Filed 9/22/21 Fierro v. County of L.A. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GEORGE FIERRO,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and 

Respondent.

 B305699

 (Los Angeles County

 Super. Ct. No. 19PSCV00760)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael P. Vicencia, Judge. Affirmed. 

Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for 

Plaintiff and Appellant.

Collins Collins Muir + Stewart, Tomas A. Guterres, 

David C. Moore, and Daniel D. Hoffman for Defendant and 

Respondent.

____________________________
2

George Fierro sued the County of Los Angeles and three of 

its divisions, the District Attorney’s Office, the Public Defender’s 

Office and the Alternate Public Defender’s Office, for defamation, 

negligent and intentional infliction of emotional distress and 

interference with prospective economic advantage, based on 

inclusion of information regarding Fierro in the County’s Officer 

and Recurrent Witness Information Tracking System (ORWITS) 

database. The trial court granted the County’s special motion to 

strike pursuant to Code of Civil Procedure section 425.16

(section 425.16)—the anti-SLAPP statute.

1 On appeal Fierro 

argues his complaint did not arise from protected speech or 

petitioning activity because the statements about him in 

ORWITS “are demonstrably and factually false” and his lawsuit 

is not barred by the litigation privilege (Civ. Code, § 47, subd. (b))

because the County’s creation and maintenance of ORWITS 

constitute noncommunicative conduct. He also argues the trial 

court abused its discretion when it denied his ex parte motion to 

conduct discovery, filed several weeks after briefing on the

County’s motion had been completed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The County’s Discovery Compliance Database

The Los Angeles County District Attorney’s Office created 

and maintains a discovery compliance system comprised of a 

Brady database, a repository of information that must be 

disclosed in criminal cases pursuant to Brady v. Maryland (1963) 

373 U.S. 83 and Penal Code section 1054.1, subdivision (e), and 

1 SLAPP is an acronym for “strategic lawsuit against public 

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

409, 413, fn. 2.)
3

ORWITS, which contains impeaching and potentially impeaching 

information about law enforcement officers and other frequent 

witnesses, including experts, in criminal cases.2 The information 

in the two databases is shared only if a case has been filed. 

When a witness list is submitted for the generation of subpoenas, 

the system automatically checks the witness information in the 

Brady/ORWITS databases. If a match is found, the system 

advises the assigned prosecutor, who may view the data and 

disclose information about the witness as necessary for the 

preparation and trial of the case. As explained in a March 15, 

2018 special directive from District Attorney Jackie Lacey, the 

discovery compliance system is intended to “improve the capacity 

for deputies to comply with constitutional and statutory discovery 

obligations, ensure defendants receive a fair trial, protect 

recurrent witnesses from unfair surprise, and preserve the 

integrity of convictions.”

The County advises peace officers when it enters 

information about them into the ORWITS database. An officer 

may submit documents to explain or refute the information, and 

any documents provided are included with the ORWITS entry 

and are accessible to the prosecutors using the system.3

2 ORWITS was first implemented in February 2017. The 

Brady database was added to work in conjunction with ORWITZ 

in March 2018.

3 Entries into ORWITS are not reconsidered except in cases 

of mistaken identity. In contrast, a recurrent witness notified of 

his or her entry into the Brady database may seek 

reconsideration of that decision. 
4

2. Fierro’s Complaint

Fierro filed an unverified complaint on August 23, 2019 for 

defamation, negligent and intentional infliction of emotional 

distress and interference with prospective economic advantage, 

naming as defendants the County, as well as the Los Angeles 

County District Attorney’s Office, the Los Angeles County Public 

Defender’s Office and the Los Angeles County Alternate Public 

Defender’s Office, administrative divisions of the County. Fierro 

alleged he is a law enforcement officer in Los Angeles County 

and, on information and belief, ORWITS reveals to third parties 

that law enforcement officers are included in the database and 

discloses information about officers “that is unverified, false and 

defamatory.” Fierro further alleged law enforcement officers are 

added to the database without their knowledge or consent and 

“[j]ust being on the list creates an inference that the party on the 

list is dishonest or untruthful.”

