Bryan Blue v. California Office of the Inspector General

This appeal challenges the trial court’s partial denial of a special motion to strike

pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute,1 directed



1 Undesignated statutory references are to the Code of Civil Procedure. SLAPP is

an acronym for “strategic lawsuit against public participation.”

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at causes of action arising out of the manner in which defendants, the Office of the

Inspector General (OIG) and Robert A. Barton, in his capacity as Inspector General,

conducted interviews with five correctional officers who previously worked at High

Desert State Prison. The interviews were conducted as part of an investigation into that

institution’s “practices . . . with respect to (1) excessive use of force against inmates,

(2) internal reviews of incidents involving the excessive use of force against inmates,

and (3) protection of inmates from assault and harm by others.” As relevant to this

appeal, these individual correctional officers and the California Correctional Peace

Officers Association (CCPOA) alleged in their first and second causes of action that

defendants violated Penal Code section 6126.5 and Government Code section 3300 et

seq. (the Public Safety Officers Procedural Bill of Rights or the Act) by refusing the

officers’ requests to be represented during the interviews. The trial court denied the antiSLAPP

motion as to these causes of action, concluding (1) defendants carried their

threshold burden of demonstrating the gravamen of these causes of action arose from

protected activity, but (2) plaintiffs established a probability of prevailing on the merits of

these claims.2



We agree defendants carried their burden on the threshold issue, but conclude

plaintiffs failed to establish a probability of prevailing on the merits of these causes of

action. We therefore reverse the portion of the trial court’s order denying the antiSLAPP

motion with respect to the first and second causes of action and remand the



2 The trial court granted defendants’ anti-SLAPP motion with respect to plaintiffs’

third and fourth causes of action alleging violations of Penal Code sections 6127.3 and

6127.4, governing the Inspector General’s issuance and enforcement of subpoenas,

concluding plaintiffs were unable to establish a probability of prevailing on the merits of

these causes of action. We mention these causes of action no further.

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matter to the trial court with directions to enter a new order granting the motion in its

entirety and dismissing the complaint.

BACKGROUND

Oversight Authority of the OIG

The Legislature created the OIG to oversee the Department of Corrections and

Rehabilitation (CDCR). (Pen. Code, § 6125 et seq.) Penal Code section 6126 provides

in relevant part:

“(a) The Inspector General shall be responsible for contemporaneous oversight of

internal affairs investigations and the disciplinary process of the [CDCR], pursuant to

Section 6133 under policies to be developed by the Inspector General.

“(b) When requested by the Governor, the Senate Committee on Rules, or the

Speaker of the Assembly, the Inspector General shall review policies, practices, and

procedures of the department. The Inspector General, under policies developed by the

Inspector General, may recommend that the Governor, the Senate Committee on Rules,

or the Speaker of the Assembly request a review of a specific departmental policy,

practice, or procedure that raises a significant correctional issue relevant to the

effectiveness of the department. When exigent circumstances of unsafe or life

threatening situations arise involving inmates, wards, parolees, or staff, the Inspector

General may, by whatever means is most expeditious, notify the Governor, Senate

Committee on Rules, or the Speaker of the Assembly.

“(c)(1) Upon completion of a review, the Inspector General shall prepare a

complete written report, which shall be held as confidential and disclosed in confidence,

along with all underlying materials the Inspector General deems appropriate, to the

requesting entity in subdivision (b) and the appropriate law enforcement agency.

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“(2) The Inspector General shall also prepare a public report. When necessary, the

public report shall differ from the complete written report in the respect that the Inspector

General shall have the discretion to redact or otherwise protect the names of individuals,

specific locations, or other facts that, if not redacted, might hinder prosecution related to

the review, or where disclosure of the information is otherwise prohibited by law, and to

decline to produce any of the underlying materials. Copies of public reports shall be

posted on the [OIG]’s Internet Web site.” (Pen. Code, § 6126, subds. (a)-(c).)

As explained by Inspector General Barton in his declaration in support of the antiSLAPP

motion, the OIG initially possessed the authority to conduct “criminal and

administrative investigations into allegations of CDCR employee misconduct.” The

Legislature removed this authority effective June 30, 2011 (compare Stats. 2009, ch. 35,

§ 14 with Stats. 2011, ch. 36, § 36), except in two circumstances: (1) “Upon receiving a

complaint of retaliation from an employee against a member of management at the

[CDCR], the Inspector General shall commence an inquiry into the complaint and

conduct a formal investigation where a legally cognizable cause of action is presented”

(Pen. Code, § 6129, subd. (b)(1)); and (2) “The [OIG] shall investigate reports of the

mishandling of incidents of sexual abuse, while maintaining the confidentiality of the

victims of sexual abuse, if requested by the victim” (Pen. Code, § 2641, subd. (e)).

Outside these specific contexts, not applicable in this case, the OIG “has no authority to

open investigations into CDCR employees.” That authority belongs to CDCR’s Office of

Internal Affairs (OIA), with the OIG providing public oversight pursuant to Penal Code

section 6133.3

(Pen. Code, § 6126, subd. (a).)



3 This section provides in full: “(a) The [OIG] shall be responsible for

contemporaneous public oversight of the [CDCR] investigations conducted by the [OIA].

