Associate Warden Tom Arlitz, 

along with a transmittal email that referred to giving testimony about the included matters 

in a pending proceeding. Such dissemination of plaintiff’s confidential personnel records 

violated California Penal Code, section 832.7(a) and the [Department]’s own policy, 

Department Operational Manual section 33010.314. [¶] Plaintiff is further informed and 

believes and thereon alleges that along with the sustaining finding of dishonesty, 

defendants also published to the same group of officials, all or part of plaintiff’s internal 

affairs investigation file for the 2009 investigation, which was initiated after plaintiff had 
9

prevailed in overturning two separate terminations that were imposed and found to be 

retaliatory acts in the . . . trial [of the first action]. Indeed, Associate Warden Tom Arlitz 

testified that he received a ‘big, huge, thick’ package of plaintiff’s confidential personnel 

records including the Investigative Closure Letter that contained the sustained finding of 

dishonesty and he believed that plaintiff’s confidential records were still somewhere in 

his ‘home.’ Arlitz readily admitted that he was fully aware that plaintiff had a dishonesty 

charge sustained against him by Warden Pat Vasquez. [¶] The investigation file that is 

believed to have been published to these 10 to 12 officials contained approximately 40 

frivolous allegation of misconduct that were the subject of the investigation at one time or 

another. The sustained finding of dishonesty, and the whole investigation file, and all of 

plaintiff’s personnel records and information are protected by confidentiality rights 

established by California Penal Code, section 832.7(a) and case law interpreting this 

section. None of the recipients of the publication of the sustained finding of dishonesty, 

or the investigation file, had any proper, official, legitimate, or lawful reason to receive 

these confidential documents and this confidential information.” 

The second adverse action—continuing refusal to pay accrued interest on back pay 

for December 2005 through June 2006—was based on the following allegations: “As a 

consequence of the [Board] reinstatement order effective April 15, 2009, plaintiff was 

entitled to interest at the legal rate on his back pay award. [¶] . . . [¶] After the [Board] 

issued its reinstatement order effective April 15, 2009, because of the provision of 

Government Code, section 19584 that the deduction from back pay for interim earnings 

does not apply to the first sixth [sic] months of back pay, i.e. from December 2005 to 

June 2006, the Department paid the first six months of back pay on April 14, 2010, albeit 

without interest. Accordingly, plaintiff demanded payment of interest on his back pay for 

that six-month interval. [¶] In response to plaintiff’s demand for payment of interest on 

his back pay from December 2005 through June 2006, plaintiff was informed by Ms. 

Georgia Jones of the Institutional Personnel Office that plaintiff was indeed owed the 

interest demanded, but that Deputy Attorney General Reynolds had instructed her not to 

pay the interest. On or around April 30, 2012, when the payment had not been made, 
10

plaintiff filed an internal ‘EEO complaint’ concerning the non-payment of the increment 

of interest for the interval from December 2005 through June 2006, which was assigned

. . . a [Department] Grievance number [], and was tracked through Institutional Log 

numbers []. [¶] In a letter dated August 13, 2012, signed by Brigid Hanson, Chief of the 

[Department’s] Office of Labor Relations, plaintiff’s grievance for the accrued interest on 

his back pay from December 2005 through June 2006 was denied. The denial was 

contrary to Government Code, section 19584. [¶] In explaining the reasons for denying 

the payment of interest on plaintiff’s back pay, the August 13, 2012 grievance denial 

letter stated: ‘The grievances further allege that you were informed by the Institutional 

Personnel Officer, Ms. Georgia Jones, that you were owed the interest, although she 

advised you Deputy Attorney General Reynolds instructed her not to pay the interest. . . .’ 

. . . After quoting Government Code, section 19584, the grievance denial letter 

concluded, ‘However, since [the prison] was advised by Staff Counsel to suspend 

payment of interest pending the outcome of a motion you filed in Los Angeles County 

Superior Court (Case #[]), a pending case regarding prejudgment interest on your back 

pay, which could affect your interest payment, [the Office of Labor Relations] stands in 

concurrence with the lower level response.’” 

The third adverse action—solicitation of adverse information for use in further 

retaliation—was based on the following allegations: “In April 2012, plaintiff requested 

of [Department] Secretary Matthew Cate that he take action to prevent [the 

Department’s] employees and state attorneys . . . [from] retaliating against him for his 

FEHA-protected activities. The retaliation nevertheless continued, and in May 2012, 

plaintiff discovered additional acts of retaliation directed against him. [¶] On May 24, 

2012, [Department] Correctional Officer L. Ayon reported to [Department] Correctional 

Lieutenant Bruce Frank that a [Department] official was requesting Officer Ayon’s 

assistance for the purpose that ‘We are going to get Hughes.’ Officer Ayon understood 

that the official directing the request to him was seeking information that would result in 

adverse action against plaintiff, because Officer Ayon had previously provided 

[information to] the same official about various other staff. Officer Ayon could only 
11

identify the requesting official as ‘Timmy’ from ‘Folsom.’ Plaintiff is informed and 

believes, and thereon alleges, that the identified official is [California State PrisonSacramento County] Warden Tim Virga, and that Warden Virga was seeking to have 

Officer Ayon keep track of plaintiff, and develop and pass on any information that 

Officer Ayon could provide to support a new adverse action against plaintiff.” 