In his first cause of action for defamation, Fierro alleged he 

had recently discovered he was included in the ORWITS 

database, which he refers to as a “list.” He additionally alleged 

the information attributed to him was defamatory and 

defamatory statements about him had been made by defendants 

to third parties “including other law enforcement persons and 

lawyers.” In his second and third causes of action, in addition to 

incorporating the prior allegations in the complaint, Fierro 

alleged the defendants and their agents had negligently (second 

cause of action for negligent infliction of emotional distress) or 

intentionally (third cause of action for intentional infliction of 

emotional distress) spread false and defamatory rumors about 

him. In his fourth cause of action for interference with 

prospective economic advantage, in addition to incorporating the 
5

prior allegations, Fierro alleged, again on information and belief, 

that the defendants, “through surreptitious contacts and 

correspondence with employers have made false and defamatory 

statements and among other things said [Fierro] is dishonest.” 

As a result of this conduct, Fierro alleged he is in jeopardy of 

having his contractual relations and future relationships with 

potential employers terminated.

3. The County’s Special Motion To Strike

The County demurred to Fierro’s complaint, moved to 

strike portions of the complaint, including the prayer for punitive 

damages and attorney fees, and filed a special motion to strike 

the entire complaint pursuant to section 425.16. The hearing on 

the special motion to strike was originally scheduled for 

January 6, 2020 but, because of recusals, was continued several 

times, eventually to March 12, 2020. 

In its special motion to strike the County described 

ORWITS (through a declaration of the deputy district attorney in 

charge of the discovery compliance unit of the district attorney’s 

office and attached material as to which the County requested 

judicial notice) and explained each of Fierro’s four causes of 

action was based on allegedly defamatory speech disseminated as 

a result of its use of ORWITS. The County argued its disclosures 

of information from the ORWITS database were protected 

activity within the meaning of section 425.16, subdivision (e)(2), 

as communications made in connection with anticipated 

litigation, and its input of information regarding Fierro and other 

officers constituted protected activity within the meaning of 

section 425.16, subdivision (e)(4), as conduct in furtherance of the 

exercise of free speech in connection with a public issue or an 

issue of public interest (criminal prosecutions). 
6

As to the possible merits of the lawsuit, the County argued 

its creation and use of ORWITS were absolutely protected by the 

litigation privilege in Civil Code section 47, subdivision (b). Its 

activity, the County asserted, was also conditionally privileged 

under Civil Code section 47, subdivision (c), the common interest 

privilege; and Fierro could not prove malice. In addition, the 

County identified several Government Code immunity provisions 

it argued applied in the case and defeated Fierro’s causes of 

action as a matter of law. In any event, the County contended,

the information in ORWITS regarding Fierro was true and, 

therefore, not actionable. 

4. Fierro’s Opposition and the County’s Reply

In his declaration in opposition to the special motion to 

strike, Fierro described himself as a senior detective and 27-year 

veteran of the El Monte Police Department. According to Fierro, 

he was included in ORWITS based on a false accusation that he 

had committed perjury and falsified evidence in connection with 

a 2012 criminal trial of an El Monte police sergeant, which ended 

in a mistrial and dismissal of charges when the jury could not 

reach a verdict.4 In retaliation, the district attorney’s office 

4 In June 2014 Fierro received a notice of administrative 

interview, which he attached as an exhibit to his opposition 

declaration, that explained the trial deputy in the case of People 

v. Guadarrama reported potential wrongdoing by Fierro. “It is 

alleged you may have lied on your report as well as attempted to 

minimize or distort evidence in the case. It is further alleged you 

provided false trial testimony . . . . [¶] During your testimony, 

you testified Sergeant Guadarrama reported to you she had been 

struck by Javier Marquez on the day of the incident. Yet, you 

failed to take appropriate action on that day and failed to 

document those statements in your report.”
7

placed him in the ORWITS database and refused to remove his 

name despite the fact he was “completely exonerated” from any 

wrongful conduct following an internal affairs administrative 

review. Fierro attached a copy of the letter he received notifying 

him of his inclusion in the ORWITS database.5

In his declaration Fierro provided examples of cases in 

which he had participated as an investigating officer but was not

called as a witness because of information concerning him in the 

ORWITS database. He also attributed to his inclusion in 

ORWITS his unsuccessful applications to become an investigator 

with the Los Angeles County Public Defender’s Office and a

Los Angeles County Sheriff’s Department “deputy sheriff lateral.”

