Filed 12/12/14 Lawrence v. County of San Bernadino CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JEFFREY ROBERT LAWRENCE,

Plaintiff and Respondent,

v.

COUNTY OF SAN BERNARDINO,

Defendant and Appellant.

 D066204

 (Super. Ct. No. CIVDS1113974)

APPEAL from an order of the Superior Court of San Bernardino County, 

Donna G. Garza, Judge. Reversed.

Gutierrez, Preciado & House, Calvin House and Clifton A. Baker for Defendant 

and Appellant.

Sofonio & Associates and Rex P. Sofonio for Plaintiff and Respondent.

INTRODUCTION

Jeffrey Robert Lawrence alleges he was subjected to an internal investigation and 

dismissed from his position as a deputy public defender for the County of San Bernardino 
2

(the County) in retaliation for reporting his superiors for alleged violations of conflict of 

interest laws and rules. The County appeals an order denying its special motion to strike 

under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. 

Proc., § 425.16.)1 The County contends the trial court erroneously concluded the 

gravamen of these claims do not arise from protected activity and are not subject to the 

anti-SLAPP statute. We agree with the County and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

We state the facts in the light most favorable to plaintiff, the party opposing the 

anti-SLAPP motion. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 

269, fn. 3 (Soukup).)

A

Lawrence was employed by the County as a deputy public defender from 

September 1998 until he was discharged in October 2010. He received work 

performance evaluations stating he consistently exceeded the expectations of his job 

requirements throughout his 12 years of service.

Public Defender, Doreen Boxer, set out to change the culture of the office after she 

was hired in 2006. Lawrence alleges Boxer and the Supervising Deputy Public Defender, 

Lauri Ferguson, targeted highly paid deputy public defenders who were close to 

retirement for termination and instructed management to harass and intimidate tenured 

 

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

indicated.
3

employees until they quit. Boxer and Ferguson, along with Chief of the Bureau of 

Investigations, Martin Dante, constructed an interrogation room to interrogate and 

intimidate employees. Lawrence alleges employees were "unexpectedly thrust from 

perceived comfortable job positions and put back on the front lines as fulltime trial 

attorneys," "rotated to significantly farther jurisdictions, which doubled or tripled their 

commute times, for no apparent reason" or "were singled out by management and nitpicked to death for nominal things like being a few minutes late or too much internet use"

and were "subjected to harsh interrogations about alleged minor violations." He also 

contends newer competent attorneys "were strung along on probation for over two years"

and then fired before they acquired any civil service rights.

Lawrence challenged a proposal in 2007 by Boxer and Ferguson to implement a 

mandatory tape recording policy for all interviews conducted by the public defender 

investigators. He alleges his opposition, joined by others, stopped implementation of the 

plan, but led to personal contempt toward him culminating years later in the investigation 

and termination that is the subject of this action.

Lawrence interviewed for a supervisor position in 2007, but was "belittled" in the 

interrogation room "to teach him a lesson not to speak out against [Boxer and Ferguson]

or to think that he was any better of an attorney than anyone else, despite having the 

excellent record he had." According to Lawrence, a less qualified applicant was awarded 

the position.

In 2008, Lawrence applied for and was assigned to an elite unit called the "Central 

Homicide Panel," which exclusively handled non-capital murder cases. He was told he 
4

and the other members of the unit would receive a pay increase and a promotion to a 

deputy public defender V position as a result of the difficult assignment. However, 

Boxer gave the promotion to others she favored over him, saying there were insufficient 

funds to give the promotion to all unit members. 

In June 2009 Lawrence again interviewed for a supervisor position. When 

Ferguson asked what he thought about her management style, Lawrence told her the 

administration's tactics of harassing and mistreating employees and abusing disciplinary 

proceedings created an environment of fear, which was not good for the office. Instead 

of hiring Lawrence, they hired Geoffrey Canty and made him Lawrence's supervisor.

Lawrence alleges he did not know Canty's allegiance was to Boxer and Ferguson. 

