Kapler v. City of
Filed 9/6/12 Kapler v. City of Alameda CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
DAVID
KAPLER,
Plaintiff and Respondent,
v.
CITY OF
ALAMEDA et al.,
Defendants and Appellants.
A133001
(Alameda
County
Super. Ct.
No. HG11570933)
Plaintiff and respondent David
Kapler resigned as the City of Alameda’s
fire chief after he was photographed filling a personal vehicle with city
gasoline and an administrative investigation resulted in a termination
decision. Kapler then sued the city and
several of its officials for breach of
contract and wrongful termination.
The city and its officials responded with a special motion to strike
under Code of Civil Procedure section 425.16
“anti-SLAPP” motion) claiming (a) their actions in investigating and taking
adverse action against Kapler are protected conduct under the statute and
(b) Kapler cannot establish a probability of prevailing on his
claims. The trial court denied the
motion on the first ground—ruling Kapler’s claims do not arise from any protected
conduct. We reverse, except as to one of
Kapler’s breach of contract theories. As
to all other theories and causes of action, we conclude the challenged conduct
is protected under the anti-SLAPP statute and Kapler has not shown a
probability of prevailing on the merits.
II. Factual and Procedural Background
A city resolution, effective June 25, 2006, established the position of
fire chief as an “unrepresented classification not included in any bargaining
group.” The city’s municipal code provides
the fire chief shall serve “at the pleasure of the City Manager.” (Alameda Muni. Code, § 2-30.1.)
The city hired Kapler as fire chief effective October 1, 2007. According to Kapler, the terms of his
employment were set forth in an August 17, 2007, letter from and oral
representations by defendant and appellant Debra Kurita, then the city manager.
The letter stated Kapler’s employment was “at will” and he would serve
at the “discretion of the City Manager.”
It promised a “post-retirement insurance benefit” available under an
existing memorandum of understanding, unless Kapler voluntarily resigned before
three years of service. The letter also
gave Kapler the choice between a city take-home vehicle, which he could use
only for city business, and a car allowance of $250 per month, to be put toward
the cost of using his personal vehicle for city business. Kurita orally promised him if he chose the
car allowance option, the city would outfit his personal vehicle with emergency
response equipment, and, as further reimbursement for city business, would
permit him to use gas from pumps at city-owned fire stations. By letter dated October 5, 2007, Kapler opted
for the car allowance.
Kapler claims he had the right to fuel not only his Honda Ridgeline
truck, which he mostly used for city business and which had been outfitted with
emergency response equipment, but also a later-acquired personal car, a blue
BMW, which he occasionally used for city business.
Firefighters witnessed Kapler filling up his BMW and snapped
photographs. These photographs made
their way to the president of the firefighters’ union, Domenick Weaver, who
forwarded them to the interim city manager, the mayor, and the press. The media went into overdrive; reprints of
the photos and articles about the city’s concerns about Kapler’s gas use
appeared in the San Francisco Chronicle, the Bay Citizen, the Island and
eventually in media outlets across the country.
The story continued to have legs throughout the
followed.
On September 1, 2010, then Interim City Manager Ann Marie Gallant wrote
to Kapler, placing him on paid administrative leave while the city investigated
his alleged unauthorized use of city gas.
An investigator then reviewed Kapler’s personnel file and city policy
documents, and interviewed Kapler and various present and former city
officials, including Kurita, who had made the employment offer. Kapler could not recall any discussions about
which particular vehicles he would be entitled to refuel at city pumps, and
claimed he had not violated the terms and conditions of his employment. Kurita and other city employees recalled
making it clear the gas benefit was limited to the vehicle the city would equip
for emergency use. The investigator
prepared a 14-page report dated September 15, 2010, summarizing his findings
and concluding Kapler fueled his BMW, the non-equipped car, without
authorization.
On September 17, 2010, the city informed Kapler by letter that it
planned to terminate his employment effective September 22, 2010. The letter stated Kapler was not entitled to
a “pre-termination Skelly meeting” because his employment was at-will, but
offered him a meeting with the interim city manager should he wish to respond
to the termination notice or the investigator’s report. The city and Kapler agreed to postpone the
meeting and termination so his attorney could have adequate time to prepare.
At the rescheduled meeting on September 27, 2010, Kapler denied his gas
use was unauthorized. He then proposed a
settlement, and he and the interim city manager signed an agreement. In exchange for Kapler’s resignation and
release of claims against the city, the city would pay him $75,000 and provide
postseparation insurance benefits for him, alone, but not his spouse. The settlement agreement’s preamble
reiterated Kapler was an “at-will” employee.
