Filed 3/29/16 Pinheiro v. County of Fresno CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

JOHN PINHEIRO,
                                                                                           F070058
         Plaintiff and Appellant,
                                                                           (Super. Ct. No. 13CECG02526)
                   v.

COUNTY OF FRESNO, et al.,                                                                OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
         Motschiedler, Michaelides, Wishon, Brewer & Ryan, and Russell K. Ryan, for
Plaintiff and Appellant.
         McCormick, Barstow, Sheppard, Wayte & Carruth, Michael G. Woods and
Deborah A. Byron, for Defendants and Respondents.
                                                        -ooOoo-
         Following his discharge from his position as labor relations manager for the
County of Fresno (County), John Pinheiro (Pinheiro) sued the County, the County’s
Chief Administrative Officer (CAO) John Navarrette (Navarrette), and the County’s
director of personnel services Beth Bandy (Bandy) (collectively respondents), in a first
amended complaint that alleged defamation, three theories of invasion of privacy,
intentional disclosure of personal information from government records, and intentional
infliction of emotional distress. Respondents prevailed on their motion under Code of
Civil Procedure section 425.16,1 the anti-SLAPP (strategic lawsuits against public
participation) statute, and were awarded attorney fees.
       On appeal from the resulting judgment, Pinheiro argues the trial court erred in
granting the anti-SLAPP motion because respondents did not meet their burden of
showing that the allegations upon which his claims are based constitute protected activity
under the statute, and he established a probability of prevailing on the merits. We agree
with Pinheiro that the causes of action are not subject to an anti-SLAPP motion because
the underlying statements were not made in connection with an issue under consideration
or review in an official proceeding authorized by law and do not concern an issue of
public interest, and reverse the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Facts Leading to This Lawsuit
       Pinheiro was employed as the County’s labor relations manager and personnel
services manager in the division of personnel services. His job duties included managing
the labor relations division and acting as the County’s chief labor negotiator. He reported
directly to Bandy, who in turn reported directly to Navarrette. Pursuant to the County’s
personnel rules, Pinheiro could be terminated only for cause.
       Pinheiro’s job was a high profile one, which he described in his original complaint
as “one of the most important positions at the County.” He acted as the County’s chief
spokesperson in negotiations with employee organizations, particularly with respect to
high profile matters. He attended County board of supervisors meetings and sometimes
addressed the media about subjects such as pay cuts. He also attended nearly all labor

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


                                              2.
relations closed sessions with the board of supervisors. Pinheiro managed the labor
relations program and was responsible for planning, developing, implementing and
evaluating labor relations goals, programs, policies and procedures. He also was
responsible for supervising and evaluating others’ work. His honesty, integrity and
discretion were critical to the effective performance of his duties, as was having a “close
working relationship” with Bandy.
       Pinheiro performed well in his position and was commended regularly by
members of the board of supervisors, Navarrette and Bandy. Bandy gave him an
evaluation in February 2012,2 which commended him for doing an excellent job. Bandy
stated that Pinheiro had performed his duties and responsibilities “quite well” and noted it
was unfortunate the County was not in a fiscal position to grant merit increases to
managers because, if it were, she would recommend the maximum amount for Pinheiro
based on his accomplishments over the past year. One category of evaluation was for
“Integrity and Trust,” which the evaluation form described as being “widely trusted,”
“seen as a direct, truthful individual[,]” being able to “present the unvarnished truth in an
appropriate and helpful manner[,]” keeping confidences and admitting mistakes, being
honest and ethical, and not misrepresenting oneself for personal gain. Pinheiro was given
a rating of “M” in this category, meaning he “Meets Expectations.” According to
Pinheiro, before 2012 there were never any issues with his employment performance and
he was never disciplined in any form.
       In April, a Fresno Bee reporter called Bandy and told her that Pinheiro had been
arrested for petty theft. Bandy provided the information to Navarrette. Sometime later,
an officer with the sheriff’s department contacted Navarrette regarding a petty theft
citation that the City of Fresno’s police department was investigating. Navarrette
understood he was contacted because of concerns about Pinheiro’s involvement in