Lawrence shared with Canty media reports of a sexual affair between Boxer and District 

Attorney Michael Ramos and privately told Canty he hoped this scandal would lead to

Boxer and Ferguson losing their jobs because Lawrence did not like the hostile work 

environment they had created in the office. Lawrence alleges Canty retaliated against 

him for expressing "concerns that the defendants were violating state statutes, including 

state conflict of interest rule violations directly related to false claims against the 

government."

B

Lawrence started a jury trial in the middle of June 2009 representing one of four 

defendants charged with multiple counts of robbery and carjacking, kidnapping, torture, 

and first degree murder with special circumstances. These charges made his client 
5

eligible to receive a sentence of life without the possibility of parole and was the most 

serious trial Lawrence had ever defended. 

While preparing for trial, Lawrence redacted two sentences from a report prepared 

by investigator Michael Carruth regarding a witness interview. Lawrence electronically 

manipulated the line spacing so it was impossible to tell the document was altered. 

Lawrence then disclosed the altered document to the deputy district attorney as part of 

discovery. Lawrence contends he deleted the sentences based on a stipulation and court 

ruling that statements of one criminal defendant could not be used against another to 

avoid trials by separate juries.

When investigator Carruth was subpoenaed to testify in August 2009, Carruth 

learned Lawrence had redacted his report. Carruth told Lawrence he was concerned he 

could not honestly testify it was his report if he was asked to use the report to refresh his 

recollection. Lawrence tried to convince Carruth to testify the report was his even with 

the omissions. Lawrence made other suggestions to avoid the problem such as bringing 

his original report with him to use on the stand if asked or to memorize the report so he 

would not have to rely on it. Carruth believed these actions would have misled the court 

to believe the report produced to the deputy district attorney was not altered. Carruth 

reported the incident to Dante who reported the incident to Boxer and Ferguson. 

Canty, allegedly at the direction of Boxer and Ferguson, questioned Lawrence 

about the report. Lawrence told Canty the witness did not testify during trial regarding 

areas concerning the redacted information, when she actually had so testified. As a 
6

result, Canty told Ferguson the office did not have a legal or ethical duty to produce the 

unaltered report. 

C

Investigators Dante and Randy Bliss interviewed Lawrence regarding this incident 

on September 9, 2009, and November 12, 2009. During those interviews, Lawrence 

made statements the investigators determined were not true. Lawrence contends the 

motive for this investigation was to retaliate against him for reporting violations of 

various state and federal rules, regulations and laws. He also contends the lengthy 

interviews were conducted in a small interrogation room and he felt he was falsely 

imprisoned. He alleges his first interview upset him to the extent he was required to seek 

medical attention and was placed on short-term disability.

In April 2010 Lawrence was assigned to represent a former member of the County 

Board of Supervisors (the Board), William Postmus, who had been charged with 

corruption. Postmus believed he was prosecuted in retaliation for exposing the alleged 

affair between Boxer and Ramos. Lawrence reported to Canty concerns about conflicts 

of interest related to Postmus's representation. Lawrence believes he unknowingly 

"caught these defendants in a lie" regarding the reason stated on the declaration of 

conflict filed with the court. The conflict statement indicated the public defender's office 

represented a witness who testified adversely to Postmus whereas Lawrence alleges the 

public defender's office should never have represented the adverse witness due to a 

separate conflict of interest.
7

Shortly thereafter, on May 27, 2010, Lawrence alleges he was placed on 

administrative leave and told to clean out his office while others watched. As he left, he 

was handed two binders containing 800 pages of discovery including a 119-page internal 

investigation report and a 32-page notice of dismissal signed by Boxer. Lawrence alleges 

the " 'Notice of Proposed Dismissal' included several extreme and outrageous charges of 

dishonesty by [Lawrence] that shock one's conscience." 

Boxer served as the hearing officer at his "Skelly hearing" in July 2010.2 

Lawrence alleges he "stood up" to Boxer during the Skelly hearing and told her the 

language used in the notice met the legal definition for extortion because it threatened 

criminal action if he did not resign. Based on written and oral statements made during 

the Skelly process, the County concluded Lawrence had threatened to report Boxer and 

Canty to the State Bar in reaction to the proposed dismissal and threatened to file a grand 

jury complaint.

Lawrence alleges he was confined to his home for the several months he was on 

administrative leave. He was required to call in each day and could not leave during 

working hours without permission. He alleges this exacerbated his health problems.