On November 3, 2010, the city council rejected the proposed settlement,
and the city proceeded with its plan to terminate Kapler on November 5,
2010. However, before the city
physically delivered its written termination notice, Kapler resigned on
November 5 in an effort to preserve what he claimed was a 40-year
exemplary employment record.
Convinced the stealth photos, and ensuing investigation and termination
process, were politically motivated in retaliation for fiscal decisions he had
made and which the firefighters’ union had opposed, Kapler filed an
administrative claim in anticipation of suing the city and various city
officials. After the city rejected his
claim, he filed a complaint against the city, Council Member Lena Tam, former
City Manager Kurita, and Interim City Manager Gallant on April 14, 2011. The complaint alleged nine causes of action.
The first was for breach of contract.
Kapler claimed the city had breached his employment agreement by (1)
terminating him without cause because he was entitled to use the city gas in
question, and (2) not paying postretirement benefits because he had completed three
years of service with the city. The
third cause of action, for breach of the implied covenant of good faith and
fair dealing, was based on the same alleged conduct.
The second cause of action was for intentional interference with an
economic relationship. Kapler claimed
city officials wrongfully instigated his termination without cause.
The fourth cause of action was for wrongful termination in violation of
the employment agreement and the Brown Act.
(Gov. Code, § 3500 et seq.)
The gas theft claim, according to Kapler, was a pretext for union allies
who disliked his policies. The fifth
cause of action, for constructive discharge, similarly alleged the city allowed
publication of false information about him in the media and then relied on
those false reports to wrongfully instigate termination proceedings.
The sixth and seventh causes of action, respectively, were for
intentional and negligent infliction of emotional distress. The eighth cause of action was for defamation
based on the city’s statements he had stolen gas. The ninth and final cause of action alleged
that the city had violated the Firefighters Procedural Bill of Rights
(“FFBOR”
, found in Government Code section 3250 et seq. Although the complaint is unclear, Kapler’srespondent’s brief on appeal clarifies the city allegedly violated the FFBOR by
not providing him an administrative appeal and by allowing the photographs to
be disseminated to the media.
On June 16, 2011, the city and individual defendants demurred to the
complaint, moved to strike the individual defendants, and moved to strike all
causes of action as a SLAPP (Strategic Lawsuit Against Public
Participation). On July 13, 2011, the
trial court ruled the demurer had some facial merit and, declining to consider
Kapler’s late-filed opposition, sustained it with leave to amend. The court then dropped the motion to strike
the individual defendants pending the filing of a first amended complaint.
On July 25, 2011, the trial court denied defendants’ anti-SLAPP motion,
ruling Kapler’s claims did not arise from defendants’ “exercise of the right to
petition or right of free speech” and therefore no conduct protected by the
anti-SLAPP statute was implicated. The
court did not reach the issue of whether Kapler had carried his burden of
demonstrating some probability of succeeding on the merits of his claims.
Kapler filed a first amended complaint on August 8, 2011. This pleading retained seven of the
originally pleaded causes for action:
breach of contract, breach of the covenant of good faith and fair
dealing, wrongful termination, constructive discharge, intentional infliction
of emotional distress, negligent infliction of emotional distress, and
violation of the FFBOR. Kapler later
filed an errata clarifying he had also dropped the individual defendants from
his suit and was proceeding only against the city.
On August 19, 2011, the city, Tam, and Kurita (but not Gallant) filed a
notice of appeal from the order denying the anti-SLAPP motion.
III. Discussion
“The Legislature enacted the anti-SLAPP statute to address the societal
ills caused by meritless lawsuits that are filed to chill the exercise of First
Amendment rights. [Citation.] The statute accomplishes this end by
providing a special procedure for striking meritless, chilling causes of action
at the earliest possible stages of litigation.”
name="_ftnref2" title="">[2] (Gerbosi
v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
443.) Government defendants, whether
entities or officials, may, like their private counterparts, invoke the
anti-SLAPP statute’s protection. (
Cal.4th 1, 18-19.)
“ ‘Under the statute, the court makes a two-step
determination: “First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity.
(§ 425.16, subd. (b)(1).) ‘A
defendant meets this burden by demonstrating that the act underlying the plaintiff’s
cause fits one of the categories spelled out in section 425.16, subdivision
(e)’ [citation]. If the court finds that
such a showing has been made, it must then determine whether the plaintiff has
demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1) . . . .)” [Citations.]
“Only a cause of action that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning
subject to being stricken under the statute.”
[Citation.]’ ” (
Cal.App.4th 604, 609.)
An appellate court reviews an order
granting or denying an anti-SLAPP motion de novo. (Flatley
v. Mauro (2006) 39 Cal.4th 299, 325-326; Gerbosi v. Gaims, Weil, West & Epstein, LLP,
is protected under the statute and whether the plaintiff has established a
reasonable probability of success on his or her claim. (Tutor-Saliba
Corp. v. Herrera, supra, at pp.