In addition to alleging the three new adverse employment actions, plaintiff 

reiterated in paragraph A30 of the amendment certain of the adverse employment actions 

upon which his original retaliation claim under FEHA had been based.8 “In addition to 

the retaliatory actions described [above], defendants retaliated against plaintiff by the 

following actions, which are alleged in the Third Amended Complaint: (a) from April 

15, 2009 through September 15, 2009, imposing a constructive suspension by 

intentionally failing to comply with the [Board’s] order of reinstatement for the first five 

months after it was issued; (b) on August 28, 2009, imposing terms of administrative 

Time Off [‘ATO’] that were equivalent to home confinement, despite a total lack of 

departmental authority or precedent for taking such an action; (c) failing to pay plaintiff 

the back-pay and benefits awarded by the [Board], including restoration of plaintiff’s 

retirement service contributions and interest, in violation of Government Code, section 

19584; (d) on or around August 12, 2010, placing a sustained finding of filing a false 

internal complaint in plaintiff’s personnel records without granting plaintiff his rights 

under Government Code, section 3304(b), 3305 and 3306 in connection therewith.” 

After specifying the adverse employment actions upon which his FEHA retaliation 

claim was based, plaintiff alleged that all of those actions were in retaliation for his 

engagement in protected activities and were therefore actionable under FEHA. In effect, 

plaintiff reasserted the FEHA retaliation claim that Judge Palmer had stricken, along with 

three new alleged adverse employment actions.

 

8

In paragraph A30 of the amendment, plaintiff included all of the prior adverse 

employment actions, except the Department’s investigation of his conduct while 

separated from state service.
12

E. Second Anti-SLAPP Motion

In response to the amendment to the third amended complaint, the Department 

filed a second anti-SLAPP motion seeking to strike the renewed FEHA retaliation claim. 

The Department argued that (i) the adverse employment actions that formed the basis of 

plaintiff’s original FEHA retaliation claim had already been adjudicated adversely to 

plaintiff and therefore that claim could not be amended to circumvent that ruling; (ii) the 

adverse employment actions involved the Department’s protected speech or right of 

petition; and (iii) plaintiff could not prevail on the merits of his renewed FEHA 

retaliation claim. Following oral argument, the trial court denied the Department’s 

second anti-SLAPP motion. The Department filed a timely appeal from the order 

denying its second anti-SLAPP motion.

DISCUSSION

A. Orders Granting First Anti-SLAPP Motion and Leave to Amend

After this matter had been fully briefed, we requested that the parties submit letter 

briefs on the issue of the effect of plaintiff’s failure to appeal from Judge Palmer’s order 

granting, in part, the Department’s first anti-SLAPP motion and striking plaintiff’s cause 

of action for retaliation under FEHA.9 Specifically, we questioned whether, in light of 

Judge Palmer’s order, our analysis of Judge Meier’s order denying the second antiSLAPP motion should be confined to the allegations and evidence relating to the newly 

pled adverse employment actions in the amendment to the third amended complaint.

In response to our request, plaintiff submitted a letter brief contending that the

doctrine of issue preclusion10 does not confine our analysis to the allegations and 

 

9 As discussed, following the partial granting of the first anti-SLAPP motion, there 

were still claims pending in the trial court.

10 Plaintiff’s discussion of the doctrine of issue preclusion is inapplicable to this case 

because, in general issue preclusion applies (1) after final adjudication (2) of an identical 

issue (3) actually litigated and necessarily decided in the first suit and (4) asserted in a 
13

evidence relating to newly pled adverse employment actions in the amendment. 

According to plaintiff, the Department forfeited any argument based on the preclusive 

effect of Judge Palmer’s order striking the FEHA retaliation claim by failing to raise the 

issue in the trial court or on appeal. In addition, plaintiff contends that the ruling on the 

first anti-SLAPP motion does not have preclusive effect because the issues before the 

trial court on the second anti-SLAPP motion were not identical to those actually litigated 

and necessarily decided by the ruling granting, in part, the first anti-SLAPP motion.

In its letter brief, the Department contends that because an order granting an antiSLAPP motion prevents a plaintiff from thereafter amending a complaint to circumvent 

that order, the trial court erred in allowing plaintiff to amend his complaint to state a 

FEHA retaliation claim two years after a different judge had stricken plaintiff’s original 

FEHA retaliation claim. Relying on Simmons, supra, 92 Cal.App.4th 1068, the 

Department argues that section 425.16 makes no provision for amending a complaint 

after a finding of protected activity and no such right should be implied. 

In ruling on the Department’s first anti-SLAPP motion, the trial court expressly 

found that two of the five alleged adverse employment actions upon which plaintiff based 

his FEHA retaliation claim arose from protected activity. The trial court therefore 

concluded that as to the FEHA retaliation claim, the Department had met its burden on 

the first prong of the anti-SLAPP statute by showing that the gravamen of plaintiff’s 

FEHA retaliation claim was predicated on protected activity. The trial court then 

analyzed the evidence in support of the FEHA retaliation claim and concluded that 

plaintiff had failed to satisfy his burden—under the second prong of the anti-SLAPP 

statute—of showing a probability of prevailing on his FEHA retaliation claim. Based on 

 

second suit against one who was a party in the first suit or one in privity with that party. 