       2   References to dates are to the year 2012, unless otherwise stated.


                                               3.
negotiations with units within the sheriff’s department. According to Navarrette, he
never contacted any law enforcement agency about Pinheiro and never disclosed
information about him to law enforcement personnel.
       For years it had been rumored that Pinheiro was involved in a romantic
relationship with County employee Vanessa Salazar. On May 30, Paul Nerland, a
County personnel services manager who supervised Salazar, gave Salazar a written
reprimand for being absent without leave for being six minutes late to work, disappearing
for 20 minutes, and giving inconsistent accounts as to where she was to her immediate
supervisor, senior personnel analyst Larry Gomez. Gomez notified Nerland later that day
that Salazar was seen complaining about the disciplinary action to co-worker Hollis
Magill. Nerland interviewed Magill, who suspected there might be “domestic violence”
involving Salazar and Pinheiro. Magill referred Nerland to Amy Ryals, a County
personnel technician who Magill believed had more information that Ryals was afraid to
bring forward.
       Nerland and Bandy interviewed Ryals the following day. Ryals had been taking
notes on what Salazar told her and what Ryals observed. Ryals spoke of the relationship
between Salazar and Pinheiro, which she found disruptive and intimidating in the
workplace. She was afraid of Pinheiro and felt that her supervisor, Gomez, treated
Salazar more favorably than other employees because of her relationship with Pinheiro.
On one occasion, Salazar came to work with a cut lip and bruised face, which Salazar
attributed to Pinheiro. Ryals complained of working in a hostile environment which she
was afraid to report due to Pinheiro’s managerial position and Salazar’s preferential
treatment.3



       3Salazar denies that she reported to anyone at the County that she was the victim
of sexual harassment, domestic violence or workplace violence by Pinheiro, or that
Pinheiro harassed her or was physically violent toward her.


                                            4.
       Nerland and Bandy agreed that a preliminary investigation was necessary, which
Nerland conducted. Nerland interviewed witnesses, and presented a final report and
interview summaries to Bandy on June 15. It was clear to Bandy and Navarrette that an
official investigation was necessary.4 Because of Pinheiro’s high profile and visibility,
Nerland and Bandy recommended using an outside investigator. Navarrette suggested
Richard St. Marie, who Bandy thought was a perfect choice as he previously worked as
chief of security for the County and at that time, was employed by the Merced County
Sheriff’s Office. Nerland served as the primary liaison with St. Marie. Navarrette did
not make the final decision as to who would be assigned to investigate the matter and did
not direct St. Marie’s investigation in any way.
       In mid-July, Bandy notified Navarrette that the investigation was completed, or
nearing completion, and she was awaiting St. Marie’s report. Navarrette called St. Marie
and obtained an overall summary of his findings. Navarrette claimed he felt compelled to
formally advise Pinheiro’s sister, Bernice Seidel, who was the clerk to the board of




       4 Pinheiro claims the investigation was not conducted in good faith and was
commenced in retaliation for his having advised Navarrette and Bandy that they were
violating state and federal law by unlawfully interfering with the efforts of the Service
Employees International Union (SEIU) to represent its members, and supporting the
County’s correctional officers’ attempt to separate from the SEIU or facilitating their
acceptance into the Fresno Deputy Sheriff’s Association. On May 22, the SEIU filed an
unfair labor practice charge against the County, which alleged the County Sheriff had
interfered with SEIU’s efforts to represent its members and failed to remain neutral in the
dispute. This charge was amended in October to also allege that during Pinheiro’s
testimony at a September evidentiary hearing on the petition to separate from SEIU,
which was held before the Civil Service Commission, Pinheiro strongly suggested that
County personnel above him, namely Navarrette and Bandy, were involved in the
circulation, filing or processing of the petition. Both Navarrette and Bandy deny that
Pinheiro ever warned them about the legalities associated with the County’s position on
this issue.