609-610.)
Protected Activity
The anti-SLAPP statute applies only to protected activity—that is,
activity “in furtherance of a person’s right of petition or free speech under
the United States Constitution or California Constitution in connection with a
public issue.” (§ 425.16, subds.
(b)(1), (e).) Such activity
includes: “(1) any written or oral
statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written
or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) any written or oral statement
or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd.
(e).)
“[T]he party moving to strike a cause of action has the initial burden
to show that the cause of action ‘aris[es] from [an] act . . . in furtherance
of the [moving party’s] right of petition or free speech.’ ” (Zamos
v. Stroud (2004) 32 Cal.4th 958, 965.)
“In determining whether a defendant sustained its initial burden of
proof, the court relies on the pleadings and declarations or affidavits.” (Brill
Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 329,
overruled on other grounds by Simpson
Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 25; § 425.16, subd.
(b); see also City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 79.)
“Our Supreme Court has recognized the anti-SLAPP statute should be
broadly construed [(Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60, fn. 3)] and that a
plaintiff cannot avoid operation of the anti-SLAPP statute by attempting,
through artifices of pleading, to characterize an action as a garden variety
tort or contract claim when in fact the claim is predicated on protected speech
or petitioning activity.” (
(2009) 177 Cal.App.4th 1264, 1271-1272.)
“The anti-SLAPP statute’s definitional focus is not the form of the
plaintiff’s cause of action but, rather, the defendant’s activity that gives
rise to his or her asserted liability—and whether that activity constitutes
protected speech or petitioning.” (
29 Cal.4th 82, 92, italics omitted.)
Kapler’s causes of action for constructive discharge, intentional and
negligent infliction of emotional distress, and violation of the FFBOR arise,
at least in part, from the city’s divulging to the media accusations of
misconduct and allegedly incriminating photographs. These causes of action, based at least in
part on alleged communications by the city and its employees with the media,
fall squarely within the ambit of the anti-SLAPP statute. They implicate statements “made in connection
with an issue under consideration or review by a legislative . . . body.” (§ 425.16, subd. (e)(2); see
52 Cal.App.4th 1036, 1041-1042, 1044 [reports on state investigatory audit were
protected speech under subdivision (e)(2)]; Maranatha
Corrections, LLC v. Department of Corrections and Rehabilitation (2008)
158 Cal.App.4th 1075, 1085 (Maranatha
Corrections) [dissemination of letter with misconduct allegations to press
was protected under subdivision (e)(2)].)
They also implicate statements “made in a . . . public forum in
connection with an issue of public interest.”
(§ 425.16, subd. (e)(3).) (
Cal.App.4th 1108, 1115-1116 [subdivision (e)(3) of “section 425.16 extends to
public employees who issue reports and comment on issues of public interest
relating to their official duties”].)
All of the causes of action, including the breach of contract cause of
action, also arise, at least in part, from the city’s investigation into whether
Kapler engaged in misconduct and its ultimate decision to terminate his
employment.
Statements made during investigations of government employee misconduct
are clearly protected under the anti-SLAPP statute. (Hansen
v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th
1537, 1544 [allegedly false accusations made during government body’s internal
investigation of misconduct protected under subdivision (e)(2) ];
177 Cal.App.4th 1049, 1061 [“Tichinin’s claims are based on the
investigative reports by the Council’s surveillance subcommittee reports, the
Council’s hearing, and subsequent resolution adopted by Council condemning
him”; conduct protected under subdivision (e)(2).]; cf. Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383,
1378-1379 [defamation and intentional infliction of emotional distress claims
based on city’s “investigation into Miller’s conduct in connection with his
public employment and its determination and report that he had engaged in
misconduct on the job constituting a conflict of interest as well as theft of
City property” arose from protected activity].)
Ultimate personnel actions, such as censure, demotion, or termination,
following such investigations are also imbued with anti-SLAPP protection. The cases of Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos), and Gallanis-Politis
v. Medina (2007) 152 Cal.App.4th 600 (Gallanis-Politis),
are illustrative. In
plaintiff’s civil rights cause of action against an administrator who denied
his workplace sexual harassment claims did not arise from protected
activity. (Vergos, supra, at
p. 1390.) The plaintiff’s cause of
action, said the court, was based on allegedly retaliatory “conduct and not on
the content of what she stated in any proceeding or in the exercise of the
right to petition.” (
in the complaint) are meaningless without a communication of the adverse
results.” (Ibid.) Thus, the
administrator’s conduct “as a hearing officer denying plaintiff’s grievances”
was protected conduct under subdivision (e)(2).