(See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824-825; Alpha Mechanical, 

Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 

133 Cal.App.4th 1319, 1326-1327.) Here, the final order in issue—Judge Palmer’s order 

striking the FEHA retaliation claim—was made in the same case. Therefore, the issue is 

the effect of that order on our analysis of Judge Meiers’s orders granting leave to amend 

to reinstate the FEHA claim and denying the second anti-SLAPP motion.
14

those conclusions, the trial court granted the anti-SLAPP motion on the FEHA retaliation 

claim and struck that claim, including all the allegations in support of it, from the

complaint.

The trial court’s ruling granting the first anti-SLAPP motion on the FEHA 

retaliation claim was a directly appealable order. (§ 425.16, subdivision (i) [“An order 

granting or denying a special motion to strike shall be appealable under section 904.1; §

904.1, subdivision (a)(13) [authorizing appeal “[f]rom an order granting or denying a 

special motion to strike under section 425.16”]; Varian Medical Systems, Inc. v. Defino

(2005) 35 Cal.4th 180, 192; Old Republic Construction Program Group v. The Boccardo 

Law Firm, Inc. (2014) 230 Cal.App.4th 859, 866, fn. 4.) Plaintiff, however, did not 

appeal from the trial court’s order within the time period provided for such an appeal. 

That order therefore became final and binding upon him and us. (In re Marriage of 

Weiss (1996) 42 Cal.App.4th 106, 119 [“Because [petitioner] did not appeal from the 

immediately appealable . . . attorney fees orders . . . , those orders became final and 

binding on him”]; Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465 

[“since appellant . . . did not appeal from the [directly appealable order denying class 

certification] that order is now final and binding upon appellant . . . and upon this court]; 

Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 908 [“that 

[directly appealable] order [denying class certification], unappealed, is now final and 

binding upon plaintiff . . . , and upon us].)

Two years after the trial court granted the Department’s anti-SLAPP motion and 

struck the FEHA retaliation claim, and well after the time to appeal from that ruling had 

lapsed, plaintiff moved a different trial judge for leave to amend his operative pleading to 

state a new claim for retaliation under FEHA. According to plaintiff, newly discovered 

facts, that had occurred after the filing of the complaint, justified the requested 

amendment. The Department opposed the motion, arguing, inter alia, that once an antiSLAPP motion has been granted, a plaintiff cannot amend his or her pleading in an 

attempt to circumvent the ruling on the anti-SLAPP motion. (Simmons, supra, 92 

Cal.App.4th at p. 1073.) Notwithstanding that plaintiff and the trial court were bound by 
15

the ruling striking the FEHA retaliation claim and the holding in Simmons, the trial court 

granted plaintiff leave to file an amendment to his complaint to, in effect, revive the 

stricken FEHA retaliation claim by allowing him to include in his newly pled FEHA 

claim four of the five adverse employment actions that formed the basis of the stricken

claim.

Based on the authorities establishing that plaintiff was bound by the final order 

striking his FEHA retaliation claim and the holding in Simmons, supra, 92 Cal.App.4th 

1068, the trial court erred by allowing plaintiff to revive his stricken FEHA retaliation 

claim. By doing so, the trial court impermissibly reversed a final, binding order issued by 

another trial court and failed to follow the binding precedent in Simmons, supra, 92 

Cal.App.4th 1068.

In People v. Grace (1926) 77 Cal.App. 752, 760, the court explained that there is 

only one superior court and that an order issued by one department of that court is 

binding on other departments of that court. In Ford v. Superior Court (1986) 188 

Cal.App.3d 737, 742, the court further explained that “[o]ne department of the superior 

court cannot enjoin, restrain, or otherwise interfere with the judicial act of another 

department of the superior court. Even between superior courts of different counties, 

having coequal jurisdiction over a matter, the first court of equal dignity to assume and 

exercise jurisdiction over a matter acquires exclusive jurisdiction. [Citations.] [¶] A 

judgment rendered in one department of the superior court is binding on that matter upon 

all other departments until such time as the judgment is overturned. [Citation.]” 

Judge Palmer issued an order striking the FEHA retaliation claim and that order 

thereafter became final and binding on plaintiff. Two years later, Judge Meiers purported 

to revive the FEHA retaliation claim based on both new allegations and most of the 

original adverse employment actions pled in support of that claim. Under Ford v. 

Superior Court, supra, 188 Cal.App.3d 737, Judge Meiers had no authority to reverse 

Judge Palmer’s ruling, particularly after that order became final and binding on plaintiff.

Moreover, under Simmons, supra, 92 Cal.App.4th 1068, the requested amendment 

to circumvent Judge Palmer’s ruling was also unauthorized because it would defeat the 
16

purposes underlying the anti-SLAPP statute. As the court in Simmons explained, “[T]he 

anti-SLAPP statute makes no provision for amending the complaint once the court finds 

the requisite connection to First Amendment speech. And, for the following reasons, we 

reject the notion that such a right should be implied. [¶] In enacting the anti-SLAPP 

statute, the Legislature set up a mechanism through which complaints that arise from the 

exercise of free speech rights ‘can be evaluated at an early stage of the litigation process’

and resolved expeditiously. (Lafayette Morehouse, [Inc. v. Chronicle Publishing Co. 