In his legal memorandum in opposition to the special 

motion to strike, Fierro conceded statements made to prosecutors 

preparing for trial generally are protected activity within the 

5 The three paragraph letter, dated October 9, 2018, stated: 

“The Discovery Compliance Unit (DCU) of the Los Angeles 

County District Attorney’s Office has information that you 

allegedly failed [to] include potentially exculpatory evidence in 

your report in the case of People v. Guadarrama. [¶] This 

information will not be kept in the Office’s Brady database, which 

maintains information that must be provided to the defense if 

you are a witness in the future, but will be stored in ORWITS 

(Officer and Recurrent Witness Information Tracking System), an 

informational database. The entry of information into ORWITS 

is not an endorsement or a final determination of its validity and 

the decision to release information contained therein can only be 

made by the handling Deputy District Attorney, in consultation 

with their supervisor and/or the court. [¶] If you have any 

questions or believe you have been misidentified, please contact 

the DCU at . . . . Additional information can be found at . . . by 

entering the password . . . .”
8

meaning of section 425.16, but argued the statements in ORWITS 

are not protected “because the statements themselves are 

demonstrably and factually false and cannot be challenged in any 

manner, thereby permanently stigmatizing Fierro.” Fierro 

contended being on a government blacklist containing false 

information without the ability to challenge the false information 

constituted stigmatization and reputational injury for which 

relief must be available. In support Fierro cited Flatley v. Mauro

(2006) 39 Cal.4th 299 (Flatley), which held, when it is conceded or 

established as a matter of law by uncontested evidence that a 

person acted illegally when exercising his or her First 

Amendment rights, that activity is not protected within the 

meaning of the anti-SLAPP statute. 

Fierro described the elements of his causes of action for 

defamation, intentional and negligent infliction of emotional 

distress and interference with prospective economic advantage 

and argued the evidence submitted with his opposition papers 

made a prima facie showing of facts that, if proved, would 

support a judgment in his favor on each of his causes of action. 

Fierro asserted the litigation privilege was unavailable as a 

defense because his lawsuit, which he described as “analogous to 

invasion of privacy,” was based on reputational injury caused by 

his inclusion in the ORWITS database, which he described as 

noncommunicative conduct outside the scope of the privilege.6 He 

6 In two somewhat enigmatic footnotes in his opposition 

papers, Fierro stated, “Based on the evidence submitted, Fierro 

moves to amend his Complaint to conform to proof.” No motion to 

amend the complaint is contained in the record on appeal; there 

is no indication Fierro filed or the trial court ruled on any such 

motion; and Fierro does not contend on appeal the trial court 

erred in denying a motion to amend.
9

also contended he had made a prima facie showing of malice and 

that the governmental immunity provisions cited by the County 

were inapplicable.

In a final section of the opposition memorandum, Fierro 

requested, as an alternative to denying the motion, that the trial 

court grant a continuance to allow him to conduct discovery to 

overcome anticipated hearsay objections to his declaration (which 

recited conversations he had with other law enforcement officers 

and prosecutors) and the two other declarations filed with his 

opposition. However, Fierro did not file a separate noticed 

motion to permit discovery.

In reply papers in support of its special motion to strike, 

the County emphasized the exhibits Fierro attached to his 

opposition declaration confirmed the information in the ORWITS 

database—that he had “allegedly failed [to] include potentially 

exculpatory evidence in [his] report in the case of People v. 

Guadarrama”—was true and, therefore, not actionable under any 

of Fierro’s theories of liability. That is, Fierro had been 

investigated, following a report by a trial deputy of potential 

misconduct, for lying on a report, attempting to minimize or 

distort evidence and providing false trial testimony; and the 

disposition reached by the administrative review of his alleged 

misconduct was “Not Sustained,” which the document 

distinguished from “Unfounded”

7 and “Exonerated,”8 and defined 

7 The notification of complaint disposition sent to Fierro 

defined “Unfounded” as, “When the investigation discloses that 

the alleged act(s) did not occur or did not involve department 

personnel.”

8 The notification of complaint disposition defined 

“Exonerated” as, “When the investigation discloses that the 
10

as “When the investigation discloses that there is insufficient 

evidence to sustain the complaint or fully exonerate the 

employee.” Concurrently with its reply memorandum, the 

County filed objections to portions of Fierro’s declaration and 

attached exhibits, as well as to several paragraphs in the 

declarations of two witnesses submitted by Fierro, on a variety of 

grounds, including that Fierro’s recitation of conversations with 

prosecutors and law enforcement officers constituted 

inadmissible hearsay. 

5. The Trial Court’s Ruling

Following a hearing on March 12, 2020 the trial court 

granted the County’s requests for judicial notice, sustained in 

part and overruled in part the County’s objections to Fierro’s 

opposition evidence and granted the County’s special motion to 

strike Fierro’s complaint. The court awarded the County $3,850 

in attorney fees and costs.