(Vergos, at pp. 1390, 1399.)
Gallanis-Politis also involved a retaliation claim.
The plaintiff alleged county
employees refused to process a request for bonus pay after commencing an
investigation undertaken for the sole purpose of blocking the pay. (Gallanis-Politis, supra, 152 Cal.App.4th
at p. 605.) The trial court denied a
motion to strike, assuming the anti-SLAPP statute applied but concluding the
plaintiff had demonstrated a reasonable probability of prevailing. (Id.
at pp. 607-608.) The Court of Appeal
agreed the anti-SLAPP statute applied, explaining the “fundamental basis” for
the plaintiff’s claim was “the allegedly pretextual investigation . . . and the
allegedly false report” which led to a recommendation that the bonus pay
request was unfounded. (
of substance exist[ed] upon which to base a retaliation claim against . . .
.” (Id.
at p. 611.) As had the court in
court focused on the inexorable progression from report or suspicion of
wrongdoing, to investigation and report, and finally administrative
action. The appellate court thus
concluded the plaintiff’s retaliation claim arose from protected activity under
subdivision (e)(2). (See also
Hospital Dist. (2012) 204 Cal.App.4th 65 [where peer review process
prompted a hospital to terminate agreement with disciplined physician,
termination was protected conduct;
Levy v. City of Santa Monica (2004)
114 Cal.App.4th 1252 [cause of action against city and city councilman seeking
declaratory judgment that child’s playhouse conformed with zoning ordinance was
subject to special motion to strike because city inspector’s noncompliance
finding arose from concerned citizen’s petitioning activity and city’s
investigation in response thereto].)
The instant case is of the same milieu as the cases just
discussed. The city’s decision to
terminate Kapler was the final step in a lengthy, public investigation of
alleged misconduct. The investigation
and termination decision—itself memorialized in writing—are protected under
subdivision (e)(2) as “written or oral statement[s] or writing[s] made in
connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by
law.” (§ 425.16, subd. (e)(2);
The investigation and termination decision in this case are also
protected conduct under subdivision (e)(3), which protects statements “made in
a place open to the public or a public forum in connection with an issue of
public interest,” and subdivision (e)(4), which protects “conduct in
furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an
issue of public interest.”
(§ 425.16, subd. (e)(3)-(4).)
Kapler’s alleged misuse of city gas, a public asset, was a public issue,
and the resulting termination decision was discussed in public fora, namely in
city proceedings and in the press. (See
[disclosure to local paper of an accusation of public funds misappropriation
was protected conduct].)
We reject Kapler’s assertion that his alleged misconduct and the city’s
investigation and disciplinary actions were not “issue[s] of public interest”
under subdivision (e)(3) or “public issue[s]” under subdivision (e)(4). Misappropriation of public property is a
classic public issue under the anti-SLAPP statute. (See Maranatha
Corrections, supra, 158
Cal.App.4th at p. 1086 [the “government’s business is the people’s business and
. . . California’s citizens have a right to full disclosure of all information
which affects the public fisc”]; Copley
Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 376 [“the
public has a legitimate interest in knowing how public funds are spent and how
claims (formal or informal) against public entities are settled”];
154 Cal.App.4th 97, 102-103, 111 [defamation action based on statements
published in newspaper regarding university’s reasons for terminating football
coach was subject to an anti-SLAPP motion under subdivision (e)(3)].)
Several of Kapler’s causes of action may arise, in part, from
unprotected conduct—for example, the breach of contract cause of action is
based in part on the claim the city has wrongfully denied Kapler
cause of action is based in part of the claim the city denied him certain
administrative procedures. However, that
does not render the anti-SLAPP statute inapplicable. As we have discussed, each cause of action
also arises, in part, from protected conduct.
“Mixed” causes of action are subject to an anti-SLAPP motion so long as
“ ‘at least one of the underlying acts is protected conduct.’ ” (Haight
Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal.App.4th 1539, 1551.) When
a cause of action alleges multiple, independent bases for relief, as do
Kapler’s breach of contract and FFBOR claims, the anti-SLAPP statute applies if
any of the alleged bases arises from protected conduct. (Ibid.;
Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1187 (
In sum, all of Kapler’s
causes of action are based, in whole or in part, on protected activity and
therefore all come within the ambit of the anti-SLAPP statute. The trial court accordingly erred in denying
defendants’ anti-SLAPP motion on the ground they failed to show that the anti-SLAPP
statute applies.
Probability
of Prevailing on the Merits
When, as here, a trial court erroneously denies an anti-SLAPP motion on
the ground the plaintiff’s causes of action do not arise from protected
activity, an appellate court has two options.