To facilitate oversight, the [OIG] shall have staff physically colocated with the [OIA],

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Review of High Desert State Prison

On June 25, 2015, in accordance with Penal Code section 6126, subdivision (b),

set forth above, the Senate Rules Committee issued a letter to the inspector general

authorizing the OIG “to review the practices at High Desert State Prison . . . with respect

to (1) excessive use of force against inmates, (2) internal reviews of incidents involving

the excessive use of force against inmates, and (3) protection of inmates from assault and

harm by others.” The letter requested the inspector general to provide the Committee

with “a written report detailing the results of [the] review” and also requested the

inspector general “consult with, and recommend appropriate actions to, [OIA] regarding

[the] review.” As the letter explained, the Committee authorized the review because of

various allegations “rais[ing] concern about whether some members of [High Desert



within a reasonable timeframe and without any undue delays. The [OIG] shall also be

responsible for advising the public regarding the adequacy of each investigation, and

whether discipline of the subject of the investigation is warranted. [OIG] shall have

discretion to provide public oversight of other [CDCR] personnel investigations as

needed. [¶] (b)(1) The [OIG] shall issue regular reports, no less than annually, to the

Governor and the Legislature summarizing its recommendations concerning its oversight

of the [CDCR] allegations of internal misconduct and use of force. The [OIG] shall also

issue regular reports, no less than semiannually, summarizing its oversight of [OIA]

investigations pursuant to subdivision (a). The reports shall include, but not be limited

to, all of the following: [¶] (A) Data on the number, type, and disposition of complaints

made against correctional officers and staff. [¶] (B) A synopsis of each matter reviewed

by the [OIG]. [¶] (C) An assessment of the quality of the investigation, the

appropriateness of any disciplinary charges, the [OIG’s] recommendations regarding the

disposition in the case and when founded, the level of discipline afforded, and the degree

to which the agency’s authorities agreed with the [OIG] recommendations regarding

disposition and level of discipline. [¶] (D) The report of any settlement and whether the

[OIG] concurred with the settlement. [¶] (E) The extent to which any discipline was

modified after imposition. [¶] (2) The reports shall be in a form that does not identify the

agency employees involved in the alleged misconduct. [¶] (3) The reports shall be posted

on the Inspector General’s Internet Web site and otherwise made available to the public

upon their release to the Governor and the Legislature.” (Pen. Code, § 6133.)

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State Prison] staff are engaged in a pattern or practice of using inappropriate and

excessive force against inmates and whether there is adequate protection of inmates from

harm at the prison.” After providing a description of four such allegations, including one

alleging “a mobility-impaired inmate” was “assaulted by staff, and consequently required

outside medical treatment, for refusing to remove and relinquish footwear worn to assist

with his medical condition,” the letter continued: “In addition to the specific incidents

noted above, there have been general allegations asserted that some members of custodial

staff refer to inmates as ‘sodomites’ or sex offenders in the presence of other inmates and

disclosed inmates’ commitment offenses to others[,] actions which would place inmates

at risk of harm from other inmates.”

Upon receiving this letter, Inspector General Barton met with Chief Deputy

Inspector General Roy Wesley and other subordinates to plan the review to be undertaken

by the OIG. As both Barton and Wesley explained in their declarations, neither

considered the Senate’s request to call for investigation of specific allegations of

employee misconduct, nor would the OIG have statutory authority to conduct such an

investigation had that been requested. Both considered the request to call for a broader

inquiry into policies and practices in place at High Desert State Prison and “overall staff

culture and attitudes” at the prison. Because the latter “could not be gleaned from a

review of CDCR’s records,” they decided to interview former High Desert State Prison

staff. As Wesley explained: “We believed current [High Desert State Prison] employees

would be reluctant to speak openly with OIG staff out of fear that they would be

subjected to retaliation for cooperating with the review. We were also aware that the

[OIA] was conducting investigations at [High Desert State Prison] and did not want to

interview employees who could be interviewed as potential witnesses in those

investigations.” Wesley directed a subordinate to identify former employees at the

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prison, particularly those who worked in the prison’s “ ‘B’ Facility, as this is where the

majority of the sex offenders and inmates with disabilities were housed.”

Thereafter, between June 2015 and December 2015, OIG’s Special Assistant

Inspectors General (SAIG) “monitored approximately 19 investigations of [High Desert

State Prison] staff that were being conducted by the [OIA]” while the office’s Deputy

Inspectors General “performed all other work in connection with the review of [the

prison], which included reviewing CDCR policies, [High Desert State Prison] policies,

use-of-force incident reports, inmate complaints, inmate appeals, court documents, and

various other CDCR records.” The Deputy Inspectors General (DIG) also conducted

interviews with former inmates at the prison and former staff members who had

transferred to another CDCR prison or were no longer state employees. As Chief Deputy

Inspector General Wesley explained: “Because the SAIGs were familiar with the

allegations involved in the active OIA investigations they were monitoring and because

OIG’s review was not intended to uncover staff misconduct, I did not want the SAIGs to

conduct any employee or inmate interviews. On the other hand, because the DIGs would

not have any knowledge pertaining to these active investigations, I assigned them the task

of performing these interviews.” Inspector General Barton also spoke to the secretary of

CDCR and informed him the former High Desert State Prison employees to be

interviewed were not considered “subjects of an investigation” and “would not be asked

questions about ongoing investigations.”

Both Inspector General Barton and Chief Deputy Inspector General Wesley

considered the former staff member interviews to be confidential. (See Pen. Code, §

6126.5, subd. (d) [“Inspector General may require any employee of the [CDCR] to be

interviewed on a confidential basis”]; id., § 6126.4 [“misdemeanor for the Inspector

General or any employee or former employee of the Inspector General to divulge or make

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known in any manner not expressly permitted by law to any person not employed by the

Inspector General any particulars of any record, document, or information the disclosure

of which is restricted by law from release to the public”].) Indeed, the OIG denied a

request from an OIA senior special agent for copies of the former staff member

interviews.

At the conclusion of the review, on December 16, 2015, the OIG issued a report

summarizing its review of High Desert State Prison and making policy recommendations.

As Inspector General Barton explained: “The information the OIG obtained during its

interviews of staff and inmates served as the basis for the OIG to make the policy

recommendations on page 55 of its report that CDCR provide staff with sensitivity

training, mindfulness and wellness programs, and programs to recognize and address

implicit bias; diversify the workforce at [High Desert State Prison]; increase inmate

programming at [the prison]; and take steps to prevent staff from serving in high stress

assignments for extended periods of time. [Citation.] The report does not contain a

single statement indicating any of the plaintiffs had engaged in or were suspected of

engaging in misconduct. The report does not include any of the plaintiffs’ names or

identify a single person interviewed during the course of the review.” Our review of the

report confirms these statements to be accurate.

