In Towner v. County of Ventura (April 28, 2021) 2021 WL 1660616, the appellate court held that county’s public disclosure of investigator’s confidential personnel files was not protected under the anti-SLAPP statute because it was illegal as a matter of law.  A former District Attorney Investigator brought an action against the County of Ventura for violating his right to privacy and POBR based on the County’s disclosure of confidential personnel records in a superior court filing seeking to enjoin the Civil Service Commission from hearing his appeal of his termination.  In a significant win for peace officers seeking to vindicate their labor rights in court, the appellate court overturned the trial court’s granting of the County’s special motion to strike under the anti-SLAPP statute.

Strategic Lawsuits Against Public Participation (SLAPP) are lawsuits filed for the particular purpose of dissuading people from exercising First Amendment rights, typically through speech or petitioning the courts.  Anti-SLAPP motions, codified in Code of Civil Procedure 425.15, provide a vehicle for early dismissal of a lawsuit and an award of attorney’s fees for the defendant.  The analysis of an anti-SLAPP motion involves a two-step process: first, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity; if so, the plaintiff must demonstrate a probability of prevailing on the merits.

The Ventura County District Attorney fired Towner based on an accusation that he provided false testimony during an administrative hearing regarding another investigator. Towner filed an appeal with the Civil Service Commission of Ventura County (Commission). Thereafter, the County filed a writ of mandate petitioning the court to enjoin the Commission from hearing Towner’s appeal. The County had attached as exhibits to the petition an independent investigator’s recommendation and two notices of disciplinary action from Towner’s confidential personnel file that had been labeled as such.  Towner sued, claiming the County violated POBR and negligently violated Penal Code section 832.7, which provides, that certain private records of peace officers shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to 1043 and 1046 of the California Evidence Code.

The County filed an anti-SLAPP special motion to strike arguing their disclosure of Towner’s personnel records was protected activity because the disclosure occurred in the process of filing a writ of mandate in Ventura Superior Court. The trial court agreed and granted the County’s motion. Further, the court found that Towner failed to show a probability of success on the merits for his claims, because the County was protected by litigation privilege under Civil Code section 47 and that neither POBR nor Penal Code section 832.7 provided a private right of action based on disclosure of confidential personnel records.

The appellate court reversed holding that allegedly protected speech that is proven to be or conceded to be illegal as a matter of law falls outside the scope of the anti-SLAPP statute. Because Government Code section 1222 makes it a misdemeanor for a public officer to willfully omit to perform a duty they are enjoined to by law, the court held that Towner had carried his burden to show the County’s conduct was illegal as a matter of law and their violation of section 832.7 constituted a willful omission to perform a public duty enjoined by law. Therefore, the court held that County’s actions were not protected activity under the anti-SLAPP statute.

The County’s failure to comply with Penal Code section 832.7 resulted in the County committing a misdemeanor which precluded its anti-SLAPP motion.  The court’s reliance on Government Code section 1222 may reverse the recent trend of agencies seeking fees against unions and their members who seek to enforce their privacy rights. (See our blog post on Anti-SLAPP fees awarded in Collondrez v. City of Rio Vista.)