 

2 In Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly), the Supreme 

Court held due process of law affords a permanent public employee certain procedural 

rights before the effective date of his or her discipline or dismissal. Although a full 

evidentiary hearing is not required, "[a]s a minimum, these preremoval safeguards must 

include notice of the proposed action, the reasons therefor, a copy of the charges and 

materials upon which the action is based, and the right to respond, either orally or in 

writing, to the authority initially imposing discipline." (Id., at p. 215.) A public 

employee is entitled to a full evidentiary hearing within a reasonable time after the 

disciplinary action is imposed. (Ibid.)
8

During this period Lawrence met with a member of the Board. Lawrence reported 

his concerns about Boxer's administration and conflicts of interest.

On October 8, 2010, the County served Lawrence with an order of dismissal. The 

reasons stated for the action included: (1) solicitation of Carruth to give factually 

inaccurate or misleading testimony, (2) dishonesty with his direct supervisor, Canty, 

regarding the testimony elicited from the witness during trial, (3) making 

misrepresentations and being dishonest during the administrative interviews, (4) 

threatening to present State Bar charges against County employees and (5) threatening to 

file a complaint with the County's grand jury in reaction to being served with the notice 

of proposed dismissal. 

An order of dismissal is the document from which an employee may appeal his 

dismissal to the County Civil Service Commission (Commission). Lawrence alleges the 

order of dismissal contained outrageous claims. Lawrence appealed his termination to 

the Commission. 

Boxer and Ferguson left office in December 2010, after either resigning or being 

terminated. Thereafter, the interim public defender met with Lawrence informally and 

offered to reinstate him with a promotion to deputy public defender V. Lawrence 

declined, stating he still felt the office was a hostile work environment for him without 

additional changes. 

The County withdrew the order of dismissal and reinstated Lawrence after placing 

a letter of reprimand in his file. Lawrence was told he would receive back pay offset by 
9

any earnings he made during the period he was terminated. Lawrence has not returned to 

work and contends the reinstatement deprives him of a Commission hearing. 

D

After the County denied his claim for damages, Lawrence filed this action. The

second amended complaint set forth causes of action for: (1) retaliation in violation of 

the California False Claims Act (CFCA) (Gov. Code § 12653);3 (2) breach of contract; 

(3) breach of the implied covenant of good faith and fair dealing; (4) intentional 

misrepresentation (fraud); (5) false imprisonment; (6) defamation: libel; (7) defamation: 

slander; and (8) intentional infliction of emotional distress.

In the retaliation cause of action, Lawrence alleges the County retaliated against 

him for his investigation and reporting concerns about Boxer "continually using state 

funds to defend criminal defendants, whom she had no legal right to defend because of 

blatant violations of attorney conflict of interest rules outlined in the Rules of 

Professional Conduct 3-310 for failing to disclose to thousands of her clients the alleged 

personal relationship with [Ramos]." He further alleges he reported Boxer and Ferguson 

for "using their state funded positions to maliciously attack other attorneys of the San 

Bernardino County Public Defender's Office without cause, in violation of their 

 

3 Government Code section 12653, subdivision (a), provides in pertinent part: "Any 

employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if 

that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any 

other manner discriminated against in the terms and conditions of his or her employment 

because of lawful acts done by the employee . . . in furtherance of an action under this 

section or other efforts to stop one or more violations of [the CFCA]." 

Government Code section 12653, subdivision (b), provides for a civil enforcement 

action and enumerates the relief available in such an action.
10

employment contract and in an effort to bankrupt the San Bernardino County Public 

Attorney's Union by exhausting their resources."

