Complaint About One Employee Not a Public Concern

Baughn v. Dep't of Forestry & Fire Protection, No. C072462 (D3 Apr. 6, 2016).

Defendant—the state agency that fights forest fires—appeals from the denial of an anti-SLAPP motion. The court of appeal affirms. 

After plaintiff left the agency following some sexual harassment issues, he got a new job at a local agency that often worked in tandem with the state. The state sent the local agency a letter explaining that plaintiff was not welcome in its facilities during any joint operations. The local agency ultimately terminated plaintiff.

The agency argued that the letter arose from protected activity because it fell within Code of Civil Procedure § 425.16(e)(4)’s catchall definition of “other conduct in furtherance.” To satisfy (e)(4), however, the conduct from which the lawsuit arises must address an issue of public concern. The agency’s letter complaining about a single ex-employee did not satisfy that standard. While sexual harassment is certainly an issue of public concern on a general level, a letter about one employee’s prior misconduct does not concern enough people to count. So the denial of the motion is affirmed on the merits.

The trial court did, however, err by awarding fees to the plaintiff simply on the basis that the motion was denied. Plaintiffs are only entitled to recover their fees from a moving defendant on an anti-SLAPP motion if the motion was essentially frivolous. The trial court never made that finding. So the fee award gets reversed and remanded for the trial court to re-do the analysis under the proper standard.

Affirmed on the merits and reversed on fees.