It can remand the case to the trial court to address, in the first
instance, whether the plaintiff has carried his or her burden of establishing a
“probability of prevailing” on the merits.
(See, e.g., Tuszynska v.
Cunningham (2011) 199 Cal.App.4th 257, 267.) Or, the Court of Appeal can, itself, in the
interests of judicial efficiency, examine the plaintiff’s merits showing and
decide whether he or she has demonstrated a probability of prevailing on the
challenged causes of action. (See, e.g.,
Silverado Modjeska Recreation & Park
Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 312;
decide the issue ourselves, since it is subject to independent review”].)
Given the heavy burdens now confronting our trial courts, we turn directly
to the second inquiry under the anti-SLAPP statute—whether Kapler has
demonstrated a “probability of prevailing” on his causes of action. In this regard, we apply a
“summary-judgment-like” test (Taus v.
Loftus (2007) 40 Cal.4th 683, 714), accepting as true the evidence
favorable to the plaintiff and evaluating the defendant’s evidence only to
determine whether it defeats the plaintiff’s evidence as a matter of law. (Wilcox
v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds
in Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
The evidence put forward at this stage must be admissible; even
allegations in a verified complaint are insufficient. (Wallace,
supra, 196 Cal.App.4th at p. 1212.)
“In addition to considering the substantive merits of the plaintiff’s
claims,” the court “must also consider all available defenses to the claims . .
. .” (No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th
1018, 1026.)
When a cause of action states multiple grounds for relief,
“the plaintiff may satisfy its obligation in the second prong by showing a
probability of prevailing on any” one of those grounds, regardless of whether
the ground arises from protected or unprotected conduct. (
this rule, but noting it is the law as set forth by our Supreme Court].)
Contract
“[T]erms and conditions of
public employment, unlike those of private employment, generally are established
by statute or other comparable
enactment (e.g., charter provision or ordinance) rather than by contract.” (White
v. Davis (2003) 30 Cal.4th 528, 564.)
Thus, insofar as “the duration of such employment is concerned, no
employee has a vested contractual right
to continue in employment beyond the time or contrary to the terms and
conditions fixed by law.” (
Cal.3d 808, 813-814; see also Hill v.
City of Long Beach (1995) 33 Cal.App.4th 1684, 1689 [foreclosing
claims for breach of contract and breach of the implied covenant].)
“Nonetheless, a long line of California cases establishes that with
regard to at least certain terms or conditions of employment that are created
by statute, an employee who performs services while such a statutory provision
is in effect obtains a right, protected by the contract clause, to require the
public employer to comply with the prescribed condition.” (White
v. Davis, supra, 30 Cal.4th at
pp. 564-565, italics omitted.) Thus, our
Supreme Court has “caution[ed]” that its “ ‘often quoted language that public
employment is not held by contract’ has limited force where . . . the parties
are legally authorized to enter (and have in fact entered) into bilateral
contracts to govern the employment relationship.” (Retired
Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52
Cal.4th 1171, 1182.) In
“under California law, a vested right to health benefits for retired county
employees can be implied under certain circumstances from a county ordinance or
resolution.” (Id. at 1194.) It further
endorsed an appellate court’s statement that “ ‘[w]hen a public employer
chooses instead to enter into a written contract with its
employee (assuming the contract is not contrary to public policy), it cannot
later deny the employee the means to enforce that agreement.’ ” (Id.
at p. 1182, quoting Shaw v. Regents of University of California (1997)
58 Cal.App.4th 44, 55.)
Kapler’s contract claims are based on two purported breaches of his
employment agreement: (1) seeking to
terminate him without cause, and (2) refusing to pay postretirement benefits even though he completed
three years of service with the city.
Kapler has not shown a probability of succeeding on his breach of
contract claim based on his termination.
The city’s municipal code provides the fire chief shall serve “at the
pleasure of the City Manager.” (Alameda
Muni. Code, § 2-30.1.) A 2006 city
resolution stated the position of fire chief was an “unrepresented
classification not included in any bargaining group.” The August 17 letter awarding Kapler the fire
chief job also stated his employment was “at-will” and he would serve at the
“discretion of the City Manager.” Even
the failed settlement agreement with the city, which Kapler signed, stated he
was an “at-will” employee. Kapler has
produced no admissible evidence suggesting he was something other than an
at-will employee or that his employment contract afforded him any protection
from termination without cause.
name="_ftnref5" title="">[5] Therefore, he has not demonstrated a
probability of prevailing on this aspect of his contract claim.