The trial court granted the County's anti-SLAPP motion as to the fourth and sixth 

causes of action for misrepresentation/fraud and libel. It denied the anti-SLAPP motion 

as to the only remaining causes of action, first through third, concluding the gravamen of 

these causes of action were not protected speech and not subject to the anti-SLAPP 

statute.4

DISCUSSION

I

Generally Applicable Principles

Section 425.16, subdivision (b)(1) states: "A cause of action against a person 

arising from any act of that person in furtherance of the person's right of petition or free 

speech under the United States Constitution or the California Constitution in connection 

with a public issue shall be subject to a special motion to strike, unless the court 

determines that the plaintiff has established that there is a probability that the plaintiff 

will prevail on the claim." This statute provides " 'a procedure for the early dismissal of 

what are commonly known as SLAPP suits . . . —litigation of a harassing nature, brought 

to challenge the exercise of protected free speech rights.' [Citation.] A SLAPP suit is 

 

4 The trial court sustained the County's demurrer without leave to amend as to the 

fifth and seventh causes of action for false imprisonment and slander. It also sustained 

the County's demurrer with leave to amend as to the eighth cause of action for intentional 

infliction of emotional distress. According to the County, Lawrence did not amend as to 

this cause of action and it is not part of this appeal.
11

generally brought to obtain an economic advantage over the defendant, not to vindicate a 

legally cognizable right of the plaintiff." (Gotterba v. Travolta (2014) 228 Cal.App.4th 

35, 40.) The Legislature has mandated that courts construe this statute "broadly" in favor 

of the moving party. (§ 425.16, subd. (a).)

The analysis of an anti-SLAPP motion involves two steps. " 'First, the court 

decides whether the defendant has made a threshold showing that the challenged cause of 

action is one 'arising from' protected activity. (§ 425.16, subd. (b)(1).) If the court finds 

such a showing has been made, it then must consider whether the plaintiff has 

demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action 

that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected 

speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being 

stricken under the statute.' [Citation.] We review an order granting or denying a motion 

to strike under section 425.16 de novo." (Oasis West Realty, LLC v. Goldman (2011) 51 

Cal.4th 811, 819-820 (Oasis West).) "We consider 'the pleadings, and supporting and 

opposing affidavits . . . upon which the liability or defense is based.' (§ 425.16, 

subd. (b)(2).) However, we neither 'weigh credibility [nor] compare the weight of the 

evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and 

evaluate the defendant's evidence only to determine if it has defeated that submitted by 

the plaintiff as a matter of law.' " (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.)
12

II

The Causes of Action Arise From Protected Activity

For the first step, the anti-SLAPP statute identifies four categories of actions that 

are " 'in furtherance of' " a defendant's free speech or petition rights. (§ 425.16, subd. (e); 

see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The County relies on the 

second category to assert the statute's applicability: "any written or oral statement or 

writing made in connection with an issue under consideration or review by a legislative, 

executive, or judicial body, or any other official proceeding authorized by law." 

(§ 425.16, subd. (e)(2).)

In determining whether a claim arises from the protected activity, a court must 

"disregard the labeling of the claim [citation] and instead 'examine the principal thrust or 

gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute 

applies' and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.] 

We assess the principal thrust by identifying '[t]he allegedly wrongful and injuryproducing conduct . . . that provides the foundation for the claim.' " (Hylton v. Frank E. 

Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272, italics added.) The anti-SLAPP

statute focuses on "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.)

In this case, the causes of action for retaliation in violation of the CFCA, breach of 

contract and breach of the covenant of good faith and fair dealing all arise, at least in part, 
13

from the County's investigation into whether Lawrence engaged in misconduct and its 

decision to terminate his employment.

Internal investigations of misconduct by government employees, and statements or 

reports made during investigations, are protected activity under the anti-SLAPP statute. 

(Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383 [claims based on 

investigation into a public employee's misconduct on the job satisfy the first prong of 

§ 425.16]; Hansen v. Department of Corrections & Rehabilitation (2008) 171 

Cal.App.4th 1537, 1544 [internal investigation of government employee covered by 

statute]; Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1061 [claims 

based on surveillance, investigative reports, an administrative hearing and subsequent 

resolution adopted by city covered by statute.) Personnel actions, such as termination or 

dismissal following such investigations, are also protected by the anti-SLAPP statute. 

(Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1394 [administrator's statements and 

communicative conduct as a hearing officer denying an employee grievance protected 

under § 425.16, subd. (e)(2)].)

In the retaliation cause of action, Lawrence alleges "defendants conspired to

retaliate against plaintiff for his investigation of them for violations of the [CFCA]. 

