Whitehall v. Cnty. of San Bernardino

• Decision Date: 15 November 2017
• Docket Number: E065672
• Citation: 225 Cal.Rptr.3d 321,17 Cal.App.5th 352
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Anna WHITEHALL, Plaintiff and Respondent, v. COUNTY OF SAN BERNARDINO, Defendant and Appellant.

17 Cal.App.5th 352

225 Cal.Rptr.3d 321

Mary Anna WHITEHALL, Plaintiff and Respondent,

v.COUNTY OF SAN BERNARDINO, Defendant and Appellant.

E065672

Court of Appeal, Fourth District, Division 2, California.

Filed November 15, 2017

Kessel & Associates, Elizabeth M. Kessel and Victoria N. Jalili, for Defendant and Appellant.

Law Offices of Valerie Ross, Valerie Ross, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

Plaintiff, Mary Anna Whitehall, was a social worker for the San Bernardino County Children and Family Services (CFS or the County) who sought legal advice pertaining to any liability she might have for submitting misleading information and doctored photographs to the juvenile court at the direction of her superiors. Her counsel prepared a filing for the juvenile court to apprise it of the falsified information, and plaintiff was immediately placed on administrative leave for disclosing confidential information to an unauthorized person. Upon being informed she would be terminated for the breach, plaintiff resigned her position and filed a whistle blower action against the County. The County filed a special motion to strike the complaint as an Anti-SLAPP action, pursuant to Code of Civil Procedure, section 425.16, which was denied by the trial court. The County appealed.

On appeal, the County asserts that the trial court erred in determining that plaintiff had established the second prong of the criteria to overcome a special motion to strike an Anti-SLAPP lawsuit by finding a likelihood she would prevail because the County's actions were not privileged or covered by governmental immunity. We affirm.

BACKGROUND

Plaintiff was a social worker for San Bernardino County CFS. In July 2013, another social worker, Eric B., was assigned to investigate a case in which a nine-month old baby died under suspicious circumstances. Four older children were placed in protective custody and, after the detention hearing, plaintiff was assigned to investigate for the jurisdiction/disposition hearing, in a capacity referred to as a "J/D writer."

In her capacity as J/D writer, plaintiff obtained the police report which corroborated Eric B.'s concerns for the safety of the other children, and photographs of the family home where the baby lived at the time of death, showing filthy conditions, including feces on the floor. These photographs confirmed the description of the house by social worker Eric B., and a report of doctors who examined the four siblings showed ligature marks on the wrists and ankles of the children, as well as burn marks. However, the deputy director of CFS instructed plaintiff to withhold certain photographs and to provide other photographs that had been altered. Plaintiff later learned that CFS never provided a complete police report to the court.

Worried that the court would have an inaccurate picture of the home, plaintiff gave the assigned deputy county counsel a computer disk containing all the photographs obtained from the police. Shortly after providing this information to county counsel, plaintiff was removed from the case and was instructed not to discuss the case with the new J/D writer, which was unusual, given that a J/D writer ordinarily included interviews and information obtained from other social workers who have worked on a case. Then plaintiff learned that the original social worker, Eric B., had been fired, allegedly for exaggerating the condition of the house and reporting the smell of methamphetamine. However, the information provided by Eric B. had been confirmed by another social worker who had assisted him during the initial response, as well as by the police report.

In the meantime, a new trial had been ordered on the alleged basis that Eric B. had lied, and the case had been assigned to a different judge. All the previously presented evidence had been marked confidential with instructions that the new judge would not view it. Concerned for the safety of the four siblings of the dead baby, plaintiff, Eric B., and the social worker who had assisted him during the initial response decided to inform the juvenile court that a fraud had been perpetrated on the court by filing a motion.

Plaintiff met with attorney Valerie Ross to discuss her potential liability, after which attorney Ross drafted a declaration for plaintiff containing that information. The three social workers filed a motion¹ to inform the juvenile court that CFS had perpetrated a fraud upon the court by telling the court that social worker Eric B. had lied and by instructing plaintiff to withhold evidence and provide altered photographs to the court and counsel.

