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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

GEORGE FIERRO

,
Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES

,

Defendant and Respondent. B 305699

(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. Mo o re, 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 O ffice, the Public Defender ’ s O ffice and the Alternate Public Defender ’ s O ffice, for defamation, negligent and intentional infliction of emotional distress and interference with prospective economic advantage, based o n 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 (sect ion 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 l itigation 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, fil ed 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 D istrict A ttorney ’ s O ffice created and maintains a discovery comp liance system comprise d 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 contain s impeaching and pot entially 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 gen eration of subpoenas, the system automatically checks the witness information in the Brady /ORWITS databases. If a match is found, the system
advise s 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 d iscovery 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 ORW ITS 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 Aug ust 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 Cou nty 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 thir d 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 refe rs 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 ca use s 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 act ion for intentional infliction of emotional distress) spread false and defamatory rum or s about
him

. In his fourth cause of action for interference with prospective economic advantage, in addition to incorporating the5

prior allegations, Fierro alleged, aga in 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 t he prayer for punitive damages and attorney fees, and filed a special motion to strike the entire complaint pursuant to section 42 5 .1 6

. 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 atta ched 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 f

rom the ORWITS database w ere 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 protect ed 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 laws uit, t he County argued
its creation and use of ORWIT S w ere 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, subdiv ision (c), the common interest privilege; and Fierro could not prove malice

. In addition, t he County identified several Government Code immunity provisions
i t argued applied in the case and defeated Fierro ’ s causes of action as a matter of law. In any ev ent, 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 int erview, 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 min imize 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 tha t day and failed to document tho se statements in your report. ”7

placed him in the ORWITS database and refused to remove his name despite the fact he was “ complet ely 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 i n 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
wit h the Los Angeles County Public Defender ’ s O ffice 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 t rial 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 O ffice 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 deter mination 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 m isidentified, 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 perman ently 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 sup port Fierro cited Flatley v. Mauro (2 00 6) 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 th e 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 l awsuit, 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 footnote s in his opposition

papers , Fierro stated, “ Based on the evidence submitted, Fierro
moves t o 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 gran t a continu ance 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 oppositio n. 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 O RWITS
database

— that he had “ allegedly failed [ to ] include potentially exculpatory evidence in [his] report in the case of People v.
Guadarrama ”

— w as true and , therefore, not actionable under any
of Fierro ’ s theories of liability . That is, Fierro had been
i nvestigated, 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 t he disposition reached by the administrative review of his alleged
miscon duct 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 com plaint disposition defined

“ Exonerated ” as , “ When the investigation discloses that the10

as “ When the investigation discloses that there is insufficient
evidence to sustain the complaint or fully exonerate the employee

. ” Concurrently wi th 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 reci tation 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 Coun ty 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 p erson ’ 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 th at 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 wi th 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
wit h 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 motio n 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 s hifts 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 liabil ity 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., that12

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, L LC 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 anti

SLAPP 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.)

“ A s to the second step, a plaintiff seeking to demo nstrate the mer it 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 d escribed this second step as a

“ s ummary

- judgment

- like procedure. ” [ Citation.] The court does not weigh evidence or reso lve 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

t o su stain a favorable judgment. It accepts the plaintiff ’ s13

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 [t he court sh ould grant the section 425.16 motion “‘ if, as a matter of law, the
defendant ’ s evidence supporting t he motion defeats the plaintiff ’ s attempt to establish evid entiary support for the claim ’” ]

. ) 9 We review de novo an order granting or denying a special

m otion 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 F

i erro ’ s Causes of Action Arises from Protecte d 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 establ ish 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 protecte d 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 Fi erro ’ 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., Brig gs 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
thos e 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 Rush een

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 ” ]. )
Notwiths tanding 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 st atements concerning him are “ demonstrably and factually false ” and thus not protected activity under15

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 dolla r 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

statu te 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 [ “ o nce the defendant has made the required threshold showing that the challenged action arises
from assertedly protected activity, the plaintiff may counter by demonstrating that the underlying action was illegal as a matter of law because either the 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, a s 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

cr iminal 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
avoi ding 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 i n 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 Mau ro ’ 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, t hat allegation , which has
neither been conceded to be true nor conclusively established by undisputed evidence

, i s an issue for the second step of the anti

SLAPP analysis , which, in turn, requires Fierro to address the litigation privilege

. ( I d. at p. 316 [if “ a factual dispute ex ists about the legitimacy of the defendant ’ s conduct, it cannot be resolved within the first step but must be raised by the plaintiff
i n connection with the plaintiff ’ s burden to show a probabilit y of prevailing on the merits ” ]; Gerbosi v. Gaims, Weil, Wes t & 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
acti vity 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 its17

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 refe rence 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 communic ation (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

t aken 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 autho rized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Proce dure, except as follows

. . . .”18

37 Cal.4th at p. 1057 ; s ee 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. ” ( Blan chard v. DIRECTV, Inc. (2004) 12 3 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. Stenn is (2014) 230 Cal.App.4th 953, 965 [ “‘ [t]he litigation privilege has been applied in “ numerous cases ” involving “ fraudulent communi cations or perjured testimony ” ’” ].) If applicable, as the trial court apparently ruled, the litigation privilege is a complet e bar to Fierro ’ s causes of action for defamation, negligent and intentional infliction of emotional distress and interference with prospective eco nomic advantage and a proper ground for granting the County ’ s special motion to
strike. Recognizing that th e 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 Ca l.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, whi ch 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] t hresh old issue in determining if the litigation privilege appli es 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
determi ning 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 correc t 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 in20

determining whether the privilege applies is whether the injury allegedly resulted from an act that wa s communicative in its
essential nature ” ].)
Fierro ’ s attempt to avoid the bar of the litigation privilege
fails

. W hether or not a cause of action for inclusion in the ORWITS database without any dissemination of that information would be cognizable (apar t from any issue of privilege), 12 Fierro

12 To support his theory that merely being included in the ORWITS database is actionable

, Fierr o 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 revi ew 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 pr ocess. ” ( 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 decis ion, rejecting “ p laintiffs ’ 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 bec ause there had been no public disclosure of the information i n the database (only intragovernmental disclosures) and because reputation alone is
not a “ liberty ” interest protected by the due process c lause. ( 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

—

c ommunication of the allegedly fals e material in the ORWITS
database is an essential element of his claim s

. As discussed,
F ierro alleged with respect to his defamation cause of action that
the purportedly false and defamatory statements “ were made by Defendants to third parties including o ther law enforcement persons and lawyers ” ; as to his infliction of emotional distress

cause s 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 defamat ory
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 re ference 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 oth er 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 d id not suggest information from ORWITS that purport edly led to his failure to be hired by the Los Angeles County Public Defender ’ s O ffice 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 c ause of action is based on a communicative act, the litigation privilege extends to t hose 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 C ourt 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 interrog atories) 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 objectio ns 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 o f 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 we re present at the23

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 C ounty to respond to written discovery. Fierro asserted disco very 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 th e 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 42 5.16, 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 d oes not abuse its discretion by refusing to

gra nt 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 den ying 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

oppos ition 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 th at 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

. T he trial court acted well within its discretion in denying the discovery
request.25 D ISPOSITION 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 th e Chief Justice pursuant to article VI, section 6 of the California Constitution.