                                             5.
supervisors and reported directly to Navarrette, of the investigation and pending report, as
he did not want her to learn of it through rumors or gossip.5
       On July 13, Navarrette called Seidel into his office and told her that Pinheiro was
being investigated for possible sexual harassment and workplace violence; he understood
Pinheiro was not very cooperative during the investigation; and while he had not seen the
report, the investigator had briefed him on it.6 Navarrette asked Seidel to call her brother,
Helder Pinheiro (Helder), to see if he would help, and said he would meet with Helder
and answer his questions. Seidel agreed to do so.
       Later that day, Helder called Navarrette and said Seidel had called him and he was
interested in discussing what was going on with Pinheiro.7 Navarrette met with Helder at
a Fresno restaurant.8 According to Navarrette, he told Helder he had been given an

       5 While Navarrette is Seidel’s ultimate supervisor, Seidel claims she had little day-
to-day interaction with him and she reported to another County employee. Seidel would
not characterize their relationship as a “close working relationship,” although Navarrette
did ask her to have lunch with him on many occasions. Navarrette, however, claims that
as clerk, Seidel was in his office frequently, and they had contact in the workplace at least
every other day. Navarrette considered her to be a friend.
       6According to both Pinheiro and Seidel, there was no reason for Navarrette to
communicate with Seidel regarding Pinheiro’s employment, as Pinheiro did not interact
with Seidel as part of their job duties, during the last two to three years of Pinheiro’s
employment with the County he had been largely estranged from his family and Seidel
had not spoken to him in some time. Pinheiro did not authorize Navarrette to speak with
Seidel or provide her with information, nor did he ask Seidel to speak to Navarrette on
his behalf. Pinheiro and Seidel worked in different departments, rarely saw each other,
and had spoken very little during the year prior to July.
       7 While Helder knew Navarrette, Helder would not describe their relationship as
“close.” They had been together at several social functions, and Navarrette had invited
him to lunch from time to time. Helder did not believe Navarrette had a reason to discuss
Pinheiro’s employment with him, noting that due to Pinheiro’s estrangement from the
family, he did not speak with Pinheiro often. Navarrette, however, considered Helder to
be a friend.
       8  Pinheiro did not authorize Helder, who worked for the Fresno Unified School
District, to speak on his behalf or represent him in dealings with the County, and never
authorized Navarrette to disclose personal information about him to Helder.

                                             6.
overview of the findings from the investigation report, which was due out the following
week, and the findings were not favorable. Helder said he would speak with Pinheiro to
get to the bottom of the allegations. Navarrette hoped that with Helder’s encouragement,
Pinheiro would be cooperative in trying to resolve the dispute.
       According to Seidel and Helder, Navarrette made the following statements during
his conversations with them: (1) Pinheiro seemed “to be angry and very volatile[,]” which
had been going on for some time; (2) he had spoken with Pinheiro about three weeks
before and there was “something going between this girl” and Pinheiro; (3) Pinheiro was
having an affair with Salazar, who had “big tits[,]” was “trashy looking,” and had been
involved with other deputies in the Sheriff’s Department”; (4) Pinheiro had stolen potato
chips from sandwich shops “and a deputy saw it”; (5) Pinheiro was sexually harassing his
co-worker, and was alleged to have hit her and treated her poorly; (6) when Seidel asked
Navarrette if he thought Pinheiro was having an affair, Navarrette responded he was
“having something with her” and Salazar had a young child; and (7) when Seidel asked
him if he was saying that was Pinheiro’s child, Navarrette stated he did not know.
       Navarrette directed Helder to contact Pinheiro and discuss the issues with him,
specifically whether he was willing to lose three months’ pay to resolve the issue in lieu
of termination. Helder agreed to do so. Later that evening, Helder met with Pinheiro,
told him the contents of his conversation with Navarrette, and asked Pinheiro to call
Navarrette the following day.
       On July 14, Helder called Navarrette and told him he had spoken to Pinheiro and
made clear that Pinheiro needed to come clean and explain himself. Helder said that
Pinheiro was confused and acted defensively because he was caught off guard. Pinheiro
called Navarrette a short time later and asked to talk to him about issues raised in the
investigation. Navarrette met with Pinheiro and Bandy to try to better understand
Pinheiro’s position.