Six days after filing the motion, plaintiff was placed on administrative leave for two months. The county's reasons for placing plaintiff on administrative leave were to initiate an internal investigation regarding plaintiff's potential violation of County rules and policies barring the disclosure of confidential information to unauthorized persons. The County asserted that social workers, including J/D writers, are overseen by supervisors and managers who are required to review the underlying case and supporting evidence, and determine whether the recommendations are appropriate.

CFS further explained that its supervisors have the final say in determining what evidence to present to the juvenile court and what recommendations to make, pursuant to a Memorandum of Understanding between the County and the San Bernardino Public Employees Association, which delegates such discretionary authority to management. Thus, the County maintained that plaintiff's allegation regarding presentation of photographs to the juvenile court was within CFS's management discretion.

After being on administrative leave for approximately two months, the County decided to terminate plaintiff for violating the confidentiality policy, but Plaintiff resigned to avoid being fired. On September 25, 2015, plaintiff filed a complaint against the County and CFS based on whistleblower liability and retaliation. ( Lab. Code, § 1102.5 ) On November 25, 2015, the County filed a Special Motion to Strike the Complaint as a SLAPP Suit, pursuant to Code of Civil Procedure, section 425.16, alleging that the plaintiff's complaint was predicated upon the County's petitioning activity, and asserting plaintiff could not demonstrate a probability of prevailing because the County was immune, plaintiff had not been subjected to an adverse employment action, and because plaintiff had unclean hands.

On December 30, 2015, the motion was heard, argued, and denied by the trial court. The County appealed.

DISCUSSION

The County argues that although the trial court properly found that plaintiff's action arose out of the County's protected petitioning activity under Code of Civil Procedure section 425.16, it erroneously concluded that plaintiff had established a probability of prevailing on the merits of her whistleblower claim. Specifically, the County argues that it is immune from liability, that its investigation into plaintiffs conduct as well as its activities in the juvenile court were privileged. Additionally, the County argues that the court erred in determining that plaintiff had suffered an adverse employment action for purposes of establishing a claim of retaliation, and that the County had legitimate, non-retaliatory business reasons for its actions. Finally, the County argues that the court erroneously denied the motion to strike where plaintiff had unclean hands. We disagree.

a. Principles Relating to Anti-SLAPP Motions

SLAPP is an acronym for strategic lawsuit against public participation. ( Barrett v. Rosenthal (2006) 40 Cal.4th 33, 40, 51 Cal.Rptr.3d 55, 146 P.3d 510.) Code of Civil Procedure section 425.16, the anti-SLAPP statute, authorizes a trial court to strike a cause of action against a person arising from that person's exercise of the constitutional rights to free speech and petition for redress of grievances. The statute was enacted to discourage lawsuits brought primarily to chill the valid exercise of these constitutional rights. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 312, 46 Cal.Rptr.3d 606, 139 P.3d 2.) A proceeding under this section is referred to as a "special motion to strike."

"In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether the defendant's act underlying the plaintiff's cause of action itself was an act in furtherance of the right of petition or free speech." ( Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279, 55 Cal.Rptr.3d 544.) We employ a two-step process: we must determine whether the challenged cause of action is one arising from protected activity ( Cabral v. Martins (2009) 177 Cal.App.4th 471, 479, 99 Cal.Rptr.3d 394 ), and, if so, whether the plaintiff has demonstrated a probability of prevailing on the claim. ( Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448-449, 98 Cal.Rptr.3d 183.)

The party bringing the motion to strike has the initial burden of making a prima facie showing that the lawsuit qualifies as a SLAPP suit; if it does not, the motion to strike may be summarily denied without putting the plaintiff to the burden of establishing the probability of success on the merits. ( Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, 33 Cal.Rptr.2d 446, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, 124 Cal.Rptr.2d 507, 52 P.3d 685 ; see also Flatley v. Mauro, supra, 39 Cal.4th at p. 315, 46 Cal.Rptr.3d 606, 139 P.3d 2.) " ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ " ( Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 675, 105 Cal.Rptr.3d 98, quoting Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

We review an order granting or denying a special motion to...