Judgment was entered in favor of the County on March 26, 

2020. Fierro filed a timely notice of appeal.

DISCUSSION

1. Governing Law and Standard of Review

Section 425.16, subdivision (b)(1), provides, “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 

alleged act occurred, but that the act was justified, lawful and/or 

proper.”
11

established that there is a probability that the plaintiff will 

prevail on the claim.”

Pursuant to section 425.16, subdivision (e), an “‘act in 

furtherance of a person’s right of petition or free speech under the 

United States or California Constitution in connection with a 

public issue’ includes: (1) any written or oral statement or 

writing made before a legislative, executive, or judicial 

proceeding, or any other official proceeding authorized by law, 

(2) 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, (3) any written or oral statement or writing 

made in a place open to the public or a public forum in connection 

with an issue of public interest, or (4) any other conduct in 

furtherance of the exercise of the constitutional right of petition 

or the constitutional right of free speech in connection with a 

public issue or an issue of public interest.”

In ruling on a motion under section 425.16, the trial court 

engages in a two-step process. “First, the defendant must 

establish that the challenged claim arises from activity protected 

by section 425.16. [Citation.] If the defendant makes the 

required showing, the burden shifts to the plaintiff to 

demonstrate the merit of the claim by establishing a probability 

of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord, 

Park v. Board of Trustees of California State University (2017) 

2 Cal.5th 1057, 1061 (Park).) In making its determination the 

court must consider the parties’ pleadings and affidavits or 

declarations describing the facts on which liability or defenses 

are predicated. (§ 425.16, subd. (b)(2).) “Only a cause of action 

that satisfies both prongs of the anti-SLAPP statute—i.e., that 
12

arises from protected speech or petitioning and lacks even 

minimal merit—is a SLAPP, subject to being stricken under the 

statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics 

omitted; accord, Oasis West Realty, LLC v. Goldman (2011) 

51 Cal.4th 811, 820.) 

“A claim arises from protected activity when that activity 

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

2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step 

burden is to identify the activity each challenged claim rests on 

and demonstrate that that activity is protected by the antiSLAPP statute. A ‘claim may be struck only if the speech or 

petitioning activity itself is the wrong complained of, and not just 

evidence of liability or a step leading to some different act for 

which liability is asserted.’” (Wilson v. Cable News Network, Inc. 

(2019) 7 Cal.5th 871, 884 (Wilson); accord, Park, at p. 1060.) “To 

determine whether a claim arises from protected activity, courts 

must ‘consider the elements of the challenged claim and what 

actions by the defendant supply those elements and consequently 

form the basis for liability.’” (Wilson, at p. 884; accord, Park, at 

p. 1063.)

“As to the second step, a plaintiff seeking to demonstrate 

the merit of the claim ‘may not rely solely on its complaint, even 

if verified; instead, its proof must be made upon competent 

admissible evidence.’” (Monster Energy Co. v. Schechter (2019) 

7 Cal.5th 781, 788.) “‘We have described this second step as a 

“summary-judgment-like procedure.” [Citation.] The court does 

not weigh evidence or resolve conflicting factual claims. Its 

inquiry is limited to whether the plaintiff has stated a legally 

sufficient claim and made a prima facie factual showing sufficient 

to sustain a favorable judgment. It accepts the plaintiff’s 
13

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

determine if it defeats the plaintiff’s claim as a matter of law.’” 

(Ibid.; see Taus v. Loftus (2007) 40 Cal.4th 683, 714 [the court 

should grant the section 425.16 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’”].)

9 

We review de novo an order granting or denying a special 

motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th 

at p. 884; Sweetwater Union High School Dist. v. Gilbane 

Building Co. (2019) 6 Cal.5th 931, 940; Park, supra, 2 Cal.5th at 

p. 1067.)

2. Each of Fierro’s Causes of Action Arises from Protected 

Activity

Each of the four causes of action in Fierro’s complaint is 

expressly based on the disclosure to third parties of information 

contained in the ORWITS database. The declarations submitted 

in support of the County’s special motion to strike establish that 

all disclosures were to prosecutors or other law enforcement 

personnel in connection with ongoing or anticipated criminal 

proceedings. Addressing this evidence, Fierro acknowledges, as 

he must, that in general all such communications are protected 

activity within the meaning of section 425.16, subdivision (e)(2)