                                             7.
       On July 26, Pinheiro was the victim of a robbery on the way home from a second
job he held as a “poker prop” at Club One Casino. Pinheiro claims he disclosed this job
to Bandy, who did not object to it. According to Pinheiro, two perpetrators, apparently a
prostitute and her pimp, jumped into his car when he was stopped and robbed him at
which he believed was gunpoint. When first arrested, the woman claimed Pinheiro had
solicited her for sex, and this claim was included in the draft police report. The
perpetrators, however, later recanted and pled guilty to robbery charges. There was no
further claim of improper conduct by Pinheiro, who stated the accusation was false.
       Bandy received St. Marie’s report around August 1. St. Marie stated in the report
that he was asked to investigate the following areas: (1) potential sexual harassment
involving Pinheiro and Salazar; (2) potential workplace violence with Salazar as the
victim; (3) favoritism or implied favoritism as a result of a relationship between Pinheiro
and Salazar; (4) whether promises were made as a result of the relationship; and
(5) evidence of misconduct, including dishonesty, insubordination, misuse of work time,
and workplace violence. With respect to Pinheiro, St. Marie sustained the allegations of
insubordination, dishonesty, misuse of work time, and release of confidential
information, but he could not determine whether workplace or domestic violence
occurred, as Pinheiro and Salazar were uncooperative, argumentative and evasive during
questioning, and Salazar denied telling co-workers that she had arguments with Pinheiro
or that Pinheiro injured her. The sexual harassment charge was not sustained because
Salazar stated she was not a victim of sexual harassment, and denied a sexual or dating
relationship with Pinheiro.
       Navarrette received the final investigative report, with an executive summary
outlining the findings and conclusions, on August 3. He reviewed the summary with
Pinheiro and told him that he was considering demoting him or, in the alternative, he
could voluntarily agree to a demotion. Pinheiro refused, so Navarrette promised to go
through the investigative materials in full before making a final decision. That same day,

                                             8.
Helder called Navarrette wanting to know what he could do to help his brother.
Navarrette discussed possible resolutions with Helder, including demotion, or transfer to
another department or position. Helder suggested Navarrette change the minimum
qualifications for a position in the Department of Social Services so Pinheiro would
essentially get a promotion without challenging the investigation. Navarrette declined.
Navarrette also spoke with Seidel. He told her that the investigation had been completed
and the allegations of sexual harassment, hostile work environment and domestic
violence had come back unfounded, but there were “inconsistencies.” According to
Seidel, Navarrette told her he could give Pinheiro a “small demotion” and, since Bandy
would be gone in a year, Pinheiro could apply for her job.
       On August 7, before Navarrette made a decision regarding corrective action, the
District Attorney contacted him and explained there were concerns about Pinheiro’s
truthfulness in connection with the robbery. The prosecutor in the case was told that
Pinheiro was soliciting an act of prostitution at the time of the robbery, and the case had
been assigned to a “more senior attorney,” who had represented the Fresno County
Prosecutor’s Association in labor negotiations with Pinheiro for a new union contract.
Both the District Attorney and Navarrette were concerned about Pinheiro’s credibility,
possible conflicts of interest, and problems with future negotiations. Navarrette was
advised that the robbery investigation disclosed that Pinheiro had a history of arrests for
solicitation – one in 1987 for soliciting an act of prostitution and a second in 2001 for
loitering for prostitution. The District Attorney gave Navarrette police reports regarding
Pinheiro, but according to Navarrette, they did not indicate they were draft reports and he
was not advised the information in them was incomplete or subject to change.
       That same day, Navarrette asked Helder to meet him at a Fresno coffee shop.
According to Helder, Navarrette had a large binder full of documents that he described as
St. Marie’s investigative binder and summary report, which he offered to Helder. He also
gave Helder the opportunity to read several emails between Navarrette and Pinheiro.