Plaintiffs’ Lawsuit

This lawsuit arises from the manner in which five former High Desert State Prison

employees were interviewed in connection with the OIG review described above. More

specifically, these employees (Bryan Blue, Jason Hastey, Steven Oschner, Arthur Tovar,

and James McCloughan), who still worked for CDCR but at other correctional facilities,

and the CCPOA alleged in two causes of action that the OIG and Inspector General

Barton violated Penal Code section 6126.5 and the Public Safety Officers Procedural Bill

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of Rights by refusing each employee’s request to be represented during the interviews.

We decline to set forth the circumstances of the interviews in any detail. For our

purposes, it will suffice to note that each employee requested representation during the

interview and the DIG who conducted each interview denied the request and informed

the employee he was not under investigation and nothing said would be used to pursue an

investigation or recommend an investigation be opened.

Anti-SLAPP Motion

Defendants filed an anti-SLAPP motion arguing plaintiffs’ causes of action arose

from protected activity under the anti-SLAPP statute because they challenged defendants’

communicative conduct, i.e., denial of plaintiffs’ requests for representation, “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)), i.e., the Senate-directed review of practices at High Desert State Prison.

Defendants also argued plaintiffs’ causes of action arose from protected activity because

the challenged conduct amounted to “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” (id., subd. (e)(4)). This is so, argued

defendants, because publication of a report on an issue of public interest, such as OIG’s

review of practices related to claims of prisoner abuse at High Desert State Prison, are

protected by the constitutional rights of petition and free speech, and “the actions the OIG

took during its review all qualify as conduct taken in furtherance of publishing [that]

report.” (Italics added.)

With respect to the second stage of the anti-SLAPP analysis, defendants argued

plaintiffs could not demonstrate a probability of prevailing on the merits because the right

to representation under the Act applies to a confidential interview the OIG conducts with

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a CDCR employee only if “it appears that the facts of the case could lead to punitive

action” (Pen. Code, § 6126.5, subd. (d)) and the employee “is under investigation and

subjected to interrogation . . . that could lead to punitive action” (Gov. Code, § 3303).

Here, argued defendants, none of the plaintiff employees were under investigation, “the

OIG’s interviews were confidential and were not for the purposes of addressing

disciplinary action,” and the interviews did not cover “matters likely to result in punitive

action.”

Plaintiffs opposed the anti-SLAPP motion, arguing defendants failed to carry their

threshold burden of demonstrating plaintiffs’ causes of action arose from protected

activity. Plaintiffs argued defendants’ statements denying the requests for representation

were not “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)) because denying such representation “had no bearing on the

issues being considered in OIG’s [r]eview of [High Desert State Prison].” Nor did

denying such requests amount to “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” (id., subd. (e)(4)), argued plaintiffs, because

defendants “were statutorily required to perform the Senate-directed review of [High

Desert State Prison]” and therefore plaintiffs’ lawsuit will not “have the ‘chilling effect’

[on the rights of petition or free speech] the anti-SLAPP statute was designed to protect

against.”

Plaintiffs further argued they possessed a reasonable probability of prevailing on

the merits of their causes of action because the appropriate standard for determining

whether representation must be allowed under the Act is “whether the employee [being

interviewed] has a reasonable basis for believing that answers to the questions could form

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the basis of disciplinary action” and the individual correctional officer plaintiffs had such

a reasonable belief.

Trial Court Ruling

The trial court denied the anti-SLAPP motion with respect to plaintiffs’ causes of

action under Penal Code section 6126.5, subdivision (d), and the Act. As previously

mentioned, the trial court concluded (1) defendants carried their threshold burden of

demonstrating the gravamen of the causes of action arose from protected activity, but

(2) plaintiffs established a probability of prevailing on the merits of these claims. With

respect to the threshold issue, the trial court disagreed with defendants’ argument that the

causes of action challenged any written or oral statement made in connection with an

issue under consideration or review in an official proceeding within the meaning of

section 425.16, subdivision (e)(2), explaining the claims are “based on the [inspector

general’s] act of denying representation,” not on the communication of that denial to the

individual correctional officer plaintiffs. However, the trial court agreed the gravamen of

the causes of action arose from other conduct in furtherance of the exercise of the

constitutional rights of petition or free speech in connection with a public issue or issue

of public interest within the meaning of subdivision (e)(4) because, while defendants are

not a media outlet publishing a news report on an issue of public interest, “the California

Supreme Court acknowledged that ‘governmental entities are entitled to invoke the

protections of section 425.16 when such entities are sued on the basis of statements or

activities engaged in by the public entity or its public officials in their official capacity.’

(Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17.)”

Finally, concluding plaintiffs carried their burden of demonstrating a probability

of prevailing on the merits, the trial court explained: “Plaintiffs need not show that

punitive action will likely occur, but that the action may lead to adverse consequences.

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Plaintiffs have shown that the questions asked at the interviews may lead to punitive

action for failure to report misconduct.” In support of this conclusion, the trial court cited

paragraph 10 of Arthur Tovar’s declaration, in which he states: “Some of the questions

caused me some small concern because they involved potential misconduct that I may or

may not have observed while a correctional officer at High Desert State Prison.

Although I answered truthfully that I did not observe any of the misconduct [the

interviewing DIG] asked about, it occurred to me that if I had in fact witnessed such

misconduct, I could potentially be implicating myself for misconduct for failure to report

the misconduct.” The trial court added: “[T]he [inspector general’s report] identified

several allegations of misconduct [and] urged [High Desert State Prison] and OIA to take

action. The fact that the requests to investigate the specific allegations of misconduct all

occurred prior to the Plaintiffs’ interviews and that Plaintiffs may not have known of the

requests is of no import. The evidence demonstrates that interviews conducted by the

[OIG] as part of the review could lead, and did lead to investigations of some officers.”4



DISCUSSION

I

The Anti-SLAPP Statute

Section 425.16 provides in relevant part: “A cause of action against a person

arising 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



4 As we explain more fully in the discussion portion of the opinion, the record

does not support the conclusion the OIG interviews led to OIA investigations of any

officers.