(1995)] 37 Cal.App.4th [855,] 865). Section 425.16 is just one of several California 

statutes that provide ‘a procedure for exposing and dismissing certain causes of action 

lacking merit.’ (Lafayette Morehouse, supra, at p. 866.) [¶] Allowing a SLAPP plaintiff 

leave to amend the complaint once the court finds the prima facie showing has been met 

would completely undermine the statute by providing the pleader a ready escape from 

section 425.16’s quick dismissal remedy. Instead of having to show a probability of 

success on the merits, the SLAPP plaintiff would be able to go back to the drawing board 

with a second opportunity to disguise the vexatious nature of the suit through more artful 

pleading. This would trigger a second round of pleadings, a fresh motion to strike, and 

inevitably another request for leave to amend. [¶] By the time the moving party would 

be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded 

in his goal of delay and distraction and running up the costs of his opponent. (See Dixon 

v. Superior Court (1994) 30 Cal.App.4th 733, 741 [36 Cal.Rptr.2d 687].) Such a plaintiff 

would accomplish indirectly what could not be accomplished directly, i.e., depleting the 

defendant’s energy and draining his or her resources. ([Church of] Scientology [v. 

Wollersheim (1996)] 42 Cal.App.4th [628,] 645.) This would totally frustrate the 

Legislature’s objective of providing a quick and inexpensive method of unmasking and 

dismissing such suits. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [33 

Cal.Rptr.2d 446].)” (Simmons, supra, 92 Cal.App.4th at pp. 1073-1074.)

In this case, as the defendant did in Simmons, supra, 92 Cal.App.4th 1068, the 

Department availed itself of the protections of the anti-SLAPP statute and obtained an 

expeditious determination that plaintiff’s FEHA retaliation claim was based on protected 
17

activity and that plaintiff did not have a probability of prevailing on the merits of that 

claim. Plaintiff did not attempt to amend that claim following the ruling striking it, and 

although that ruling was directly appealable, plaintiff chose not to appeal from it. 

Instead, two years later, plaintiff sought to revive the FEHA retaliation claim based on 

new allegations of adverse employment actions taken against him after the filing of the 

complaint, as well as most of the original alleged adverse actions. By allowing plaintiff 

to amend his complaint as requested, the trial court denied the Department the benefit of 

the anti-SLAPP statute, i.e., a “quick dismissal remedy.” Because the order allowing the 

amendment was contrary to the policies underlying the anti-SLAPP statute, it was 

unauthorized and must be reversed. Because the order denying the second anti-SLAPP 

motion was based on the unauthorized order granting leave to amend, the order on the 

second anti-SLAPP motion must also be reversed.

In his letter brief, plaintiff contends that the Department waived any argument that 

the trial court erred in granting leave to amend because the opening and reply briefs do 

not contain any such argument. A fair reading of the opening brief, however, 

demonstrates that the Department adequately raised the issue. In the opening brief, the 

Department argued that “[t]he first judge assigned to this case [Judge Palmer] recognized 

the dangers of allowing this case to go forward. The second judge [Judge Meiers] 

defeated the purpose of the anti-SLAPP law by allowing the stricken claims of retaliation 

to be revived based on vociferous but bombastic allegations. [The Department] relies on 

this Court to correct a ruling that ‘totally frustrate[s] the Legislature’s objective of 

providing a quick and inexpensive method of unmasking and dismissing’ unmeritorious 

lawsuits. (See Simmons[, supra,] 92 Cal.App.4th [at p.] 1074 [observing that allowing an 

amendment after the granting of an anti-SLAPP motion would “‘completely undermine 

the statute’ and concluding that the statute’s omission of any provision for leave to amend 

was not the product of inadvertence or oversight”].) Thus, contrary to plaintiff’s 

assertion, not only did the Department explicitly challenge the correctness of the order 

granting leave to amend, it supported that challenge with a citation to and a quotation 

from Simmons, supra, 92 Cal.App.4th 1068. Although plaintiff chose not to address the 
18

issue in his respondent’s brief, he was on notice that the Department took issue with the 

propriety of the trial court’s order granting leave to amend in light of the holding in 

Simmons. Moreover, the Department relied on Simmons in opposing the motion for leave 

to amend and in making its anti-SLAPP motion in the trial court. We therefore conclude 

that there has not been a waiver of the issue on appeal.

In its letter brief, the Department expands upon its challenge to the order granting 

leave to amend, again relying on Simmons, supra, 92 Cal.App.4th 1068. In doing so, the

Department notes that the order, when entered, was not an appealable order. But that 

order subsequently became appealable under section 90611—as an interim order that

affects a final, directly appealable order—when the Department appealed from the

subsequent order denying the second anti-SLAPP motion, which subsequent order was 

directly appealable under section 425.16, subdivision (i). (See Sweeting v. Murat (2013) 

221 Cal.App.4th 507, 511, fn. 6.) We therefore have jurisdiction under section 906 to 

review the propriety of the trial court’s order granting leave to amend.

In his motion for leave to amend in the trial court, plaintiff attempted to 

distinguish and limit the holding in Simmons, supra, 92 Cal.App.4th 1068, relying, inter 

alia, on the subsequent decision in Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-

871 (Nguyen-Lam). According to plaintiff, that case authorizes an amendment to a claim 

after the granting of an anti-SLAPP motion based on “newly-discovered, newlyoccurring” evidence, if that evidence would assist a plaintiff in meeting his or her burden 

under the second prong of the anti-SLAPP statute. Although the trial court apparently 

accepted this characterization of the holding in Nguyen-Lam, we do not read that decision 

as authorizing the proposed amendment. 