                                             9.
Navarrette told Helder the investigator found the claims of sexual harassment, workplace
violence, and domestic violence unsubstantiated, but there were some “inconsistencies.”
Navarrette handed Helder a “draft” police report of the July 26 robbery and told Helder
that Pinheiro had been soliciting anal sex from a prostitute and been “popped” by her
pimp, and Pinheiro had a “problem.” Finally, Navarrette said that Pinheiro had been
arrested in 1997 for solicitation of prostitution and had to enter a program for sexual
addiction.9 Navarrette stated he obtained this information from the District Attorney’s
office, and could “get in trouble” for sharing it with Helder. According to Navarrette,
however, Helder obtained a copy of the police report of the robbery on his own, without
Navarrette’s assistance. Helder told Seidel and Pinheiro about his conversation with
Navarrette.
       After speaking with Helder, Navarrette returned home and found Seidel parked in
front of his house with some tomatoes, which she gave to him. According to Seidel,
Navarrette told her that District Attorney Elizabeth Egan brought him a police report that
showed Pinheiro had been robbed, but the woman claimed he “was soliciting anal sex.”
Navarrette also stated that Pinheiro “was popped in 1997 for prostitution and that he
entered a program as he had a sexual addiction. Your brother has a problem – anal sex.”
Navarrette told Seidel he did not understand, “John professes to love his wife and
children yet he will go to the mat?” He also stated that Pinheiro would “win a couple
hundred thousand dollars, but his career is completely over. You know what I did to
Ralph Jimenez! I went after his girlfriend. That is exactly what I did to your brother
John. Bernice, I will get 95% of my pay, you will be fine, but your brother’s career is


       9 Navarrette denies making any statements about anal sex or sexual addiction to
Helder or Seidel. While he may have referred to an arrest in 1997, he misspoke because
he was provided documentation on a 1987 citation for solicitation of sex. Any reference
to a prior arrest was to emphasize his reasons for wanting a discreet resolution of the
matter to spare Pinheiro embarrassment.


                                            10.
over.” Navarrette, however, claims he told Seidel it appeared Pinheiro was a victim in
the robbery and it would have no bearing on the decision regarding his employment. The
next day, Seidel came to Navarrette’s office and stated that Pinheiro could explain facts
in the police report.
       Thereafter, Navarrette determined there was no point in continuing to attempt an
informal resolution. After reviewing all of the materials that were part of the
investigative report, he asked Bandy, who had the authority to hire and fire within the
personnel services division, for her recommendation regarding Pinheiro’s employment.
Bandy recommended termination based on St. Marie’s report, her personal observations
of Pinheiro’s behavior, and her understanding that he made untrue accusations about
Bandy during the investigation. Navarrette agreed with the recommendation. Navarrette
claims his decision was not based on the robbery, past arrests or citations for solicitation,
the alleged affair between Pinheiro and Salazar, or negotiations between the correctional
officers and SEIU, but instead was based on serious issues of dishonesty, lack of
cooperation, insubordination and lack of trust.
       Disciplinary Proceedings
       In August, Pinheiro was placed on administrative leave pending disciplinary
action. Pinheiro requested a Skelly10 hearing in connection with the order, which was
conducted on October 1 by then Chief Probation Officer Linda Penner. Penner
recommended the intended action to terminate Pinheiro’s employment. Thereafter,
Bandy signed the Order for Disciplinary Action (order), notifying Pinheiro that he was
dismissed from his position based on violations of County personnel rules.
       Pinheiro appealed the Skelly determination. In February 2013, several days of
hearings were held before the civil service commission (Commission). A reporter from
the Fresno Bee was present on the first day of the hearing. The hearing officer

       10   Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.