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will prevail on the claim.” (§ 425.16, subd. (b)(1).) “[I]n applying the statute a court

generally is required to engage in 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 the court finds such a showing has been made, it then

determines whether the plaintiff has demonstrated a probability of prevailing on the

claim.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 712, overruled on another

point as stated in Burrill v. Nair (2013) 217 Cal.App.4th 357, 380.) “ ‘The defendant has

the burden on the first issue, the threshold issue; the plaintiff has the burden on the

second issue. [Citation.]’ [Citation.]” (Kajima Engineering & Construction, Inc. v. City

of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

We review the trial court’s ruling de novo. (Flatley v. Mauro (2006) 39 Cal.4th

299, 325.) “ ‘We consider “the pleadings, and supporting and opposing affidavits upon

which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither

“weigh credibility [nor] compare the weight of the evidence. Rather, . . . [we] accept as

true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s

evidence only to determine if it has defeated that submitted by the plaintiff as a matter of

law.” [Citation.]’ [Citation.]” (Flatley v. Mauro at p. 326.)

II

The Threshold Issue

While defendants OIG and Inspector General Barton, the appellants in this

appeal, prevailed on the threshold issue below, we begin with this issue because, as

the individual correctional officer plaintiffs and CCPOA correctly point out, we may

affirm the trial court’s denial of the anti-SLAPP motion regardless of their likelihood

of prevailing on the merits if we conclude defendants failed to carry their burden of

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showing the causes of action arose from protected activity. We conclude defendants

have carried that burden.

Only those causes of action “arising from any act . . . in furtherance of the . . .

right of petition or free speech under the United States Constitution or the California

Constitution in connection with a public issue” are “subject to a special motion to strike”

under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) “[T]he statutory phrase ‘cause of

action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s

cause of action must itself have been an act in furtherance of the right of petition or free

speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s

cause of action itself was based on an act in furtherance of the defendant’s right of

petition or free speech. [Citations.] ‘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) . . . .’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th

69, 78-79, italics omitted.)

Section 425.16, subdivision (e), provides: “As used in this section, ‘act in

furtherance of a person’s right of petition or free speech under the United States or

California Constitution in connection with a public issue’ 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.”

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Interpreting this subdivision, our Supreme Court has explained: “Clauses (3) and

(4) . . . concerning statements made in public fora and ‘other conduct’ implicating speech

or petition rights, include an express ‘issue of public interest’ limitation; clauses (1) and

(2), concerning statements made before or in connection with issues under review by

official proceedings, contain no such limitation. In light of this variation in phraseology,

it must be presumed the Legislature intended different ‘issue’ requirements to apply to

anti-SLAPP motions brought under clauses (3) and (4) of subdivision (e) than to motions

brought under clauses (1) and (2).” (Briggs v. Eden Council for Hope & Opportunity

(1999) 19 Cal.4th 1106, 1117.) Thus, subdivision (b)’s reference to “exercise of First

Amendment rights ‘in connection with a public issue’ ” was not “meant to function as a

separate proof requirement applicable to motions brought under all four clauses of

subdivision (e) . . . .” (Id. at pp. 1117-1118.) Instead, “if a communication falls within

either of the ‘official proceeding’ clauses, the anti-SLAPP statute applies without a

separate showing that a public issue or an issue of public interest is present. [Citations.]

In drafting the statute, the Legislature concluded that authorized official proceedings

necessarily involve a public issue or an issue of public interest.” (Graffiti Protective

Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1217; Briggs, supra,

19 Cal.4th at p. 1118 [“Any matter pending before an official proceeding possesses some

measure of ‘public significance’ owing solely to the public nature of the proceeding, and

free discussion of such matters furthers effective exercise of the petition rights section

425.16 was intended to protect”].)

The trial court rejected defendants’ argument that plaintiffs’ causes of action arose

from protected activity within the meaning of clause (2) of section 425.16, subdivision

(e), but concluded the causes of action did arise from protected activity within the

meaning of clause (4) of that subdivision. Defendants argue both clauses are satisfied,

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while plaintiffs argue defendants satisfied neither. Because we conclude the trial court

correctly determined clause (4) was satisfied, we need not determine whether defendants

also satisfied clause (2).

The gathering of information preparatory to publishing a news report or scholarly

article qualifies as “other conduct in furtherance of the exercise of . . . the constitutional

right of free speech” within the meaning of section 425.16, subdivision (e)(4). This is so

regardless of alleged illegality in the manner that information was gathered. (See, e.g.,

Taus v. Loftus, supra, 40 Cal.4th at p. 713 [the defendants’ investigation into the validity

of a scholarly article preparatory to publishing responsive articles, including an interview

the plaintiff alleged was fraudulently obtained, was “unquestionably . . . conduct in

furtherance of their right of free speech”]; Lieberman v. KCOP Television, Inc. (2003)

110 Cal.App.4th 156, 165 [the defendant’s newsgathering conduct preparatory to the

publishing of a news report, including surreptitious videotape recordings the plaintiff

alleged were illegally obtained, was “conduct in furtherance of the . . . exercise of its

right of free speech,” italics added].)

Here, the OIG was asked by the Senate Rules Committee “to review the

practices at High Desert State Prison . . . with respect to (1) excessive use of force

against inmates, (2) internal reviews of incidents involving the excessive use of force

against inmates, and (3) protection of inmates from assault and harm by others.”

The OIG was also asked to issue “a written report detailing the results of [the] review.”