As the court in Hecimovich v. Encinal School Parent Teacher Organization (2012) 

203 Cal.App.4th 450 explained, the holding in Nguyen-Lam, supra, 171 Cal.App.4th 858 

 

11 Section 906 provides, in pertinent part: “Upon an appeal pursuant to Section 

904.1 or 904.2, the reviewing court may review the verdict or decision and any 

intermediate ruling, proceeding, order or decision which involves the merits or 

necessarily affects the judgment or order appealed from or which substantially affects the 

rights of a party . . . .” (Italics added.)
19

was based upon a unique procedural posture which limits its application to cases with 

similar facts. “[In Nguyen-Lam], the trial court had entered an unusual order, described 

by the Court of Appeal as follows: ‘The trial court couched its ruling as an order 

granting defendant’s motion to strike, but with leave for plaintiff to amend her complaint 

to cure any deficiency concerning actual malice. . . . But authorizing an amendment 

under these circumstances is tantamount to denying the strike motion, and we therefore 

reach the propriety of the ruling based on defendant’s challenge.’ (Nguyen-Lam v. Cao, 

supra, 171 Cal.App.4th at pp. 869-870.) The court went on to affirm the denial of the 

SLAPP motion, pointedly noting that it did so because the evidence showing that plaintiff 

could prevail on the merits was before the trial court at the time of the motion: ‘True, a 

plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an 

amended complaint (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 

122 Cal.App.4th 1049 [18 Cal.Rptr.3d 882]) but where, as here, the evidence prompting 

amendment is found in the declarations already submitted for the hearing, there is no risk 

the purpose of the strike procedure will be thwarted with delay, distraction, or increased 

costs. (Cf. ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 138 

Cal.App.4th 1307, 1323 [42 Cal.Rptr.3d 256] [plaintiff cannot amend pleading to avoid 

pending anti-SLAPP motion]; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 [131 

Cal.Rptr.2d 201] [plaintiff cannot use “eleventh-hour amendment” to plead around antiSLAPP motion].)’ (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 871-872.) In 

short, the court concluded, ‘the trial court did not err in permitting plaintiff to amend her 

complaint to plead actual malice in conformity with the proof presented at the hearing on 

the strike motion.’ (Id. at p. 873.)” (Id. at pp. 461-462.)

Here, plaintiff did not attempt immediately to amend his pleading to include facts 

that conformed to the proof that was already before the trial court on the first anti-SLAPP 

motion, as was the case in Nguyen-Lam, supra, 171 Cal.App.4th 858. Instead, two years 

after the final, binding order striking his FEHA retaliation claim, he attempted to revive 

his original FEHA retaliation claim by combining allegations based on facts that occurred 

after the filing of the original complaint with allegations from the original complaint. In 
20

doing so, he was circumventing the order striking his FEHA retaliation claim by an 

unauthorized amendment. Therefore, the holding in Nguyen-Lam had no application to 

his motion to amend. Rather, as explained, the holding in Simmons, supra, 92 

Cal.App.4th 1068 controlled the analysis of his motion for leave to amend and was 

dispositive of it.

Under Simmons, supra, 92 Cal.App.4th 1068, plaintiff could not have amended his 

complaint by omitting the two adverse employment actions that Judge Palmer found 

arose from protected activity. Nor could plaintiff have attempted to add new allegations 

of facts that predated the filing of the original complaint. But, had plaintiff limited his 

amendment to the newly discovered, after-occurring evidence, as we discuss, the trial 

court arguably may have had discretionary authority to allow such an amendment. 

Because the trial court made no such limitation, and instead allowed plaintiff to include 

four of the five adverse employment actions that had supported the stricken FEHA 

retaliation claim, the order granting leave to file the amendment contravened the policies 

underlying the anti-SLAPP statute.

B. Amendment Based Solely on Newly Discovered Evidence

Although the court in Simmons, supra, 92 Cal.App.4th 1068 held that a plaintiff 

cannot amend a claim—by deleting or adding allegations to circumvent the anti-SLAPP 

statute—once a special motion to strike has been granted, the Simmons court did not 

directly deal with the issue of whether a complaint can be amended to state a different 

claim, under a similar legal theory, based solely on newly discovered, after-occurring

evidence. Based on the foregoing analysis of the holding in Simmons and the facts of this 

case, however, we do not need to determine whether allowing such an amendment two 

years after the original ruling on the anti-SLAPP motion would be contrary to the policies 

underlying the anti-SLAPP statute and therefore unauthorized. 

Moreover, even assuming that the trial court had allowed plaintiff to file an 

amendment asserting a FEHA retaliation claim limited to the three newly discovered 

alleged adverse employment actions, the trial court’s subsequent order denying the anti-
21

SLAPP motion to that claim would have been erroneous because, as we discuss, any such 

claim would have been subject to the Department’s second special motion to strike the 

FEHA retaliation claim in the amended pleading. 

1. Legal Principles and Standard of Review

a. Anti-SLAPP Statute and Standard of Review

We recently summarized the legal principles and standard of review that govern 

our analysis of a trial court’s order ruling on an anti-SLAPP motion. “Section 425.16 

provides that a cause of action arising from a defendant’s conduct in furtherance of 

constitutionally protected rights of free speech or petitioning may be stricken unless the 

plaintiff has a probability of prevailing on the merits. (§ 425.16, subd. (b)(1).) In ruling 

on a special motion to strike under section 425.16, the trial court employs a two-prong 

analysis. Initially, the trial court determines ‘“whether the defendant has made a 

threshold showing that the challenged cause of action is one arising from protected 

activity. . . . If the court finds such a showing has been made, it then determines whether 

the plaintiff has demonstrated a probability of prevailing on the claim.” [Citation.]’ 

