Tuesday, May 11, 2021

Anti-SLAPP Motion Overturned Because County's Disclosure of Investigator's Personnel Records Consistuted a Crime

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

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

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

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

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

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


Friday, April 30, 2021

S.B. 2 Narrowly Advanced Through the Senate Judiciary Committee on April 27, 2021

Focusing almost exclusively on concerns with the expansion of liability under S.B. 2's amendments to the Bane Act, the Senate Judiciary Committee narrowly advances the Bill on Tuesday April 27, 2021.  While Senators, including Anna Caballero, expressed concerns over the lack of meaningful due process in the decertification sections of the Bill, the hearing focused on the Bill's elimination of the requirement that plaintiffs prove specific intent to violate a civil right. 

The Bane Act is a statute that was intended to address hate crimes by providing enhanced liability, such as attorney fees with Lodestar multipliers which can approach $1000.00/hr, for intentional violations of civil rights. Under the Bane Act, a Plaintiff must also prove the officer “intentionally interfered with or attempted to interfere with civil rights by threats, intimidation, or coercion.” SB 2 would replace this requirement with essentially a negligence standard, i.e., general intent to engage in the conduct without the intent to do anything wrongful. 

Although civil tort remedies already exist for negligence, battery, wrongful death, etc., trial attorneys are advocating for this change primarily to gain access to attorney’s fees that are not available in most civil actions.  In fact, attorney's fees under the Bane Act often dwarf the actual recovery to the plaintiffs, thereby enriching the lawyers at the expense of public services.  Importantly, these changes would apply to all public employees.  In fact, much of the Bane Act jurisprudence involves lawsuits against teachers and social workers.

David E. Mastagni testified at the hearing to explain the unintended consequences of opening the flood gates of liability any time a public employee makes a mistake.  You can watch the testimony HERE starting at 40:45.   David also raised an example of a teacher sued under the Bane Act for failing to provide a nut free environment.  No liability under Bane was found in that case because no one ever threatened or intentionally exposed the student to nut products.  Under SB 2, the court might have reached a different conclusion.  

Senator Bradford steadfastly refused any amendments to moderate his proposed expansion of liability. He rejected compromise proposals from his colleagues to expand liability to include deliberate indifference or reckless disregard for a constitutional right, but not lower the standard to mere negligence.  Senator Tom Umberg, D-Orange County, expressed concerns over the expansive increase in liability, describing the Bill as not "fully cooked."  Umberg, who had unsuccessfully attempted to broker compromise amendments from Bradford, said the proposal to lower the existing intent bar from “specific” to “general” could cause confusion and declined to vote.

The bill passed out of the Judiciary Committee 7-2 after being put on call for over 6 hours. Many of the committee members expressed concern with the Bill as submitted while agreeing that a decertification process needs to be put in place and suggested that the bill be held, as it needs some work.  The Committee advanced the Bill only after Bradford relented and promised to amend the sections of the Bill eliminating the intent requirement.  Multiple senators warned they would oppose the bill if Bradford refuses to accept the changes to the liability language. With Tuesday’s result, SB 2 will advance to a fiscal committee before a potential floor vote. 

Law enforcement stakeholders support a fair license decertification process that respects due process and avoids double jeopardy.  As Brian Marvel, President of the Peace Officers Research Association of California (PORAC) explained:  “PORAC supports the spirit and intent of a licensure program  reflected in Bradford’s SB 2 – we cannot allow officers who demonstrate gross misconduct to continue to be members of the law enforcement profession; their licenses must be revoked. However, SB 2 reaches far beyond the police licensing process and includes policies that would be incredibly burdensome on cities and counties that employ peace officers, and would potentially penalize even the most respectful officers for placing themselves in harm’s way to keep our families and communities safe.” PORAC concerns with SB 2 are more fully articulated HERE.

David E. Mastagni was interviewed and quoted in the Los Angeles Times in May 1, 2021, article titled "Most States Have a System for Ousting Bad Cops. In California Legislation Is Struggling", by Anita Chaabria. He explained how enhanced liability for attorney's fees would drain municipalities and why the decertification process in the bill violates due process.  He was also recently quoted in the New York Times article "Split-Second Decisions: How a Supreme Court Cases Shaped Modern Policing", April 25, 2021, by David D. KirkpatrickHe explained, "With the benefit and luxury of hindsight and time and tranquility, you could get any kind of use-of-force or police-practices expert or even an attorney to say that there was something else that an officer could have done. Then the officer is stripped retroactively of the right to self-defense.” 

Wednesday, April 28, 2021

Register Now!  ACDSA and Mastagni Law Are Presenting an Upcoming Webinar on POBR, Critical Incidents, Peace Officer Free Speech and Work-Related Illness and Injuries

The Alameda County Deputy Sheriffs’ Assn. and Mastagni Holstedt, A.P.C., are proud to present a free 10-hour, POST accredited webinar training for peace officers on May 18th and again on May 20th , 2021. Please join us for comprehensive courses covering:

Public Safety Officers Procedural Bill of Rights Act (POBR) (7:30-10:30 am)

Critical Incidents – Investigation Protocols, Officers’ Rights & Responsibilities (10:45 am-1:45 pm)

Peace Officer Free Speech, Social Media & The First Amendment (2:45-4:45 pm)

The Injured Peace Officer: What Are My Options? (4:45-6:45 pm)

This class is free to our clients and California peace officers. 

Registration closes May 14. Registrants MUST INCLUDE your name, email, cell phone number, job title, employing agency, POST ID number (to receive POST Credit), and the dates you wish to attend.

PLEASE NOTE: This is a remote course hosted through Zoom. Individual access to a computer with internet is required to attend. Registrants will be sent an email with a link to course materials and meeting invite prior to the course.

Monday, April 26, 2021

Register Now! ACDSA and Mastagni Law Are Presenting An Upcoming Webinar on "Use of Force Issues for Peace Officers"

The Alameda County Deputy Sheriffs’ Assn. and Mastagni Holstedt, APC, are Proud to Present a 10-hour, POST Accredited Webinar of Training for Peace Officers

May 11th and again on May 13th, 2021, from 7:30 am to 6:45 pm David R. Demurjian will present.

"Use of Force Issues for Peace Officers"

A primer on the legal repercussions for any use of force by law enforcement personnel in today’s peacekeeping environment.  The instructor and students will review and discuss relevant authorities and case law used in the judicial interpretation of force cases, including in depth review and analysis of body camera footage and role-playing various scenarios.


David R. Demurjian is a Senior Associate in the Labor and Employment Department of Mastagni Holstedt, A.P.C., and a certified force instructor for a large law enforcement agency. His assignments have been patrol, gang enforcement and academy staff for the last fifteen years. These assignments have provided him with a unique insight into the split-second decisions made in the life and death encounters of law enforcement. Mr. Demurjian is also a captain assigned to the Judge Advocate General’s Office.

This class is free to our clients and California peace officers.


Registration closes May 7, 2021.

Registrants MUST INCLUDE your name, email, cell phone number, job title, employing agency, POST ID number (to receive POST Credit), and the dates you wish to attend.

This is a remote course hosted through Zoom. Individual access to a computer with internet is required to attend. Registrants will be sent an email with a link to course materials and meeting invite prior to the course.  In order to receive POST Credit you must attend the entire training.