The request was made pursuant to Penal Code section 6126, subdivision (b).

Subdivision (c)(2) of this section also required the inspector general to “prepare a

public report,” a copy of which “shall be posted on the [OIG’s] Internet Web site.”

(Pen. Code, § 6126, subd. (c)(2).) Defendants interviewed the individual correctional

officer plaintiffs as part of this review of High Desert State Prison. Plaintiffs challenge

17

the manner in which those interviews were conducted. Specifically, they contend

defendants violated their rights under the Act by refusing their requests for

representation. Thus, the causes of action arise from information gathering preparatory

to the publishing of the above-mentioned reports and therefore qualify for protection

under section 425.16, subdivision (e)(4), if the OIG’s review of High Desert State

Prison can be said to be “in connection with a public issue or an issue of public interest.”

We have no difficulty concluding the alleged mistreatment of prisoners at a California

correctional facility qualifies as an issue of public interest.

Nor does it matter the defendants are governmental actors, rather than private

individuals or press organizations. In Vargas v. City of Salinas (2009) 46 Cal.4th 1

(Vargas), the plaintiffs, proponents of a local ballot measure, sued the City of Salinas

alleging the City improperly expended public money for certain communications

(published on the City’s Website, in a newsletter, and in a one-page leaflet) relating to the

measure. (Id. at pp. 7, 11-13.) The trial court granted the City’s anti-SLAPP motion;

both the Court of Appeal and our Supreme Court affirmed. (Id. at pp. 9, 14.) With

respect to the threshold issue of whether the plaintiffs’ causes of action arose from

protected activity, our Supreme Court first addressed the plaintiffs’ argument that the

communications did “not constitute ‘protected activity’ within the meaning of the antiSLAPP

statute” because “the communications . . . are those of a governmental entity

rather than a private individual or organization.” (Id. at p. 16.) The plaintiffs argued the

communications “cannot properly be viewed as ‘acts . . . in furtherance of the person’s

right of petition or free speech under the United States or California Constitution because

. . . government speech, unlike that of a private individual or organization, is not

protected by the First Amendment of the federal Constitution or article I, section 2 of the

California Constitution.” (Id. at pp. 16-17.)

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Rejecting this argument, the court noted, “a long and uniform line of California

Court of Appeal decisions explicitly holds that governmental entities are entitled to

invoke the protections of section 425.16 when such entities are sued on the basis of

statements or activities engaged in by the public entity or its public officials in their

official capacity[.]” (Vargas, supra, 46 Cal.4th at p. 17, citing Bradbury v. Superior

Court (1996) 49 Cal.App.4th 1108, 1113-1116; Schroeder v. Irvine City Council (2002)

97 Cal.App.4th 174, 183-184; San Ramon Valley Fire Protection Dist. v. Contra Costa

County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 353; Tutor-Saliba

Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609; Santa Barbara County Coalition

Against Automobile Subsidies v. Santa Barbara County Assn. of Governments (2008) 167

Cal.App.4th 1229, 1237-1238; Schaffer v. City and County of San Francisco (2008) 168

Cal.App.4th 992, 1001-1004.) Declining to overrule these decisions, the court held:

“Whether or not the First Amendment of the federal Constitution or article I, section 2 of

the California Constitution directly protects government speech in general or the types of

communications of a municipality that are challenged here—significant constitutional

questions that we need not and do not decide—we believe it is clear, in light of both the

language and purpose of California’s anti-SLAPP statute, that the statutory remedy

afforded by section 425.16 extends to statements and writings of governmental entities

and public officials on matters of public interest and concern that would fall within the

scope of the statute if such statements were made by a private individual or entity.”

(Vargas, supra, 46 Cal.4th at p. 17.)

The court explained that while “plaintiffs’ argument . . . rests on the language

of section 425.16, subdivision (b), which describes the type of cause of action that

is subject to a motion to strike as ‘[a] cause of action . . . arising from any act . . . in

furtherance of the person’s right of petition or free speech under the United States

19

or California Constitution in connection with a public issue[,]’ . . . section 425.16,

subdivision (e) goes on to define this statutory phrase in very broad terms . . . [without]

purport[ing] to draw any distinction between (1) statements by private individuals or

entities that are made in the designated contexts or with respect to the specified

subjects, and (2) statements by governmental entities or public officials acting in

their official capacity that are made in these same contexts or with respect to these

same subjects. Although there may be some ambiguity in the statutory language,

section 425.16, subdivision (e) is most reasonably understood as providing that the

statutory phrase in question includes all such statements, without regard to whether the

statements are made by private individuals or by governmental entities or officials.”

(Vargas, supra, at pp. 17-18.) The court further explained, “to the extent there may

ever have been a question whether the anti-SLAPP protections of section 425.16 may

be invoked by a public entity, that question clearly was laid to rest by the Legislature’s

enactment of . . . section 425.18, subdivision (i), in 2005—well after many of the Court

of Appeal decisions noted above [citations] had expressly recognized the ability of

public entities to bring a motion to strike under the anti-SLAPP statute. Section 425.18,

subdivision (i)—a provision of the 2005 legislation dealing with so-called SLAPPback

actions—expressly recognizes that a ‘SLAPPback’ action may be ‘filed by a public

entity,’ thereby necessarily confirming that a public entity may prevail on a special

motion to strike under section 425.16.” (Id. at p. 18.)

Finally, the court also noted, “the purpose of the anti-SLAPP statute plainly

supports an interpretation that protects statements by governmental entities or public

officials as well as statements by private individuals,” explaining: “In setting forth the

purpose of the statute and the Legislature’s intent guiding its interpretation, section

425.16, subdivision (a) states in relevant part: ‘The Legislature finds and declares that it

20

is in the public interest to encourage continued participation in matters of public

significance, and that this participation should not be chilled through abuse of the judicial

process. To this end, this section shall be construed broadly.’ (Italics added.) Moreover,

the legislative history indicates that the Legislature’s concern regarding the potential

chilling effect that abusive lawsuits may have on statements relating to a public issue or a

matter of public interest extended to statements by public officials or employees acting in

their official capacity as well as to statements by private individuals or organizations.”