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)” (Kenne v. Stennis 

(2014) 230 Cal.App.4th 953, 962 (Stennis).) 

“To satisfy the second prong—the probability of prevailing—the plaintiff must 

demonstrate that the complaint is legally sufficient and supported by a prima facie 

showing of facts to support a favorable judgment if the evidence submitted by the 

plaintiff is accepted. The trial court considers the pleadings and evidentiary submissions 

of both the plaintiff and the defendant. Although ‘“the court does not weigh the 

credibility or comparative probative strength of competing evidence, it should grant the 

motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the 

plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]” (Wilson v. 

Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 

733], superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150 
22

Cal.App.4th 527, 547 [59 Cal.Rptr.3d 109].)’ (Cole v. Patricia A. Meyer & Associates, 

APC (2012) 206 Cal.App.4th 1095, 1104-1105 (Cole).) The standard for determining the 

merits of a defendant’s special motion to strike a complaint is similar to that for

determining the merits of a defendant’s motion for summary judgment. ‘Both seek to 

determine whether a prima facie case has been presented by [the] plaintiff in opposing the 

motions.’ (Bergman v. Drum (2005) 129 Cal.App.4th 11, 18; see Weil & Brown, Cal. 

Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 7:1008, p. 7(II)-

57 [‘The “probability of prevailing” is tested by the same standard governing a motion 

for summary judgment, nonsuit, or directed verdict’].) If a plaintiff sets forth a prima 

facie case in opposition to such motions, the motions must be denied.” (Stennis, supra, 

230 Cal.App.4th at pp. 962-963.)

“‘We review an order granting an anti-SLAPP motion de novo, applying the same 

two-step procedure as the trial court. (Alpha & Omega Development, LP v. Whillock 

Contracting, Inc. (2011) 200 Cal.App.4th 656, 663 [132 Cal.Rptr.3d 781].) We look at 

the pleadings and declarations, accepting as true the evidence that favors the plaintiff and 

evaluating the defendant’s evidence ‘“only to determine if it has defeated that submitted 

by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup).) The 

plaintiff’s cause of action needs to have only “‘minimal merit’ [citation]” to survive an 

anti-SLAPP motion. (Id. at p. 291.)’ (Cole, supra, 206 Cal.App.4th at p. 1105.)” 

(Stennis, supra, 230 Cal.App.4th at pp. 962-963.)

b. Civil Code Section 47, Subdivision (b)—Litigation Privilege

Because, under the second prong of the anti-SLAPP analysis, we are required to 

determine the legal sufficiency of plaintiff’s FEHA retaliation claim based on newly 

discovered evidence, the appeal raises the issue of whether that claim is barred on the 

merits as a matter of law under the litigation privilege set forth in Civil Code section 47, 

subdivision (b). As we explained in Stennis, supra, 230 Cal.App.4th 953, that “section 

provides, in pertinent part: ‘A privileged publication or broadcast is one made: [¶] . . . 
23

[¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official 

proceeding authorized by law, or (4) in the initiation or course of any other proceeding 

authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) 

of Title 1 of Part 3 of the Code of Civil Procedure . . . .’ ‘The privilege in [Civil Code] 

section 47[, subdivision (b)] is “relevant to the second step in the anti-SLAPP analysis[12]

in that it may present a substantive defense plaintiff must overcome to demonstrate a 

probability of prevailing. (See, e.g., Kashian v. Harriman (2002) 98 Cal.App.4th 892, 

926-927 [120 Cal.Rptr.2d 576] [where the plaintiff’s defamation action was barred by 

Civil Code section 47, subdivision (b), the plaintiff cannot demonstrate a probability of 

prevailing under the anti-SLAPP statute]; Dove Audio, Inc. v. Rosenfeld, Meyer & 

Susman (1996) 47 Cal.App.4th 777, 783-785 [54 Cal.Rptr.2d 830] [the defendant’s 

prelitigation communication privileged and trial court therefore did not err in granting 

motion to strike under the anti-SLAPP statute].)” (Flatley [v. Mauro], supra, 39 Cal.4th 

at p. 323.)’ (Rohde v. Wolf, supra, 154 Cal.App.4th at p. 38.)” (Stennis, supra, 230 

Cal.App.4th at p. 964.) 

“The Supreme Court has stated, ‘The litigation privilege, codified at Civil Code 

section 47, subdivision (b), provides that a “publication or broadcast” made as part of a 

“judicial proceeding” is privileged. This privilege is absolute in nature, applying “to all

publications, irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d 

205, 216 [266 Cal.Rptr. 638, 786 P.2d 365] (Silberg).) “The usual formulation is that the 

privilege applies to any communication (1) made in judicial or quasi-judicial 

proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the 

objects of the litigation; and (4) that [has] some connection or logical relation to the 

action.” (Id. at p. 212.) The privilege “is not limited to statements made during a trial or 

other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen 

 

12 “‘Notwithstanding [the] relationship between the litigation privilege and the antiSLAPP statute . . . the two statutes are not substantively the same.’” (Rohde v. Wolf

(2007) 154 Cal.App.4th 28, 38, fn. 2, quoting Flatley v. Mauro (2006) 39 Cal.4th 299, 

323; see Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263.)
24

v. Cohen (2006) 37 Cal.4th 1048, 1057 [39 Cal.Rptr.3d 516, 128 P.3d 713] (Rusheen).)’ 

(Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 

1241.)” (Stennis, supra, 230 Cal.App.4th at p. 964.) 

“The Supreme Court has also observed that ‘“[t]he principal purpose of [Civil 

Code] section [ 47, subdivision (b)] is to afford litigants and witnesses [citation] the 

utmost freedom of access to the courts without fear of being harassed subsequently by 

derivative tort actions.” (Silberg[, supra,] 50 Cal.3d [at p.] 213.) Additionally, the 

privilege promotes effective judicial proceedings by encouraging “‘open channels of 

communication and the presentation of evidence’” without the external threat of liability 

(ibid.), and “by encouraging attorneys to zealously protect their clients’ interests.” (Id. at 

p. 214.) “Finally, in immunizing participants from liability for torts arising from 

communications made during judicial proceedings, the law places upon litigants the 

burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby 

enhancing the finality of judgments and avoiding an unending roundelay of litigation, an 

evil far worse than an occasional unfair result.” (Ibid.)’ (Flatley v. Mauro, supra, 39 

Cal.4th at pp. 321-322.)” (Stennis, supra, 230 Cal.App.4th at pp. 964-965.)

“‘[T]he privilege is “an ‘absolute’ privilege, and it bars all tort causes of action 

except a claim of malicious prosecution.” (Hagberg v. California Federal Bank (2004) 

32 Cal.4th 350, 360 [7 Cal.Rptr.3d 803, 81 P.3d 244], italics added.) The litigation 

privilege has been applied in “numerous” cases involving “fraudulent communications or 

perjured testimony.” [Citations.]’ (Flatley v. Mauro, supra, 39 Cal.4th at p. 322, italics 

added.) Because Civil Code section 47, subdivision (b) protects any statements or 

writings that have ‘“some relation”’ to a lawsuit, communications made both during and 

in anticipation of litigation are covered by the statute. (Rubin v. Green (1993) 4 Cal.4th 

1187, 1193-1194; see Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1268.)” 

(Stennis, supra, 230 Cal.App.4th at p. 965.)
25

2. Analysis

a. Protected Activity13

(i) Dissemination of confidential personnel records

As set forth in detail above, plaintiff alleged in the amendment that the 

Department sent copies of the closure letter, which included the sustained finding that he 

had filed a false claim, and the investigation file detailing multiple allegations of 

plaintiff’s additional misconduct, to several management level Department employees. 

Plaintiff based that allegation on the deposition testimony of Associate Warden Tom 

Arlitz who testified that he received a large packet of documents from the Department 

that included information about the sustained finding that plaintiff had filed a false claim 

and other allegations of misconduct by plaintiff during the period plaintiff was separated 

from state service. 

In support of its second anti-SLAPP motion, the Department submitted declaration 

testimony establishing that after the complaint in this action was filed, staff counsel for 

the Department forwarded the complaint and related documents to “various [Department] 

officials,” including Associate Warden Arlitz. According to that testimony, the 

Department managers involved in reviewing the investigation report and issuing the 

closure letter to plaintiff did not distribute or direct any other Department employee to 

distribute the closure letter or report to any other person. Plaintiff did not submit any 

evidence that contradicts the Department’s evidence on this issue. The deposition 

testimony of Associate Warden Arlitz was ambiguous, at best, and when read in light of 

the Department’s declaration testimony, it supported a reasonable inference that the 

 

13 Although the amendment asserted three new alleged adverse employment actions 

that the Department contends arose from protected activity, plaintiff did not address the 

third such action—solicitation of adverse information for use in further retaliation—in 

the argument section of his opening brief. Plaintiff presumably concedes that this 

allegation arose from protected activity or is otherwise not actionable under FEHA. 
26

package of documents to which Associate Warden Arlitz referred in his deposition was

plaintiff’s complaint and related documents not the investigative report and closure letter. 

Based on the evidence in the record—including the declarations of various 

Department employees that demonstrated that Associate Warden Arlitz and others in 

management were sent copies of plaintiff’s complaint by staff counsel and that his 

investigation file and closure letter were not disseminated—the disclosure of information 

about which plaintiff complains was in response to the filing of the complaint in this 

action. As such, that disclosure was privileged under Civil Code section 47 as 

communications made in connection with a pending litigation. That disclosure therefore 

arose from protected activity, i.e., the Department’s right to petition. As a result, the 

Department met its burden under the first prong of the anti-SLAPP statute of showing 

that the alleged dissemination of confidential personnel records fell under the protection 

of that statute.

(ii) Refusal to pay interest on back pay

Plaintiff alleged in the amendment that the Department, after the filing of the 

complaint, continued to refuse to pay interest on back pay from December 2005 through 

June 2006. According to plaintiff, the interest was due pursuant to the Board’s 

reinstatement order. Plaintiff further alleged that the Department’s refusal to pay the 

claimed interest was based on the advice of counsel “to suspend payment of interest 

pending the outcome of a motion . . . in a pending case. . . .” 

The evidence on this issue showed that when plaintiff complained about the 

nonpayment of interest, he was advised by the Department in August 2012 that the 

interest was not being paid because there was a pending motion on the interest dispute 

before the trial court in the first action. The conduct complained of was therefore an 

issue under consideration by a judicial body. Accordingly, the Department satisfied its 

burden under the first prong of the anti-SLAPP statute of showing that the failure to pay 

interest arose from protected activity.
27

b. Probability of Prevailing

Based on the foregoing analysis, it is clear that plaintiff could not show that there 

was probability of prevailing on the merits of either the dissemination of confidential 

information claim or the refusal to pay interest claim. As discussed, the Department’s 

evidence in support of its anti-SLAPP motion demonstrated that the conduct complained 

of as to both claims involved communications in response to or during a pending 

litigation and was therefore absolutely privileged under Civil Code section 47.

In Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, the court explained the 

type of conduct to which the Civil Code section 47 privilege applies. “The litigation 

privilege protects only publications and communications; it does not protect 

noncommunicative conduct. The threshold issue in determining the applicability of the 

privilege ‘is whether the defendant’s conduct was communicative or noncommunicative.’ 

(Rusheen [v. Cohen], supra, 37 Cal.4th at p. 1058.) [¶] The distinction between 

communicative and noncommunicative conduct ‘hinges on the gravamen of the action.’ 

(Rusheen [v. Cohen], supra, 37 Cal.4th at p. 1058.) ‘[T]he key in determining whether 

the privilege applies is whether the injury allegedly resulted from an act that was 

communicative in its essential nature.’ (Fn. omitted.) (Ibid.) The privilege ‘extends to 

noncommunicative acts that are necessarily related to the communicative conduct.’ (Id.

at p. 1065.) In short, ‘unless it is demonstrated that an independent, noncommunicative, 

wrongful act was the gravamen of the action, the litigation privilege applies.’ (Ibid.)” 

(Id. at p. 616.)

Here, both of the newly alleged adverse actions were based on acts necessarily 

related to communicative conduct—i.e., sending plaintiff’s complaint to certain 

management personnel to advise them of the pendency of the action and following the 

advice of the Attorney General not to pay disputed interest pending the outcome of a 

motion in a related action. Those communications and related acts were therefore 

absolutely privileged. Accordingly, even assuming that the trial court’s order granting 

leave to amend had been limited to the two new alleged adverse actions, plaintiff would 

have nevertheless failed to satisfy his burden under the second prong of the anti-SLAPP
28

as to those newly alleged adverse employment actions because the Department’s 

evidence constituted a prima facie showing that the conduct complained of was 

privileged and plaintiff’s evidence was insufficient to overcome that showing.

In his supplemental letter brief, plaintiff contends that the two alleged adverse 

actions were noncommunicative. According to plaintiff, the gravamen of his newly 

alleged retaliation claim was based on “the denial of [plaintiff’s] POBRA rights to 

challenge the finding of dishonesty and the subsequent widespread dissemination of that 

finding based on the denial of [plaintiff’s] POBRA rights, and the denial of interest on 

backpay to which [plaintiff] had a statutory right.” 

In his letter brief, plaintiff attempts to merge his prior allegations concerning the 

violation of his POBRA rights14 with the two new adverse employment actions that 

occurred after the granting of the Department’s first anti-SLAPP motion. The POBRA 

allegations, however, were not based on new facts, but rather were a repetition of 

allegations from plaintiff’s original and prior amended pleadings. Moreover, in ruling on 

the first anti-SLAPP motion, Judge Palmer expressly stated that the Department’s alleged 

actions of “‘instituting a new and frivolous misconduct investigation including subjecting 

plaintiff to an eight-hour administrative interrogation’ and ‘unlawfully and maliciously 

notifying plaintiff that the misconduct investigation resulted in a sustained finding of 

dishonesty against him without any “Skelly” [i.e., POBRA] rights’ . . . describe[d] 

protected activity of the defendants. The investigation of misconduct by [the 

Department’s] employees and communicating the findings of that investigation are free 

speech rights of the [Department] and involve public issues.” Therefore, because the 

allegations concerning the violations of plaintiff’s POBRA rights were not based on new 

 

14 In a footnote in his letter brief, plaintiff notes that our letter requesting briefing on 

the Civil Code section 47 issue omitted any reference to the allegations in the amendment 

to the third amended complaint concerning the violation of his POBRA rights. As 

explained above, the omission was purposeful because those allegations were not based 

on new facts that occurred after the filing of the original pleading. Thus, those prior 

allegations could not be asserted as a basis for a renewed retaliation claim that had 

previously been stricken by Judge Palmer. (See Simmons, supra, 92 Cal.App.4th 1068.)
29

facts and were necessarily related to plaintiff’s prior allegations concerning the 

misconduct investigation and the issuance of the closure letter, they could not be 

reasserted in the newly alleged retaliation claim based on the reasons and authorities 

discussed above, including the holding in Simmons, supra, 92 Cal.App.4th 1068.

As to the two newly alleged adverse employment actions, we reject plaintiff’s 

assertions that they were based solely on noncommunicative conduct. As noted, the 

gravamen of those alleged adverse actions was based on the sending of plaintiff’s 

complaint to certain management personnel to advise them of the pendency of the action 

and the following of the advice of counsel by refusing to pay the disputed interest on 

back pay. Each of those actions was communicative and directly related to pending 

litigation. As a result, the alleged conduct relating to those actions was privileged. (See 

Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065; Gallanis-Politis v. Medina, supra, 152 

Cal.App.4th at p. 616.)
30

DISPOSITION

The orders granting leave to file an amendment to the third amended complaint 

and denying the second anti-SLAPP motion are reversed. The Department is awarded 

costs on appeal. On remand, the trial court shall determine the Department’s entitlement 

to attorney fees under section 425.16, subdivision (c)(1).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

BAKER, J.