Defendants violated [the CFCA] through a pattern of harassment designed to intimidate 

plaintiff, that included misrepresentation, libel, false imprisonment, and the intentional 

infliction of emotional distress. This was accomplished through multiple lengthy 

unnecessary interrogations, unreasonable delays in administrative proceedings without 

cause, denial of promotions, wrongful termination without cause, and abuse of civil 
14

service process by forcefully reinstating plaintiff against his will in order to gain a legal 

advantage." Thus, the gravamen of this cause of action, i.e. the allegedly wrongful and 

injury producing conduct, was the investigation, the administrative proceeding, the order 

of dismissal and subsequent withdrawal of the discipline. "Absent the investigation and 

report, nothing of substance exists upon which to base a retaliation claim." (GallanisPolitis v. Medina (2007) 152 Cal.App.4th 600, 611.)

The breach of contract and breach of the implied covenant of good faith and fair 

dealing claims incorporate the allegations regarding the investigation and administrative 

proceedings and allege Lawrence was terminated without good cause based on the 

defendants' "outrageous conduct." Since the investigation and decision to dismiss 

Lawrence are protected by the anti-SLAPP statute, these causes of action, based on the 

same alleged wrongdoing, are also protected.

Lawrence contends the anti-SLAPP statute should not apply because the County's 

actions were "illegal." We are not persuaded. The County has not conceded and 

Lawrence has not met his burden of conclusively proving the County's conduct was 

illegal. (Cross v. Cooper (2011) 197 Cal.App.4th 357, 384-385.) Therefore, the antiSLAPP statute applies.

III

Lawrence Has Not Established A Probability of Prevailing

A

Because we conclude the County met its burden to show the retaliation claims are 

governed by the anti-SLAPP statutes, we proceed to the second step of the analysis. 
15

Although the trial court did not reach this step, we may consider this issue because our 

review is de novo. (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1195.)

In this step, the burden shifts to the plaintiff to show a probability of prevailing on 

its claims. To meet this burden, the plaintiff cannot rely solely on the allegations in the 

complaint and must present evidence that would be admissible at trial. (Stewart v. 

Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679; ComputerXpress, Inc. v. Jackson 

(2001) 93 Cal.App.4th 993, 1010.) 

The plaintiff's burden to show a "probability of prevailing is not high: We do not 

weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as 

true all evidence favorable to the plaintiff and assess the defendant's evidence only to 

determine if it defeats the plaintiff's submission as a matter of law." (Overstock.com, Inc. 

v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.) "If the plaintiff 'can 

show a probability of prevailing on any part of its claim, the cause of action is not 

meritless' and will not be stricken; 'once a plaintiff shows a probability of prevailing on 

any part of its claim, the plaintiff has established that its cause of action has some merit 

and the entire cause of action stands.' " (Oasis West, supra, 51 Cal.4th at p. 820, quoting 

Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106; Burrill v. Nair 

(2013) 217 Cal.App.4th 357, 379-382.)

B

Lawrence has not met his burden of showing a probability of prevailing on his 

claims. To begin, Lawrence has not complied with fundamental rules of appellate 

procedure. The 10 pages of Lawrence's respondent's brief arguing he has established a 
16

"high probability of prevailing" contains no citations to the record on appeal. Instead, 

Lawrence refers to his statement of facts summarizing the allegations in his second 

amended complaint and merely says the facts "are supported by the 139 exhibits," which 

Lawrence attached to his response to the anti-SLAPP motion. The reference to the 

statement of facts does not assist Lawrence. The statement of facts similarly goes on for 

pages without a record citation and, when a citation is provided, the reference may span 

tens or even hundreds of pages. 

This is improper. "Any statement in a brief concerning matters in the appellate 

record—whether factual or procedural and no matter where in the brief the reference to 

the record occurs—must be supported by a citation to the record." (Eisenberg et al., 

Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 9:36, p. 9-12; 

Cal. Rules of Court, rule 8.204(a)(1)(C).) " 'It is neither practical nor appropriate for us 

to comb the record on [the party's] behalf.' " (Schmidlin v. City of Palo Alto (2007) 157 

Cal.App.4th 728, 738.) Given the lack of record citations, we disregard arguments not 

supported by the record or deem the points raised as forfeited. (Dominguez v. Financial 

