Whitehall v. Cnty. of San Bernardino, No. E065672 (D4d2 Nov. 15, 2017)
Plaintiff sued her employer—a government Agency—for retaliating against her for being a whistleblower. The Agency responded with an anti-SLAPP motion asserting that the case arose from its internal investigation, which was an “other proceeding” protected under Code of Civil Procedure § 425.16(e)(1) and (2). Plaintiff then did something you should never, ever do. She conceded the “arising from” element was met, but argued that she could win on the merits. In a pleasant departure from the many cases that have gone wrong on that move, however the Court of Appeal here steps in to say that notwithstanding the concession, arising from isn’t met.
Plaintiff isn’t claiming that the Agency defamed her or something during the investigation. She’s claiming it fired her for blowing the whistle. Under the Supreme Court’s recent decision in Park, official employment decisions like that are not, in themselves, protected activity, even if they might be proceeded by “official proceedings” like internal investigations. Because the element of the claim sounds in the termination for retaliatory reasons, and not the Agency’s investigation, the claim does not actually arise from anything protected.
And in any event, this time, Plaintiff did make out a prima facie case of wrongful termination, including by disputing the various immunity and privilege defenses raised by the Agency.
Affirmed.
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