(Vargas, supra, at pp. 18-19, fn. omitted.)

Here, plaintiffs’ causes of action do not arise out of the publishing of the OIG

report on practices at High Desert State Prison, but rather out of defendants’ information

gathering preparatory to the publishing of that report. However, as we have already

explained, such conduct would “unquestionably [amount to] conduct in furtherance of

their right of free speech” (Taus v. Loftus, supra, 40 Cal.4th at p. 713) “if [engaged in] by

a private individual or entity.” (Vargas, supra, at p. 17.) Thus, the reasoning of Vargas

applies, as does the statutory remedy afforded by section 425.16.

Nevertheless, relying on Anderson v. Geist (2015) 236 Cal.App.4th 79 (Anderson),

plaintiffs argue, “this lawsuit is unlikely to have the effect of chilling [defendants’] public

participation” because “they were statutorily required to perform the Senate-directed

review of [High Desert State Prison].” Anderson is distinguishable. There, the plaintiff

sued two sheriff’s deputies alleging they unlawfully entered her residence while

executing a recalled bench warrant for her daughter’s arrest and made defamatory

statements to her neighbors while doing so. (Id. at p. 82.) Thus, the causes of action

arose out of the deputies’ execution of the warrant. The Court of Appeal held, “at least

under the circumstances of this case,” the execution of such a warrant was not protected

activity under the anti-SLAPP statute. (Ibid.) The court explained: “Execution of an

21

arrest warrant is of course ‘an act in furtherance of a criminal prosecution,’ as defendants

put it. But that does not necessarily make it ‘conduct in furtherance of the exercise of the

constitutional right of petition’ in the meaning of section 425, subdivision (e)(4). At

base, the execution of a warrant is not an exercise of rights by the peace officer; it is the

performance of a mandatory duty, at the direction of the court. [Citation.] Because peace

officers have no discretion in whether or not to execute a warrant issued by the court, it

seems unlikely that a lawsuit asserting claims arising from such activity could have the

chilling effect that motivated the Legislature to adopt the anti-SLAPP statute, or that

extending protections of the anti-SLAPP statute to such activity would serve the statute’s

goals.” (Id. at pp. 86-87.) The court further explained, “to qualify for protection under

section 425.16, subdivision (e)(4), the conduct at issue must be ‘in connection with a

public issue or an issue of public interest’—that is, it must ‘concern[ ] a topic of

widespread public interest and contribute[ ] in some manner to a public discussion of the

topic.’ [Citations.] In their briefing on appeal, defendants fail to make any argument as

to why their execution of a warrant in the circumstances of this case—a routine

misdemeanor warrant in a case that apparently attracted precisely zero public interest or

discussion—might meet this standard, and we find nothing in the record that might

support an argument to that effect.” (Id. at p. 87.)

Here, in contrast to Anderson, supra, 236 Cal.App.4th 79, the OIG’s review of

High Desert State Prison concerned a topic of widespread public interest and the report

issued to the Senate and published on the OIG Website contributes to a public discussion

of the topic. Not only would the publishing of those reports be protected by the state and

federal Constitutions had they been published by a private individual or entity, but the

information gathering preparatory to their publication would also be covered. (Taus v.

Loftus, supra, 40 Cal.4th at p. 713) These causes of action arise out of that information

22

gathering conduct. And because such conduct “would fall within the scope of the statute

if [engaged in] by a private individual or entity” (Vargas, supra, at p. 17), the fact

defendants are instead governmental entities does not strip them of the statute’s

protection. Nor are we persuaded the mandatory duty of the inspector general to

undertake the review of High Desert State Prison upon receipt of the Senate’s request

vitiates the statute’s protection.

Despite the inspector general’s mandatory duty to conduct the review of High

Desert State Prison, were we to hold causes of action arising out of the OIG’s information

gathering during the course of that review are not subject to the anti-SLAPP statute, this

may well inhibit the manner in which such reviews are undertaken. In other words, had

the defendants known they would be required to defend against meritless claims arising

out of their interviews with the individual correctional officer plaintiffs without the

ability to have those claims stricken at an early stage in the proceedings under the antiSLAPP

statute, it is entirely possible they would have conducted the review without

interviewing those plaintiffs at all, and thereby would have lost valuable information

forming at least part of the basis for a number of the OIG’s recommendations regarding

policy improvements at High Desert State Prison. Simply put, public discussion of this

important issue may well have been chilled.

III

Probability of Prevailing on the Merits

We now explain why plaintiffs have not demonstrated a probability of prevailing

on their causes of action under Penal Code section 6126.5 and the Public Safety Officers

Procedural Bill of Rights.

Penal Code section 6126.5 provides in relevant part: “The Inspector General may

require any employee of [CDCR] to be interviewed on a confidential basis. Any

23

employee requested to be interviewed shall comply and shall have time afforded by the

appointing authority for the purpose of an interview with the Inspector General or his or

her designee. The Inspector General shall have the discretion to redact the name or other

identifying information of any person interviewed from any public report issued by the

Inspector General, where required by law or where the failure to redact the information

may hinder prosecution or an action in a criminal, civil, or administrative proceeding, or

where the Inspector General determines that disclosure of the information is not in the

interests of justice. It is not the purpose of these communications to address disciplinary

action or grievance procedures that may routinely occur. If it appears that the facts of

the case could lead to punitive action, the Inspector General shall be subject to Sections

3303, 3307, 3307.5, 3308, 3309, and subdivisions (a) to (d), inclusive, of Section 3309.5

of the Government Code as if the Inspector General were the employer, except that the

Inspector General shall not be subject to the provisions of any memorandum of

understanding or other agreement entered into between the employing entity and the

employee or the employee’s representative that is in conflict with, or adds to the

requirements of, Sections 3303, 3307, 3307.5, 3308, 3309, and subdivisions (a) to (d),

inclusive, of Section 3309.5 of the Government Code.” (Pen. Code, § 6126.5, subd. (d),

italics added.)

