City SLAPPs Cop for Suing Against Disclosure

Collondrez v. City of Rio Vista, No. A159246 (D1d3 Mar. 16. 2021)

Cop sued a City to challenge the release of a report related to a disciplinary action under the Public Records Act. Cop claims the City didn’t gave him appropriate notice to contest the release. City filed an anti-SLAPP motion, which the court partially granted and partially denied, finding on the latter issue that Cop showed a probability of prevailing.

The Court of Appeal reverses, in part, finding that the whole motion should have been granted. The Court finds that the claims arose from protected activity because they entailed a release of information to the media on an issue of public interest—police misconduct. Cop tries to draw an analogy to cases finding no “arising from” when public officials are just carrying out mandatory duties. For example, serving an arrest warrant isn’t protected activity even though submission of an affidavit in support of it is a statement in a judicial proceeding. But the Court doesn’t agree with that analogy. The PRA requires agencies to make discretionary calls when releasing records and invoking exceptions. The Court finds that discretion to have sufficiently expressive value to implicate City’s free speech rights.

So far as the chance of success, recent amendments to the Penal Code specifically subject police discipline records to disclosure when they relate to a sustained finding of dishonesty against a police officer. Here, a City employee made such a finding against Cop after a Skelly hearing, but that finding wasn’t ultimately appealed because City and Cop settled the personnel action. As the Court of Appeal reads the new provision, however, that is enough to count as a sustained finding requiring disclosure. 

Reversed in part.

Prima Facie Proof of a Negative

Gruber v. Gruber, No. B294617 (D2d2 Apr. 30, 2020)

Pretty basic appeal of an order denying an anti-SLAPP motion on a malicious prosecution claim because plaintiff came forward with enough evidence of lack of probable cause to defeat the motion. In affirming, the Court of Appeal has an interesting discussion of the relationship between the prima facie standard in the second element of the anti-SLAPP analysis and the lack of probable cause issue for malicious prosecution. 

Framed in the context of the test, the question is how does a plaintiff come forward with enough evidence that, if credited as true, would permit a reasonable jury to find that no reasonable attorney would have thought the prior claim had any merit? Well here, the underlying lawsuit was for fraud. In opposing the motion, Plaintiff came forward with evidence showing that the defendants (plaintiffs in the prior case) knew that the statement they sued over was actually true. And that, my friends, is enough to beat an anti-SLAPP motion, even if the evidence is hotly disputed.

Affirmed.

A Jurisdiction-less SLAPP Is Still a SLAPP

Barry v. State Bar, No. S214056 (Cal. Jan. 5, 2017)

The Court of Appeal decided this anti-SLAPP case back in the summer of 2013. It was one of the very first cases I blogged about. The court held that a trial court didn’t have the power to grant an anti-SLAPP motion and award attorneys’ fees when the case was entirely lacking in subject matter jurisdiction.

But in a short unanimous opinion by Justice Kruger, the Supreme Court goes the other way. The court holds that under a court’s jurisdiction to assess its own jurisdiction, it has the power to resolve an anti-SLAPP motion where the lack of potential success is grounded in that very lack of jurisdiction. 

Although an anti-SLAPP motion can potentially reach the underlying substantive merits of a claim—problematic for a court without subject matter jurisdiction—when the lack of potential success is grounded in an absence of jurisdiction, there’s no such overreach. So the Court of Appeal’s analogy to cases holding that a pending anti-SLAPP appeal divests the trial court of jurisdiction to resolve issues connected to the appeal was off base, even if some of the language in those cases was directed to jurisdictional concerns. Moreover, to hold otherwise would invite a new form of SLAPPs—meritless cases brought without jurisdiction—that would undermine the core purpose of Code of Civil Procedure § 425.16.

That all being the case, courts also have the ancillary authority to award fees pursuant to the jurisdictional determination, just as they can decide the collateral issue of a cost award under § 1032 in connection with a jurisdictional dismissal.

Court of Appeal reversed.