9 The record on appeal contains a notice of ruling prepared 

by counsel for the County but not a minute order from the 

March 12, 2020 hearing. The reporter’s transcript does not 

include an explanation by the court of its ruling granting the 

motion, but the court’s questioning of Fierro’s counsel during the 

hearing suggests the court rejected Fierro’s reliance on Flatley, 

supra, 39 Cal.4th 299, as it related to step one of the anti-SLAPP 

analysis, and found the litigation privilege applicable to bar 

Fierro’s claims under step two. 
14

and (4). (See, e.g., Briggs v. Eden Council for Hope &

Opportunity (1999) 19 Cal.4th 1106, 1115 [“[c]ommunications 

preparatory to or in anticipation of the bringing of an action or 

other official proceeding are within the protection of the litigation 

privilege of Civil Code section 47, subdivision (b), . . . [and] are 

equally entitled to the benefits of section 425.16,” internal 

citations and quotation marks omitted]; Contreras v. Dowling 

(2016) 5 Cal.App.5th 394, 408-409 [the anti-SLAPP statute 

protects not only litigants, but their attorneys’ litigation-related 

statements; “‘[u]nder the plain language of section 425.16, 

subdivision (e)(1) and (2), as well as the case law interpreting 

those provisions, all communicative acts performed by attorneys 

as part of their representation of a client in a judicial proceeding 

or other petitioning context are per se protected as petitioning 

activity by the anti-SLAPP statute’”]; Cabral v. Martins (2009) 

177 Cal.App.4th 471, 480 [“communicative acts performed by 

attorneys as part of their representation of a client in a judicial 

proceeding or other petitioning context are per se protected as 

petitioning activity by the anti-SLAPP statute”]; see also Rusheen

v. Cohen (2006) 37 Cal.4th 1048, 1056 [section 425.16 protects 

“communicative conduct such as the filing, funding, and 

prosecution of a civil action,” including such acts when

“committed by attorneys in representing clients in litigation”].)

Notwithstanding the general applicability of section 425.16 

to disclosures such as those challenged in his complaint, citing 

Flatley, supra, 39 Cal.4th 299, Fierro contends the trial court 

erred in ruling the County had carried its first-step burden 

because the statements concerning him are “demonstrably and 

factually false” and thus not protected activity under 
15

section 425.16, subdivision (e). Fierro misapprehends the 

meaning and scope of Flatley and its progeny.

In Flatley, a case involving a plaintiff’s causes of action for 

civil extortion, intentional infliction of emotional distress and 

wrongful interference with economic advantage against an 

attorney who had threatened to publicize a rape allegation 

against the plaintiff if he did not pay a multimillion dollar 

settlement, the Supreme Court held, if “the defendant concedes, 

or the evidence conclusively establishes, that the assertedly 

protected speech or petition activity was illegal as a matter of 

law, the defendant is precluded from using the anti-SLAPP 

statute to strike the plaintiff’s action.” (Flatley, supra, 39 Cal.4th 

at p. 320;10 accord, Soukup v. Law Offices of Herbert Hafif (2006)

39 Cal.4th 260, 286-287 [“once the defendant has made the 

required threshold showing that the challenged action arises 

from assertedly protected activity, the plaintiff may counter by 

demonstrating that the underlying action was illegal as a matter 

of law because either the defendant concedes the illegality of the 

assertedly protected activity or the illegality is conclusively

established by the evidence presented in connection with the 

motion to strike”].) However, as this court recently explained in 

Towner v. County of Ventura (2021) 63 Cal.App.5th 761, 771, 

“illegal” as used in Flatley was intended to mean violation of a 

criminal statute: “‘[A] plaintiff’s complaint always alleges a 

defendant engaged in illegal conduct in that it violated some 

10 The Supreme Court explained that activity illegal as a 

matter of law is not protected by the constitutional guarantees of 

free speech and petition and, therefore, cannot be the basis for a 

special motion to strike under section 425.16. (Flatley, supra, 

39 Cal.4th at p. 305.)
16

common law standard of conduct or statutory prohibition, giving 

rise to liability, and we decline to give plaintiffs a tool for 

avoiding the application of the anti-SLAPP statute merely by 

showing any statutory violation.’”