                                             11.
announced that the hearing was an open one unless the employee stipulated otherwise.
Pinheiro confirmed on the record that he was not requesting a closed hearing. Bandy saw
that the reporter had a copy of the order with him at the hearing. Bandy denied providing
the order to the media. Following the hearing, the Commission denied Pinheiro’s appeal,
as the County had just cause to terminate Pinheiro’s employment based on findings that
he engaged in theft, disclosed confidential information, and made untruthful statements.
       Navarrette was not involved in the procedures for separation, including
preparation of the order and the Skelly hearing. According to Navarrette, his actions in
this matter were in his capacity as CAO, including notifying Seidel of the pending
investigation. Navarrette claims that later contacts that Pinheiro’s family members
initiated were not part of the investigation, and he participated as a family friend trying to
resolve a difficult employment situation. Navarrette claims he did not disseminate any
documents regarding criminal activities or the robbery of Pinheiro to anyone, and never
contacted or spoke to anyone associated with the Fresno Bee or any media outlet about
Pinheiro. Navarrette denied making false statements regarding Pinheiro and explained
that his responses to Helder and Seidel were only his opinion on the seriousness of the
investigation based on information the investigator provided him.
       Navarrette was not involved in the investigation of Pinheiro, and he did not tell
St. Marie how to conduct his investigation or suggest the conclusions he should reach.
Navarrette did not discuss the investigation with anyone outside of County management
with the exception of Pinheiro’s siblings. He spoke to the siblings only to try to convince
Pinheiro to speak frankly about the issues and consider a way to resolve them. Navarrette
believed Helder and Seidel were communicating with their brother, and Pinheiro was
keeping them informed about the investigation.
       Bandy claimed she never disseminated any information regarding arrests or
citations outside the official investigation, and denied disclosing information regarding
the investigation except in the context of the official investigation. According to Bandy,

                                             12.
all of her communications concerning Pinheiro were made in an official capacity and in
compliance with the separation process, and she never made false statements regarding
him. Her recommendation for termination had nothing to do with a purported extra-
marital affair, union activities concerning the correctional officers’ efforts to sever
affiliation with SEIU, or any warnings Pinheiro allegedly made of illegal activity by the
County.
       Bandy’s Alleged Defamatory Statements
       Pinheiro claims that over the past few years before his dismissal, Bandy treated
him with disdain despite the positive evaluations he received, which he attributed to:
(1) Helder’s participation in an investigation of Bandy’s brother, who also worked for
FUSD, that resulted in her brother’s forced resignation from the district; and (2) Bandy’s
accusation to him that he was having an affair and her unsolicited statements to that
effect to third parties. According to Pinheiro, both Bandy and Navarrette openly
discussed, shared as fact, and republished the false statements Navarrette shared with
Helder and Seidel. He also asserted that Bandy shared false and defamatory statements
before, after and outside of the investigation, to County employees and others, that: (1) he
had taken Salazar on work-related trips to continue their alleged affair; (2) he had been
directed not to have contact with Salazar; and (3) he and Salazar were taking days off at
the same time so they could be together. Pinheiro also claimed Bandy made numerous
false and defamatory statements about his attitude and work performance, which were
calculated to harm his personal and professional reputations.
       Salazar claims that on a number of occasions before and outside the investigation,
she heard Bandy make factual assertions and accusations that she was having an affair
with Pinheiro. Salazar could remember two such incidents that occurred from 2010
through 2012, when the investigation began. The first was a meeting Salazar had with
Bandy and Nerland, when they advised her she had not received a promotion. During the
meeting, Bandy stated she, Nerland and other employees knew Salazar was having a

                                             13.
romantic relationship with Pinheiro, people saw the two together, and everyone was
talking about it. Bandy stated something to the effect that she knew it was more than just
rumors, and she and Pinheiro could ruin their careers at the County if they wanted to.
Salazar responded that she could not control what people see, and it seemed odd to make
these comments, because it suggested that was the reason she did not get the promotion.
Bandy made it clear that she was not asking about an affair or suggesting it was an
unfounded rumor; instead, she “believed” and “knew” they were having an affair, and she
and other County employees were talking about it.11
       The other incident occurred on May 24, when Salazar came into the office late.
Her supervisor, Gomez, told her that Bandy was looking for her, knew she was late, and
Bandy told him she “knew” Salazar was having an affair with Pinheiro, and she must
have been late because she was with him. Gomez told Salazar Bandy made specific
factual assertions that Salazar was “riding” with Pinheiro that day and was late due to
their purported sexual affair. Bandy, however, denies ever stating that she knew the two
were having an affair.
       This Lawsuit
       Pinheiro initiated this lawsuit against respondents on August 12, 2013, when he
filed his original verified complaint.12 On October 25, 2013, Pinheiro filed a first