The provisions listed in Penal Code section 6126.5, subdivision (d), to which the

inspector general is subject “[i]f it appears that the facts of the case could lead to punitive

action,” are part of the Public Safety Officers Procedural Bill of Rights. “The Act

requires that law enforcement agencies throughout the state afford minimum procedural

rights to their peace officer employees.” (Pasadena Police Officers Assn. v. City of

Pasadena (1990) 51 Cal.3d 564, 572.) To that end, Government Code section 3303

provides, “[w]hen any public safety officer is under investigation and subjected to

24

interrogation by his or her commanding officer, or any other member of the employing

public safety department, that could lead to punitive action, the interrogation shall be

conducted under the following conditions. For the purpose of this chapter, punitive

action means any action that may lead to dismissal, demotion, suspension, reduction in

salary, written reprimand, or transfer for purposes of punishment.” (Italics added.)

Subdivision (i) of this section provides: “Upon the filing of a formal written statement of

charges, or whenever an interrogation focuses on matters that are likely to result in

punitive action against any public safety officer, that officer, at his or her request, shall

have the right to be represented by a representative of his or her choice who may be

present at all times during the interrogation. The representative shall not be a person

subject to the same investigation. The representative shall not be required to disclose, nor

be subject to any punitive action for refusing to disclose, any information received from

the officer under investigation for noncriminal matters. [¶] This section shall not apply to

any interrogation of a public safety officer in the normal course of duty, counseling,

instruction, or informal verbal admonishment by, or other routine or unplanned contact

with, a supervisor or any other public safety officer, nor shall this section apply to an

investigation concerned solely and directly with alleged criminal activities.” (Gov. Code,

§ 3303, subd. (i), italics added.)

The published decisions addressing the question of whether or not the right to

representation was triggered under the Act do not involve the overlay of Penal Code

section 6126.5 present in this case. However, they are instructive with respect to the

scope of the right to representation set forth in Government Code section 3303. This

section requires the officer invoking the right to representation must be (1) “under

investigation” and (2) “subjected to interrogation . . . that could lead to punitive action”

(Gov. Code, § 3303), i.e., the “interrogation focuses on matters that are likely to result in

25

punitive action against . . . that officer” (id., subd. (i)).

5

For example, in Paterson v. City

of Los Angeles (2009) 174 Cal.App.4th 1393, as part of an investigation into suspicions

that a police officer was abusing sick leave, a supervising officer was sent to his home to

conduct a “sick check.” Neither the officer suspected of violating department sick leave

policies nor his wife, also a police officer, was home at the time. The supervising officer

called the suspected officer’s cell phone and spoke to both him and his wife, both of

whom lied during the conversation and were temporarily relieved from duty for making

false statements to a supervisor. The disciplined officers sued the city alleging, among

other causes of action, violation of the Act. (Id. at pp. 1396-1398.) Reversing the trial

court’s grant of summary adjudication in favor of the city as to this cause of action, the

Court of Appeal explained the Act applied because the sick check was conducted as part

of “an investigation of abuse of sick leave” and “it is easy to determine that the sick

check might have led to punitive action, because it did lead to punitive action.” (Id. at

pp. 1401-1402.)

In contrast, Steinert v. City of Covina (2006) 146 Cal.App.4th 458 involved a

situation in which the plaintiff police officer was questioned by her supervisor concerning

her typing the wrong designation while conducting a criminal records search, i.e.,

“TRNG,” indicating training, rather than the applicable crime report number. During that

conversation, when asked whether she had provided any confidential information



5 As quoted fully above, subdivision (i) states, “whenever an interrogation focuses

on matters that are likely to result in punitive action against any public safety officer, that

officer, at his or her request, shall have the right to be represented by a representative of

his or her choice who may be present at all times during the interrogation.” (Gov. Code,

§ 3303, subd. (i), italics added.) Thus, while the subdivision begins by stating the

interrogation must focus on matters likely to result in punitive action against “any public

safety officer,” it is “that officer,” i.e., the one against whom punitive action is likely to

result from the interrogation, who possesses the right to representation.

26

discovered during the records search to the reporting party, the officer said she had not

done so. This was later determined to be a lie and led to her dismissal. (Id. at pp. 460-

461.) The trial court determined the conversation with the supervisor did not trigger the

right to representation under the Act. The Court of Appeal affirmed, concluding

substantial evidence supported that determination. The court explained that neither the

supervisor nor the department’s support services manager believed there was anything

improper about the records search or that the officer had improperly given out

confidential information. The only suspicion at the time of the conversation was the

officer’s improper use of “TRNG” as the search designation, but according to both the

supervisor and the support services manager such “mislabeling was not a substantial rule

violation” that would lead to punitive action, but was rather a “simple training issue.”

(Id. at pp. 462-463.) Thus, the officer was not “under investigation” and “subjected to

interrogation . . . that could lead to punitive action.” (Gov. Code, § 3303.) Instead, the

conversation was the sort of “interrogation of a public safety officer in the normal course

of duty, counseling, instruction, or informal verbal admonishment by, or other routine or

unplanned contact with, a supervisor” (id., subd. (i), that does not trigger the right to

representation under the Act. (Steinert v. City of Covina, supra, 146 Cal.App.4th at

p. 465.)

