Prong Two Doesn't Take Much

Jeffra v. Cal. State Lottery, No. B292775 (d2d8 Aug. 29, 2019)

This is basically the first post-Wilson anti-SLAPP decision in the employment context. Plaintiff is a whistleblower. He claims his employer, the state lottery, opened up and conducted a pre-textual internal investigation of him after he complained about the payment of certain lottery prizes. The infestation was oppressive, which led to his decision to retire early. He then sued for retaliation. 

Case is made harder for Plaintiff because his case clearly arises from the investigation, not a termination. If it was the latter, under Wilson, the defendant would have to show something inherently expressive about the decision to end his employment to meet the arising from test in Code of Civil Procedure § 425.16(e)(4). But since it is based on an investigation by a government employer, that is considered an “official proceeding authorized by law” under § 425.16(e)(4).

In any event, Plaintiff came forward with enough evidence to make a prima facie case to beat the motion. Defendant says there was not any evidence of a causal relationship between the complaining and the launching of the investigation. But there is at least some evidence, and the Court is willing to draw inferences from circumstantial evidence in Plaintiff’s favor. 

Other courts, including the Supreme Court, have equated the second prong anti-SLAPP burden with the non-movant’s burden in opposing summary judgment. The Court here explains, however, that “[t]his is not a summary judgment case . . . ; it is an anti-SLAPP case where there has been no discovery.” It is not entirely clear how that shuold affect the standard. But the Court seems to imply that the context merits grating particularly generous inferences. 

Moreover, the Court finds that the prima facie case was not defeated by a declaration from the investigator stating that he was not aware of the complaining. In doing so, it equates the situation to § 437c(e), which permits the denial of summary judgment when the only evidence of state of mind is a declaration from that person attesting to it.

Reversed.