However, Kapler’s breach of contract claim based on withholding
post-retirement insurance benefits passes the minimal merits showing required
under the anti-SLAPP statute. The August
17, 2007, letter hiring Kapler stated he was entitled to benefits “as described
in paragraph 3 of Section 13.1 of the 2001-2008 Fire Management Association MOU
unless [he] voluntarily resign[ed] or retire[d] prior to the third anniversary
of the date of commencement of employment with the City . . . .” This assurance is not, on its face at least,
inconsistent with Article III of the city’s charter, which authorizes “a
retirement, pension, and insurance system for City officers and
employees.” Accordingly, based on the
current state of the record, Kapler has met his burden of showing a probability
of success on this particular breach of contract claim.
Employees Assn. of Orange County, Inc. v. County of Orange, supra, 52
Cal.4th at p. 1182.)
Tort Claims
Kapler alleges four tort claims against the city and individual
defendants: wrongful termination, constructive discharge, intentional
infliction of emotional distress, and negligent infliction of emotional
distress. Defendants claim immunity from
these claims under the Government Claims Act.
The Government Claims Act, Government Code section 810 et seq.,
establishes the limits of common law liability for public entities. In general, there is no such liability. “Except as otherwise provided by
statute: (a) A public entity is not
liable for an injury, whether such injury arises out of an act or
omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a); see
California (2008) 44 Cal.4th 876, 899 [statute abolishes common law tort
liability].)
Kapler contends, however,
that two statutory exceptions to governmental immunity allow his tort claims to
proceed, namely Government Code sections 815.2 and 815.6.
Government Code section 815.2
subjects public entities to a form of vicarious liability, stating public
entities are “liable for injury proximately caused by an act or omission of an
employee of the public entity within the scope of his employment if the act or
omission would, apart from this section, have given rise to a cause of action
against that employee or his personal representative.” (Gov. Code, § 815.2, subd. (a).) However, no such vicarious liability arises
where the public employee is immune from direct liability. (Id.,
subd. (b).)
The city and individual
defendants therefore direct our attention to Government Code section 821.6,
which provides: “A public employee is
not liable for injury caused by his instituting or prosecuting any judicial or
administrative proceeding within the scope of his employment, even if he acts
maliciously and without probable cause.”
(Gov. Code, § 821.6.) “ ‘The
policy behind section 821.6 is to encourage fearless performance of official
duties. [Citations.] State officers and employees are encouraged
to investigate and prosecute matters within their purview without fear of
reprisal from the person or entity harmed thereby. Protection is provided even when official
action is taken maliciously and without probable cause.’ ” (Paterson
v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1404-1405
[applying immunity to an internal police misconduct investigation giving rise
to claims for intentional infliction of emotional distress and negligent
supervision]; see also Shoemaker v. Myers
(1992) 2 Cal.App.4th 1407, 1424 [immunity applies to claim of wrongful
termination in violation of public policy].)
“[S]ection 821.6 extends to actions taken in preparation for formal
proceedings, including investigation,” (Patterson,
at p. 1405) and also to “[a]cts undertaken in the course of an
investigation, including press releases reporting the progress or results of
the investigation.” (
Cal.App.4th 1033, 1048.)
Thus, Government Code section
821.6 forecloses direct liability on the part of the city’s employees in
investigating and disciplining Kapler and, as a result, the vicarious liability
provisions of Government Code section 815.2 do not save Kapler tort causes of
action. (See, e.g., Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047,
1064-1065 [“since its employees were immune, the county was also
immune”].) Additionally, section 815.2,
which only provides for vicarious
liability based on employee’s torts, does not save his wrongful termination and
constructive discharge causes, which are, by definition, direct claims against the city alone and not actions for which city
employees could be liable. (
California (2008) 44 Cal.4th 876, 900-901 [an “action for wrongful
discharge can only be asserted against an
employer” and section 815.2 does not make the employer liable for this
action].)
Government Code section
815.6, in turn, subjects public entities to direct liability when the “entity
is under a mandatory duty imposed by an enactment that is designed to protect
against the risk of a particular kind of injury” and its failure to discharge that
duty, or to exercise reasonable diligence to discharge it, proximately causes
that kind of injury. (Gov. Code, §
815.6.) (See generally
27 Cal.4th 1112, 1127 [“The Tort Claims Act draws a clear distinction
between the liability of a public entity based on its own conduct, and the
liability arising from the conduct of a public employee.”].)
Kapler contends the city
breached mandatory duties under the FFBOR and injured him by not providing him
an administrative appeal and by facilitating the publication of his photograph
in the media. These alleged injuries do
not create liability under Government Code section 815.6. As our Supreme Court has explained,
section 815.6 applies only to an injury of
“ ‘such nature that it would be actionable if inflicted by a private
person.’ ” (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 968 (Aubry), quoting Gov. Code, § 810.8 [defining injury], italics
omitted.) In Aubry, the plaintiff alleged the hospital district’s failure to
perform a mandatory duty resulted in workers receiving “less than the
prevailing wage while engaged on a public work.” (Aubry,
supra, at p. 968, italics omitted.)