       11 According to Bandy, this meeting occurred in November 2010. Bandy denies
ever stating that Pinheiro and Salazar were in a sexual relationship. Bandy had no
independent knowledge that the two were involved in an affair, although she believed
they were. Bandy denied making any employment decision affecting Pinheiro based on
an opinion or assumption of marital infidelity.
       12 The original complaint contained causes of action for wrongful termination,
retaliation, defamation, various theories of invasion of privacy, failure to maintain
records properly, improper disclosure of personal information from records, intentional
disclosure of personal information from a government record, violation of Labor Code
section 432.7, and intentional and negligent infliction of emotional distress. The original
complaint also named Ryals and St. Marie as defendants, who were dropped as
defendants in the first amended complaint.


                                            14.
amended verified complaint (FAC), alleging causes of action for defamation; invasion of
privacy under the theories of false light, intrusion, and public disclosure of private facts;
intentional disclosure of personal information from government records; and intentional
infliction of emotional distress (IIED).
       The FAC alleges that Navarrette and Bandy targeted Pinheiro for removal from his
position as the County’s labor relations manager after he warned them of their illegal
conduct in trying to break the SEIU and unlawfully assisting the correctional officers to
modify their bargaining unit, break away from the SEIU and either become independent
or join the Fresno Deputy Sheriff’s Association, and there were no grounds for his
termination. The FAC seeks relief for various causes of action that accrued against the
County and its employees to provide the cover of an investigation so that Navarrette and
Bandy could fire Pinheiro, and the unlawful conduct alleged therein resulted in the
improper disclosure of arrest, citation and investigative records – first to Navarrette,
Bandy and St. Marie, and then to other third parties, including Helder, Seidel, a local
union, and the local media.
       With respect to the defamation cause of action, the FAC alleges that respondents
made untrue oral and written statements regarding Pinheiro, including: (1) Pinheiro had
been having a sexual affair with Salazar for years; (2) Pinheiro shoplifted from fast food
restaurants located near the County’s office building; (3) Pinheiro had solicited, or
attempted to solicit, a prostitute when he was the victim of a robbery in July; (4) Pinheiro
was convicted of engaging prostitutes in 1987 and 2001, and convicted of crimes of
solicitation during those time periods; (5) Pinheiro shared confidential personnel
information with Salazar; (6) Pinheiro made threatening statements or gestures to Ryals
which caused her to fear for her safety; and (7) Pinheiro physically hit or punched
Salazar, and perpetrated domestic violence against her. The FAC alleges these false
statements were published to third parties, including Pinheiro’s family members, SEIU
representatives, law enforcement, and the general public and media, for the purpose of

                                             15.
damaging Pinheiro’s personal and professional reputation in the community, as well as to
justify the wrongful termination of Pinheiro’s employment, before, during and after any
investigation took place.
       The second cause of action for invasion of privacy, false light, alleges respondents
knew or should have known that the same false statements would be communicated to the
general public, and in fact were published to the general public through the local media,
including the Fresno Bee. The statements are alleged to have constituted an unwarranted
and unlawful invasion of privacy, and created an unfair, false and inaccurate description
of Pinheiro, which placed him in a false light to a large number of third persons,
including Pinheiro’s family, and to the general community.
       The third cause of action for invasion of privacy, intrusion, alleges that
respondents intentionally and without consent intruded into private and confidential
information from Pinheiro’s personnel and other County records, including records of
investigation, citation and arrest the District Attorney’s office maintained, which were
not for public viewing or consumption, and then disclosed that information to Pinheiro’s
family members, the public and the local media. The FAC alleges that Pinheiro had an
objectively reasonable expectation that the information would remain private and
confidential, and would not be disclosed or used against him without his consent.
       The fourth cause of action for invasion of privacy, public disclosure of private
facts, alleges that respondents publicly disclosed private facts about Pinheiro to his
family members, co-workers, the public and the local media, including personnel records,
arrest records, investigation records from government sources, and the contents of City
and County investigation reports, including that (1) Pinheiro shoplifted from fast food
restaurants, (2) he was soliciting or attempting to solicit a prostitute when he was a
robbery victim in July, and (3) he was arrested or cited for solicitation and loitering in
1987 and 2001.