Indemnity Co. (2010) 183 Cal.App.4th 388, 391, fn. 2 ["because [the respondent's] brief 

fails to provide a citation to the appellate record for these facts, we do not consider 

them"]; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800 [" 'When 

[a] . . . brief makes no reference to the pages of the record where a point can be found, an 

appellate court need not search through the record in an effort to discover the point 
17

purportedly made. [Citations.] We can simply deem the contention to lack foundation 

and, thus, to be forfeited.' "].)5

C

Even if we were to consider Lawrence's arguments, the County has demonstrated 

Lawrence cannot meet his burden of establishing a probability of prevailing. The 

retaliation cause of action is barred since all of the statements made in the investigation, 

notice of proposed dismissal and order of dismissal upon which he bases his claims are 

absolutely privileged under Civil Code section 47.

Civil Code section 47, subdivision (a), provides an absolute privilege for 

communication made "[i]n the proper discharge of an official duty." To the extent the 

retaliation cause of action is based on statements in Boxer's Order of Dismissal, these 

statements are absolutely privileged under this subdivision because they were made in the 

discharge of Boxer's official duty as the public defender and the head of the agency. 

These statements are privileged even if the statements were made in bad faith or with 

malice. (Silberg v. Anderson (1990) 50 Cal.3d 205, 216.)

Civil Code section 47, subdivision (b), provides an absolute privilege for any 

publication or communication made in an "official proceeding authorized by law." The 

"official proceeding" privilege protects " 'communications to or from governmental

 

5 We note this does not appear to be a simple oversight regarding proper preparation 

of an appellate brief. Lawrence's opposition to the anti-SLAPP motion addressing the 

probability of prevailing similarly contained no citations to evidence supporting his 

claims. Instead, Lawrence merely submitted 139 exhibits in opposition. We do not 

condone this sloppy form of advocacy.
18

officials which may precede the initiation of formal proceedings' " to the same extent as 

statements made in the course of judicial proceedings. (Hagberg v. California Federal 

Bank (2004) 32 Cal.4th 350, 362, quoting Slaughter v. Friedman (1982) 32 Cal.3d 149, 

156.)

Lawrence's retaliation claim is based on statements and communicative conduct 

contained in the internal investigation, the notice of dismissal, amended notice of 

dismissal and subsequent order of dismissal. These communications are absolutely 

privileged under Civil Code section 47, subdivisions (a) and (b).

We disagree with Lawrence's argument the privilege should not apply because the 

communication was not in "good faith." In Action Apartment Assn., Inc. v. City of Santa 

Monica (2007) 41 Cal.4th 1232, 1251, the court stated prelitigation communication "is 

privileged only when it relates to litigation that is contemplated in good faith and under 

serious consideration." However, as the court explained, " '[it] is important to distinguish 

between the lack of a good faith intention to bring a suit and publications which are made 

without a good faith belief in their truth, i.e., malicious publications. The latter, when 

made in good faith anticipation of litigation, are protected as part of the price paid for 

affording litigants the utmost freedom of access to the courts. This policy consideration 

is not advanced, however, when the person publishing an injurious falsehood is not 

seriously considering litigation. In such a case, the publication has no "connection or 

logical relation" to an action and is not made "to achieve the objects" of any litigation.' "

(Ibid.) 
19

In this case, there can be no dispute official action against Lawrence was seriously 

considered and was, in fact, undertaken. All of the statements and communicative 

conduct at issue in this case were part of an official proceeding. Whether there was an 

improper motive for pursuing these proceedings does not bear on the analysis for 

application of the privilege under Civil Code section 47, subdivision (b). Therefore, 

Lawrence's retaliation cause of action is barred.6

D

Finally, Lawrence cannot establish a probability of prevailing on his breach of 

contract and breach of the implied covenant of good faith and fair dealing causes of 

action.

Lawrence has not demonstrated he can sue under contract theories for breach of 

terms and conditions of civil service employment. "[I]t is well settled in California that 

public employment is not held by contract but by statute and that, insofar as the duration 

of such employment is concerned, no employee has a vested contractual right to continue 

in employment beyond the time or contrary to the terms and conditions fixed by law. 