The court continued: “This injury
is one which by its very nature could not exist in an action between private
persons; if the defendant awarding body were not a public entity, there would
be no injury. As a result, the injury
alleged in this case is not included within the Tort Claims Act’s definition of
injury.” (Ibid.)
“Under Aubry, we therefore must determine whether the ‘injuries’ ” Kapler
alleges “would be actionable against a defendant which was not a public
entity.” (Forbes v. County of San Bernardino (2002) 101 Cal.App.4th 48,
55.) The FFBOR provisions Kapler cites
create obligations for and remedies against only an “employing department” or
“licensing or certifying agency.” (Gov.
Code, § 3260, subd. (a) [“It shall be unlawful for any employing
department or licensing or certifying agency to deny or refuse to any firefighter
the rights and protections guaranteed by this chapter.”].) Thus, a FFBOR violation “by its very nature
could not exist in an action between private persons.” (Aubry, supra, 2 Cal.4th at p. 968.) Accordingly, section 815.6 is not an avenue by
which Kapler can pursue his tort claims against the city on the basis of
supposed mandatory duties imposed by the FFBOR.
at p. 968.)
Statutory Claim
We alternatively consider
Kapler’s FFBOR (Gov. Code, §§ 3250-3262) cause of action as strictly a statutory
claim. The FFBOR became effective on
January 1, 2008. (Stats. 2007, ch. 591, § 2.)
The Legislative Counsel’s Digest described the legislation as follows: “ ‘This bill would enact the
Firefighters Procedural Bill of Rights Act to prescribe various rights of
firefighters, defined as any firefighter employed by a public agency, including
a firefighter who is a paramedic or emergency medical technician, with
specified exceptions. The bill would
prescribe rights related to, among others, political activity, interrogation,
punitive action, and administrative appeals, with specified requirements
imposed upon the employing agency and the imposition of a civil penalty for a
violation thereof.’ ” (International
Assn. of Firefighters Local Union 230 v. City of San Jose (2011) 195
Cal.App.4th 1179, 1187-1188.) The FFBOR was enacted “to mirror the Public
Safety Officers Procedural Bill of Rights Act that is applicable to public
safety officers.” (Sen. Floor Com., Bill
Analysis Rep. of Assem. Bill No. 220 (2007-2008 Reg. Sess.) as amended July 2,
2007.)
The FFBOR gives aggrieved
firefighters a private right of action in superior court. (Gov. Code, § 3260, subd. (b).) The court may render injunctive relief to
remedy a FFBOR violation. (
addition . . . upon a finding by a superior court that a fire department, its
employees, agents, or assigns, with respect to acts taken within the scope of
employment, maliciously violated any provision of this chapter with the intent
to injure the firefighter, the fire department shall, for each and every
violation, be liable for a civil penalty not to exceed twenty-five thousand
dollars ($25,000) to be awarded to the firefighter whose right or protection
was denied and for reasonable attorney’s fees as may be determined by the
court.” (Id., subd. (d).)
As a preliminary matter, we reject the
city’s only argument on the merits of Kapler’s FFBOR claims—that his use of gas
was outside his official duties and therefore he had no rights under the
FFBOR. It is true “[t]he rights and
protections described [in the FFBOR] shall only apply to a firefighter during
events and circumstances involving the performance of his or her official
duties.” (Gov. Code, § 3262.) But this cannot reasonably be read to divest
a firefighter of the procedural protections afforded by the FFBOR during
proceedings to resolve whether or not conduct was authorized and within the
scope of the employee’s official duties.
(Cf. Paterson v. City of Los
Angeles, supra,
[applying Peace Officers’ Bill of Rights to investigation of fraudulent sick
leave use, though the Peace Officers’ Bill of Rights does not have an
equivalent to section 3262].)
Kapler alleges two violations
of the FFBOR. First, he complains the
city never offered him an administrative appeal in violation of section 3254,
subdivision (c), which states: “A fire
chief shall not be removed by a public agency or appointing authority without
providing that person with written notice, the reason or reasons for removal,
and an opportunity for administrative appeal.”
being represented by counsel, that he ever asked the city to provide him an
administrative appeal during the months leading up to the city’s final decision
to terminate him. We cannot endorse a
rule allowing a firefighter to remain silent throughout the duration of
disciplinary proceedings, only to claim additional procedural protections long
after the fact and for the first time in a lawsuit. (Cf. Murray
v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 869 [“Murray admittedly
failed to invoke, and thereby forfeited, his right to . . . a formal adversarial hearing of record”
before an administrative law judge, as was offered to him by the Federal
whistleblower statute.].) Furthermore,
Kapler’s preemptive act of resigning to preserve his assertedly exemplary
career record is inconsistent with an administrative appeal under the FFBOR.
