Blurring the Line Between Governors and Government

Guarino v. Cnty of Siskiyou, No. C076629 (D3 Mar. 29, 2018)

In this case, a former county counsel in Siskiyou County sued the County, the members of its board of supervisors, and a county administrator, alleging in nineteen different causes of action that he was unlawfully removed from his position. Defendants responded with an anti-SLAPP motion, arguing that the suit arose from a disciplinary investigation of workplace harassment. The trial court granted the motion in full.

First, Counsel didn’t challenge the grant of the motion on a bevy of causes of action, so those are affirmed without discussion. As to seven others, Counsel failed to specifically address them except by incorporating his trial court memo of Ps & As. Can’t do that. So that appeal is forfeited.

That leaves two causes of action—one for breach of contract, and the other for constructive discharge. The Court of Appeal affirms these too, finding that the claims arose out of an internal investigation that was an official proceeding authorized by law, and thus that they addressed activity protected under Code of Civil Procedure § 425.16(e)(1) and (2). And since Counsel didn’t make much of an effort to support the claims on the merits, the motion was correctly granted.

Affirmed.
In one respect, the result here seems problematic. The claims against the individuals are pretty clearly SLAPP-able under City of Montebello v. Vasquez, 1 Cal. 5th 409, 424 (2016). But the claim against the County are not.

As cases following Vasquez—cases like Area 51 Prods. v. City of Alameda—explain, the anti-SLAPP statute often protects the conduct of individual government employees who investigate or help a public agency come to a decision, or even are the decision makers. But a public agency’s the decision itself, when alleged to be unlawful, is generally not protected. So lawsuits against public entities challenging the legality of official government decisions do not ordinarily arise from protected activity. See, e.g., Park v. Board of Trustees of Cali. State Univ., 2 Cal. 5th 1057 (2017).

The theory on Plaintiff’s contract claims is that the County terminated Counsel’s employment under conditions it wasn’t allowed to. There’s nothing expressive about that.