Fierro’s complaint does not allege the County’s 

maintenance and use of ORWITS violated any statute, let alone a 

criminal statute. Moreover, unlike the situation in Flatley, in 

which the defendant’s illegal activity (extortion) had been 

established as a matter of law by the undisputed evidence before 

the trial court considering the special motion to strike (see 

Flatley, supra, 39 Cal.4th at p. 330 [“[e]valuating Mauro’s 

conduct, we conclude that the letter and subsequent phone calls 

constitute criminal extortion as a matter of law”]), Fierro merely 

alleges the County’s activity is unlawful, which the County 

vigorously denies. Accordingly, that allegation, which has 

neither been conceded to be true nor conclusively established by 

undisputed evidence, is an issue for the second step of the antiSLAPP analysis, which, in turn, requires Fierro to address the 

litigation privilege. (Id. at p. 316 [if “a factual dispute exists 

about the legitimacy of the defendant’s conduct, it cannot be 

resolved within the first step but must be raised by the plaintiff 

in connection with the plaintiff’s burden to show a probability of 

prevailing on the merits”]; Gerbosi v. Gaims, Weil, West & 

Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [“[w]e understand 

Flatley to stand for this proposition: when a defendant’s 

assertedly protected activity may or may not be criminal activity, 

the defendant may invoke the anti-SLAPP statute unless the 

activity is criminal as a matter of law”]; Seltzer v. Barnes (2010) 

182 Cal.App.4th 953, 965 [same].) In sum, the trial court 

correctly ruled the County carried its burden of demonstrating its 
17

protected activity formed the basis for each of Fierro’s causes of

action.

3. The Litigation Privilege Bars Fierro’s Lawsuit

Civil Code section 47, subdivision (b),11 creates an absolute 

privilege for litigation-related communications: “‘Although 

originally enacted with reference to defamation [citation], the 

privilege is now held applicable to any communication, whether 

or not it amounts to a publication [citations], and all torts except 

malicious prosecution. [Citations.] Further, it applies to any 

publication required or permitted by law in the course of a 

judicial proceeding to achieve the objects of the litigation, even 

though the publication is made outside the courtroom and no 

function of the court or its officers is involved. [Citations.] [¶] 

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 have some

connection or logical relation to the action. [Citations.]’ 

[Citation.] Thus, ‘communications with “some relation” to

judicial proceedings’ are ‘absolutely immune from tort liability’ by

the litigation privilege [citation]. It is not limited to statements 

made during a trial or other proceedings, but may extend to steps 

taken prior thereto, or afterwards.” (Rusheen v. Cohen, supra, 

11 Civil Code section 47 provides in part: “A privileged 

publication or broadcast is one made: [¶] . . . [¶] (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, except as follows . . . .”
18

37 Cal.4th at p. 1057; see Action Apartment Assn., Inc. v. City of

Santa Monica (2007) 41 Cal.4th 1232, 1241 [“‘[t]he principal

purpose of [the litigation privilege] 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’”]; Trinity Risk Management, LLC v. Simplified Labor

Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1006.)

Moreover, “‘communications made in connection with 

litigation do not necessarily fall outside the privilege merely 

because they are, or are alleged to be, fraudulent, perjurious, 

unethical, or even illegal’ assuming they are logically related to 

litigation.” (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 

903, 921; accord, Kashian v. Harriman (2002) 98 Cal.App.4th 

892, 920; see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 

956 [“the privilege extends even to civil actions based on 

perjury”]; Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965 

[“‘[t]he litigation privilege has been applied in “numerous cases”

involving “fraudulent communications or perjured testimony”’”].)

If applicable, as the trial court apparently ruled, the 

litigation privilege is a complete bar to Fierro’s causes of action 

for defamation, negligent and intentional infliction of emotional 

distress and interference with prospective economic advantage

and a proper ground for granting the County’s special motion to 

strike. 

Recognizing that the litigation privilege protects 

communications among prosecutors or between prosecutors and 

law enforcement personnel during or in anticipation of active 

criminal proceedings (e.g., Optional Capital, Inc. v. Akin Gump 

Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 116

[“[m]any cases have explained that [Civil Code] section 47[,
19

subdivision] (b) encompasses not only testimony in court and

statements made in pleadings, but also statements made prior to

the filing of a lawsuit, whether in preparation for anticipated

litigation or to investigate the feasibility of filing a lawsuit,”

internal quotation marks omitted]), Fierro notes, correctly, that 

the privilege protects only against communicative acts and not 

against noncommunicative conduct. (E.g., Kimmel v. Goland

(1990) 51 Cal.3d 202, 205, 209 [litigation privilege does not apply 

to unlawful recording, in anticipation of litigation, of confidential 

telephone conversations]; Ribas v. Clark (1985) 38 Cal.3d 355, 

363-365 [privilege applies to testimony, which is communicative, 

but not to alleged earlier illegal eavesdropping, which is

noncommunicative]; see Action Apartment Assn., Inc. v. City of 

Santa Monica, supra, 41 Cal.4th at p. 1248 [“[a] threshold issue 

in determining if the litigation privilege applies is whether the 

alleged injury arises from a communicative act or

noncommunicative conduct”]; Rusheen v. Cohen, supra, 

37 Cal.4th at p. 1058 [“[b]ecause the litigation privilege protects 

only publications and communications, a ‘threshold issue in 

determining the applicability’ of the privilege is whether the 

defendant’s conduct was communicative or noncommunicative”].) 