Kapler also complains the
city allowed photographs of him using city gas to reach the media in violation
of Government Code section 3253, subdivision (e)(2). This provision states: “When any firefighter is under investigation and subjected to interrogation by his or her
commanding officer, or any other member designated by the employing department
or licensing or certifying agency, that could lead to punitive action, the
interrogation shall be conducted under the following conditions: [¶] . . . [¶] The
employer shall not cause the firefighter under interrogation to be subjected to
visits by the press or news media without his or her express written consent
free of duress, and the firefighter’s photograph, home address, telephone
number, or other contact information shall not be given to the press or news
media without his or her express written consent.” (Gov. Code, § 3253, subd. (e)(2),
italics added.)
Although Kapler has sued the
city, his “employer,” for disseminating the photographs, the record evidence
establishes that the only person who gave photographs to the press was Weaver,
the firefighters’ union president, who was neither Kapler’s “commanding
officer” nor a designee of the fire department for investigating disciplinary
matters. There is no evidence the city
otherwise disseminated or facilitated Weaver’s dissemination of the
photographs. When Weaver publicized the
photographs, Kapler was not yet “under investigation” by the city—rather, the
photographs led to the investigation.
Thus, the protections of Government Code section 3253 had not yet
attached.
title="">[11] (See Gilbert
v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1287 [protections of
similar Government Code section 3303 of Peace Officers’ Bill of Rights
inapplicable when prerequisites of an “investigation” not present];
Dept. (2003) 106 Cal.App.4th 1388, 1399 [same].)
Accordingly, Kapler cannot
show a probability of prevailing on his FFBOR cause of action.
Dropped
Claims
Finally, we address relics
from Kapler’s original complaint: (1)
causes of action for defamation and intentional interference with an economic relationship, and (2) the
naming of individual defendants in most causes of action. Kapler dropped these two causes of action and
the individual defendants when he filed his first amended complaint after the
trial court sustained the defendant’s demurrer with leave to amend.
We typically analyze an anti-SLAPP
motion by reference to the complaint actually challenged in the trial court—in
this case, the original complaint, not the subsequently filed first amended
complaint. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203
Cal.App.4th 450, 463.) Further, when an
amended complaint eliminates a cause of action challenged by an anti-SLAPP
motion, or even drops the defendant who filed the anti-SLAPP motion, the
anti-SLAPP motion does not become moot.
An aggrieved defendant is still entitled to the relief an anti-SLAPP
motion can provide, namely an award of attorney fees. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1365 [a
defendant had standing to appeal denial of anti-SLAPP motion even though
plaintiff dismissed it from case before appeal].)
Accordingly,
defendants’ appeal is not moot as to either the dropped defamation and
intentional interference claims or the claims against the individual city
officials. For all the reasons we have
discussed, Kapler has not carried his burden of showing any probability of
succeeding on the two tort claims. Nor
has he carried his burden as to any other claim asserted against the individual
defendants, except as to his breach of contract claim based on an alleged
failure to provide him with post-resignation benefits “as described in
paragraph 3 of Section 13.1 of the 2001-2008 Fire Management Association MOU.”
Attorney Fees
A
party who succeeds on an anti-SLAPP motion is entitled to an award of
reasonable attorney fees.
(§ 425.16, subd. (c).)
Partial success may militate a reduced fee award. (See Mann
v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 341.) Here, the defendants have prevailed on the
lion’s share of their special motion to strike and therefore are entitled to a
fee award for work in both the trial court and on appeal. (See Carpenter
v. Jack In The Box Corp. (2007) 151 Cal.App.4th 454, 461.) The amount of fees, and any reduction for
partial success, is to be determined by the trial court on remand, pursuant to
noticed motion. (See
The order denying defendants’
special motion to strike is reversed, except as to Kapler’s breach of contract
claim (his first cause of action) for alleged deprivation of postresignation benefits. Defendants are awarded costs on appeal. They are also
entitled to
an award of reasonable attorney fees, the amount of which is to be determined
by the trial court pursuant to noticed motion.
_________________________
Banke,
J.
We concur:
_________________________
Marchiano, P. J.
_________________________
Dondero, J.
Code of Civil Procedure unless otherwise indicated.
from any act of that person in furtherance of the person’s right of petition or
free speech under the United States Constitution or the California Constitution
in connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b) (1).)