Here, none of the individual correctional officer plaintiffs who were interviewed in

connection with the OIG’s review of High Desert State Prison were “under investigation”

for anything, let alone something “that could lead to punitive action.” (Gov. Code,

§ 3303.) For this reason alone, assuming their interviews can reasonably be considered

“interrogation” at all, this was not the sort of “interrogation [that] focuses on matters that

are likely to result in punitive action” against the officers being interviewed. (Id.,

subd. (i).) Instead, these officers were interviewed because they previously worked at

27

High Desert State Prison, specifically in the section of the prison that housed the majority

of sex offenders and inmates with disabilities. While the Senate’s letter authorizing the

OIG’s review of the prison recounted a number of allegations of abuse made by these

classes of inmates, as both Inspector General Barton and Chief Deputy Inspector General

Wesley explained in their declarations, neither considered the Senate’s request to call for

investigation of specific allegations of employee misconduct, nor would the OIG have

statutory authority to conduct such an investigation had that been requested. Both

considered the request to call for a broader inquiry into policies and practices in place at

High Desert State Prison and “overall staff culture and attitudes” at the prison.

Moreover, while the OIG was also monitoring 19 active OIA investigations, none of

the plaintiffs were considered “potential witnesses in those investigations.” From this,

it can be inferred that these plaintiffs were also not the subjects of the active

investigations. Additionally, those active investigations were monitored by SAIGs,

whereas plaintiffs were interviewed by DIGs with no knowledge pertaining to the

investigations.

Nor is there any support in the record for the trial court’s conclusion that

plaintiffs’ interviews led to “investigations of some officers.” Indeed, both Inspector

General Barton and Chief Deputy Inspector General Wesley explained in their

declarations that they considered the interviews with plaintiffs to be confidential. In line

with this understanding, the OIG denied a request from an OIA Senior Special Agent for

copies of the interviews. Indeed, the report the OIG ultimately submitted to the Senate

does not “contain a single statement indicating any of the plaintiffs had engaged in or

were suspected of engaging in misconduct” or “include any of the plaintiffs’ names or

identify a single person interviewed during the course of the review.”

28

In short, the individual correctional officer plaintiffs were neither “under

investigation” nor “subjected to interrogation . . . that could lead to punitive action.”

(Gov. Code, § 3303.) Nor does the overlay of Penal Code section 6126.5,

subdivision (d), alter this result. Subdivision (d) confirms the purpose of an inspector

general interview with a CDCR employee is not “to address disciplinary action or

grievance procedures that may routinely occur.” (Pen. Code, § 6126.5, subd. (d).)

Nevertheless, “[i]f it appears that the facts of the case could lead to punitive action, the

Inspector General shall be subject to Section[] 3303 . . . of the Government Code as if the

Inspector General were the employer.” (Ibid., italics added.) For the reasons already

expressed, we conclude it would not have appeared to either the inspector general or to a

reasonable person in plaintiffs’ position that these confidential interviews could have led

to punitive action against plaintiffs, particularly since they were neither under

investigation for any potential misconduct nor questioned as potential witnesses in any

active OIA investigation.

Finally, plaintiffs’ reliance on N.L.R.B. v. J. Weingarten, Inc. (1975) 420 U.S. 251

[43 L.Ed.2d 171] (Weingarten) is unpersuasive. There, the United States Supreme Court

held: “The action of an employee in seeking to have the assistance of his [or her] union

representative at a confrontation with his [or her] employer clearly falls within the literal

wording of [section 7 of the National Labor Relations Act] that ‘(e)mployees shall have

the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or

protection.’ [Citation.] This is true even though the employee alone may have an

immediate stake in the outcome; [the employee] seeks ‘aid or protection’ against a

perceived threat to his [or her] employment security. The union representative whose

participation [is sought] is, however, safeguarding not only the particular employee’s

interest, but also the interests of the entire bargaining unit by exercising vigilance to

29

make certain that the employer does not initiate or continue a practice of imposing

punishment unjustly.” (Id. at pp. 260-261.) The court went on to explain: “Requiring a

lone employee to attend an investigatory interview which he [or she] reasonably believes

may result in the imposition of discipline perpetuates the inequality the [National Labor

Relations Act] was designed to eliminate . . . .” (Id. at p. 262.) Noting a number of

appellate decisions have considered Weingarten to be “ ‘persuasive authority’ when

construing [the Public Safety Officers Procedural Bill of Rights]” (Ellins v. City of Sierra

Madre (2016) 244 Cal.App.4th 445, 454-455), plaintiffs argue the appropriate standard is

whether or not they reasonably believed punitive action could result from the interviews

with the OIG, and not whether or not punitive action would actually result therefrom in

light of the inspector general’s subjective intent.

We agree the test is an objective one. In this case, it turns on whether or not a

reasonable person in the plaintiffs’ position, having been informed by the interviewer that

he or she was not under investigation for any potential wrongdoing, would nevertheless

believe he or she was “under investigation” for something “that could lead to punitive

action” (Gov. Code, § 3303), or that “the facts of the case could lead to punitive action”

against him or her. (Pen. Code, § 6126.5, subd. (d).) As we have already explained, a

reasonable person in plaintiffs’ position would not have so believed. Moreover, nothing

in Weingarten erases the requirement that the officer must actually be “under

investigation.” (Gov. Code, § 3303; id., subd. (i).) In that case, the employee in question

was under investigation for stealing food from her employer and therefore had a

reasonable basis to believe an interrogation focusing on that alleged misconduct could

result in the imposition of discipline against her. (Weingarten, supra, at p. 255.) Here,

none of the individual correctional officer plaintiffs were under investigation for any

suspected misconduct. They were so informed. Thus, none of them had a reasonable

30

basis to believe their interviews with the OIG “could lead to punitive action” against

them.

The anti-SLAPP motion should have been granted with respect to the first and

second causes of action.

The portion of the trial court’s order denying the anti-SLAPP motion with respect

to the first and second causes of action is reversed and vacated. The trial court is directed to enter a new order granting the motion in its entirety and dismissing the complaint. Because defendants should have prevailed on the anti-SLAPP motion, they are entitled to fees and costs incurred both in the trial court and on appeal, to be determined by the trial court. (Code Civ. Proc., § 425.16, subd. (c); Anschultz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)