According to Fierro, “the gravamen of this lawsuit is that 

Appellant is named on the ORWITS list, that the list accuses him 

of committing perjury and falsifying evidence, that the 

information on the list is false, and that Appellant has no 

opportunity to challenge or correct the false accusation. . . . The 

existence of the ORWITS list itself is noncommunitive [sic] 

conduct.” (See Rusheen, at p. 1058 [“The distinction between

communicative and noncommunicative conduct hinges on the

gravamen of the action. [Citations.] That is, the key in
20

determining whether the privilege applies is whether the injury

allegedly resulted from an act that was communicative in its

essential nature”].)

Fierro’s attempt to avoid the bar of the litigation privilege 

fails. Whether or not a cause of action for inclusion in the 

ORWITS database without any dissemination of that information 

would be cognizable (apart from any issue of privilege),12 Fierro 

12 To support his theory that merely being included in the 

ORWITS database is actionable, Fierro relies on Elhady v. Kable

(E.D.Va. 2019) 391 F.Supp.3d 562, in which the plaintiffs alleged 

they had been listed in the Department of Homeland Security’s

Terrorist Screening Database (TSDB) and had suffered various 

negative consequences as a result. The district court held the 

program violated the plaintiffs’ right to procedural due process 

because individuals were not told whether they were in the TSDB 

or provided with the information upon which their status might 

be based; there was no independent review of TSDB status by a 

neutral decision maker; and the government’s standards for 

inclusion in the TSDB were vague. (Id. at pp. 580-582.) The 

court held the plaintiffs were not entitled to pre-deprivation 

notice, but were entitled to “post-deprivation process.” (Id. at 

pp. 583-584.) 

Although Fierro in his reply brief continues to cite the 

district court’s Elhady opinion and commend it as “vital” to our 

analysis, a month before that brief was filed the Fourth Circuit 

reversed the district court’s decision, rejecting “plaintiffs’ basic 

contention . . .that inclusion in the TSDB stigmatizes them by 

associating them with terrorism.” (Elhady v. Kable (4th Cir.

2021) 993 F.3d 208, 225.) The Court of Appeals held the 

plaintiffs’ due process claim failed because there had been no 

public disclosure of the information in the database (only 

intragovernmental disclosures) and because reputation alone is 

not a “liberty” interest protected by the due process clause. 

(Id. at pp. 225-226.)
21

did not plead any such cause of action. As to the causes of action 

he did allege—defamation, infliction of emotional distress and 

interference with prospective economic advantage—

communication of the allegedly false material in the ORWITS 

database is an essential element of his claims. As discussed, 

Fierro alleged with respect to his defamation cause of action that 

the purportedly false and defamatory statements “were made by 

Defendants to third parties including other law enforcement 

persons and lawyers”; as to his infliction of emotional distress 

causes of action that defendants “negligently spread false and 

defamatory rumors” about him and “intentionally spread false 

and defamatory rumors about him”; and for his interference 

cause of action that defendants “distributed to third parties false 

information,” “illegally shared false information” and “actively 

and intentionally through surreptitious contacts and 

correspondence with employers have made false and defamatory 

statements.”

13 

To be sure, as the Supreme Court acknowledged in 

Jacob B. v. County of Shasta, supra, 40 Cal.4th at page 957, 

13 Notwithstanding the reference in his complaint to “third 

parties,” Fierro did not proffer any evidence in opposition to the 

County’s motion that information from the ORWITS database 

had been communicated to anyone but prosecutors and law 

enforcement personnel or for reasons other than pretrial and 

trial-related activities; and he did not argue in the trial court, 

and does not argue on appeal, that the litigation privilege is 

inapplicable for that reason. In particular, Fierro did not suggest 

information from ORWITS that purportedly led to his failure to 

be hired by the Los Angeles County Public Defender’s Office or 

the Los Angeles County Sheriff’s Department had been disclosed 

other than in a litigation context.
22

accessing information stored in a computer database is 

noncommunicative conduct. But the Court continued, “[B]ecause 

‘the cause of action is based on a communicative act, the 

litigation privilege extends to those noncommunicative actions

which are necessarily related to that communicative act.’” (Ibid.; 

accord, Rusheen v. Cohen, supra, 37 Cal.4th at p. 1052.)