[Citations.] Nor is any vested contractual right conferred on the public employee because 

he occupies a civil service position since it is equally well settled that '[t]he terms and 

conditions of civil service employment are fixed by statute and not by contract. 

 

6 The only allegation arguably falling outside the scope of the privilege is the 

allegation retaliation was accomplished, in part, through "denial of promotions." 

However, according to the operative complaint, the promotion opportunities predated 

Lawrence's reporting of statutory or rule violations by his superiors that allegedly led to 

their retaliation against him. Therefore, Lawrence has not demonstrated he can prevail 

on his retaliation claim based on "denial of promotions."
20

[Citations.] Indeed, '[t]he statutory provisions controlling the terms and conditions of 

civil service employment cannot be circumvented by purported contracts in conflict 

therewith.' " (Miller v. State of California (1977) 18 Cal.3d 808, 813-814; see Shoemaker

v. Myers (1990) 52 Cal.3d 1, 23-24 [public employees cannot maintain causes of action 

for breach of implied covenants].)

The Supreme Court in Retired Employees Assn. of Orange County, Inc. v. County 

of Orange (2011) 52 Cal.4th 1171 did not overrule this general rule. However, it held 

"under California law, a vested right to health benefits for retired county employees can 

be implied under certain circumstances from a county ordinance or resolution" (id., at 

p. 1194) and " '[w]hen a public employer chooses . . . to enter into a written contract with 

its employee (assuming the contract is not contrary to public policy), it cannot later deny 

the employee the means to enforce that agreement.' " (Id., at p. 1182.)

The issue here does not involve vested rights to compensation or health benefits 

already earned. Lawrence alleges he was terminated without cause. Lawrence baldly 

asserts, without citation or analysis, he can prevail on a breach of contract cause of action 

based on the memorandum of understanding (MOU) between the County and the San 

Bernardino County Public Attorneys Association. However, even if we were to assume 

the MOU at issue here falls within an exception to the general rule, the argument does not 

assist Lawrence in pursuing this action in state court. Under the terms of the applicable 

MOU, the Commission is the exclusive forum for disciplinary proceedings.

Lawrence availed himself of the MOU's grievance procedure by appealing his 

termination to the Commission. The Commission approved the appeal and scheduled a 
21

hearing. After Lawrence declined the opportunity to be reinstated with back pay and a 

promotion, the County withdrew the discipline and the Commission cancelled the 

scheduled hearing. 

Lawrence contends, with no evidentiary support or citation to authority, he should 

have a right to bring his contractual claims because he had no right to contest the letter of 

reprimand the interim public defender placed in his file after she purged his file of the 

investigation and order of dismissal. A plain reading of the MOU does not support 

Lawrence's contention. 

The MOU states "[a]ny dispute which may arise between parties involving the 

application, meaning, or interpretation of the Personnel Rules shall be settled by the 

[Commission] in accordance with the appropriate appeal procedure established in the 

Personnel Rules . . . ." In the section discussing disciplinary hearings covered by the 

grievance procedure, the MOU states in cases of "major discipline" (defined as 

termination, demotion or suspension of 30 or more calendar days), the costs for the 

disciplinary hearing are shared. However, for "all other disciplinary cases, either party 

may request the use of a hearing officer" and if only one party requests a hearing officer, 

that party will pay the hearing costs. These provisions do not support Lawrence's 

contention he was unable to appeal any disciplinary action short of termination. The fact 

this was no longer a "major discipline" case does not appear to have precluded review, it 

may have only impacted how the costs for a hearing officer could be born.

There is nothing in this record to suggest Lawrence objected to the cancellation of 

the hearing or availed himself of the grievance procedure provided by the MOU to appeal 
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the disciplinary action of placing a letter of reprimand in his file. Therefore, Lawrence 

has not presented any evidence or authority demonstrating a probability of prevailing on 

his second and third causes of action.

DISPOSITION

The order denying the County's special motion to strike the first, second and third 

causes of action is reversed. The trial court is directed on remand to enter a new order 

granting the special motion to strike and to conduct any further proceedings consistent 

with this opinion. The County is awarded its costs on appeal.

MCCONNELL, P. J.

WE CONCUR:

HALLER, J.

AARON, J.