4. The Trial Court Did Not Abuse Its Discretion in Denying 

Fierro’s Belated Ex Parte Motion for Discovery

a. Procedural background

On November 11, 2019, two weeks after the County had 

filed its special motion to strike, Fierro served written discovery 

(special interrogatories) on defendants. The County served 

written responses on December 12, 2019, objecting to the 

discovery based, in part, on section 416.25, subdivision (g), which 

stays all discovery upon the filing of a special motion to strike. 

As discussed, in his opposition to the special motion to 

strike filed December 20, 2019, Fierro requested, as an 

alternative to the court denying the motion, that the matter be 

continued and he be permitted to depose several witnesses in 

order to avoid likely hearsay objections to portions of the 

declarations (including Fierro’s) submitted with the opposition to 

the motion. On December 27, 2019 the County filed its reply in 

support of the special motion to strike and, as predicted by 

Fierro, objected to significant portions of the opposition 

declarations.

At the originally scheduled hearing on the special motion to 

strike on January 6, 2020, Judge Peter Hernandez recused 

himself and continued the hearing on the motion to February 26, 

2020. Counsel for Fierro and the County were present at the 
23

January 6, 2020 hearing. Fierro did not request authorization to 

conduct discovery. 

On January 22, 2020 Fierro filed an ex parte motion to take 

depositions and to compel the County to respond to written 

discovery. Fierro asserted discovery was necessary “to deal with”

the hearsay objections the County had interposed to the 

declarations submitted with Fierro’s opposition papers. The 

County opposed the ex parte request. At a hearing on 

January 23, 2020 Judge Gloria White-Brown denied the ex parte 

motion, ruling Fierro should have filed a noticed motion to 

request discovery.14

b. Fierro failed to properly seek discovery 

Section 425.16, subdivision (g), provides, “All discovery 

proceedings in the action shall be stayed upon the filing of a 

notice of motion made pursuant to this section. . . . The court, on 

noticed motion and for good cause shown, may order that 

specified discovery be conducted notwithstanding this 

subdivision.” Orders granting or denying discovery pursuant to 

section 425.16, subdivision (g), are reviewed for an abuse of 

discretion. (Balla v. Hall (2021) 59 Cal.App.5th 652, 692; 

Contemporary Services Corp. v. Staff Pro Inc. (2007) 

152 Cal.App.4th 1043, 1061.)

A trial court does not abuse its discretion by refusing to 

grant an ex parte application seeking discovery “when 

section 425.16, subdivision (g) unequivocally requires a noticed 

14 Judge White-Brown disclosed at the hearing that her

daughter is a deputy district attorney in Los Angeles County. 

Judge White-Brown subsequently recused herself; and the case 

was transferred to Judge Michael P. Vicencia, who heard the 

special motion to strike.
24

motion for such requests.” (Contemporary Services Corp. v. Staff 

Pro Inc., supra, 152 Cal.App.4th at p. 1062 [no abuse of discretion 

in denying ex parte application for discovery under 

section 425.16, subdivision (g)]; accord, Tuchscher Development

Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 

106 Cal.App.4th 1219, 1247-1248 [plaintiff’s discovery request 

“was not authorized under section 425.16, subdivision (g) because 

it was not made by noticed motion”].)

Even if an ex parte request for discovery under 

section 425.16, subdivision (g), were permissible, however, Fierro 

failed to make “an affirmative factual showing in a declaration

containing competent testimony based on personal knowledge of 

irreparable harm, immediate danger, or any other statutory basis 

for granting relief ex parte,” as required by California Rules of 

Court, rule 3.1202(c). As discussed, when preparing his 

opposition to the County’s special motion to strike, Fierro 

recognized that significant portions of his declaration and those 

of his two witnesses were subject to hearsay objections. Nothing 

prevented Fierro from filing a noticed motion seeking discovery 

at that time to address the evidentiary issues he anticipated, 

even if it would have been necessary to accompany the motion 

with an ex parte request for an early hearing date. The trial 

court acted well within its discretion in denying the discovery 

request.
25

DISPOSITION

The judgment is affirmed. The County is to recover its 

costs on appeal, including attorney fees in an amount to be 

determined by the trial court. 

PERLUSS, P. J.

We concur:

FEUER, J.

IBARRA, J.*

* Judge of the Santa Clara Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.