                                             16.
       The last cause of action for IIED alleges that Navarrette and Bandy’s actions were
done intentionally and with the intent to inflict severe emotional distress on Pinheiro, and
in fact caused him to suffer severe emotional distress.13
       The Anti-SLAPP Motion
       Respondents filed a motion to strike the first through fourth causes of action for
defamation and invasion of privacy, and the last cause of action for intentional infliction
of emotional distress, under the anti-SLAPP statute.14 They argued that Pinheiro’s
claims arose from protected activity under (1) section 425.16, subdivision (e)(2), as the
alleged statements were made in connection with an issue under consideration or review
in an official proceeding, and (2) section 425.16, subdivision (e)(4), as the alleged
statements were made in connection with an issue of public interest. Respondents further
argued that to the extent the FAC alleges both protected and unprotected activity, such as
that Navarrette improperly disclosed information and made defamatory statements to
Pinheiro’s brother and sister, the alleged unprotected activity was “merely incidental” to
Pinheiro’s claims based on protected activity, and therefore respondents were still entitled
to anti-SLAPP protection.
       Respondents asserted that Pinheiro could not satisfy his burden to show a
substantial probability of prevailing on his claims for the following reasons:
(1) respondents are immune from liability under Government Code sections 821.6 and
822.2; (2) the litigation privilege of Civil Code section 47 bars the defamation claim;
(3) Pinheiro cannot prove respondents knew the alleged defamatory statements were false

       13The last cause of action for intentional infliction of emotional distress is labeled
the “Eleventh Cause of Action[,]” although it is actually the sixth cause of action alleged
in the FAC.
       14 The fifth cause of action for intentional disclosure of personal information from
government records was not subject to respondents’ anti-SLAPP motion. Respondents,
however, demurred to that cause of action. The trial court sustained the demurrer without
leave to amend.


                                             17.
or untrue; (4) since the defamation claim fails, so does the false light invasion of privacy
claim; (5) the intrusion into private affairs claim fails because Pinheiro did not have a
reasonable expectation of privacy in the records and any intrusion would not be highly
offensive to a reasonable person; (6) the claim for public disclosure of private facts fails
because the private facts objected to were truthful commentary on the activities of a
public official, were not communicated to the public at large, and were of legitimate
public concern; and (7) since the defamation and invasion of privacy claims fail, so does
the IIED claim.
       In his opposition to the motion, Pinheiro argued respondents failed to meet their
burden of showing that his claims arose from protected activity because the personnel
investigation was not an issue of public interest and the gravamen of his claims were
Navarrette’s and Bandy’s statements made before or outside the investigation. Pinheiro
further argued he had made a prima facie case of misconduct by respondents as:
(1) Navarrette’s and Bandy’s statements were not privileged, as they were not made in
connection with the Commission proceeding or the investigation; (2) he had a reasonable
expectation of privacy in his sexual affairs, personnel records and police reports; and
(3) respondents’ actions constitute intentional and outrageous conduct that supports a
cause of action for IIED.
       After oral argument on the motion, the trial court adopted its tentative ruling
granting it. The trial court found that protected speech was involved, as the FAC “paints
a picture of a man wrongfully pushed out of his job by a trumped up false set of
allegations fed to the public and media. The problem for plaintiff is that the process of
terminating him, as a public employee, had to be and was undertaken via an
investigati[on], hearing, and then a further Civil Service Commission proceedings – an
official government proceeding fully covered by Civil Code section 47. Statements made
in preparation for or to prompt investigation that might result in the initiation of official
proceedings [are] protected by [the] litigation privilege. Hagberg v. California Federal

                                              18.
Bank (2004) 32 Cal.4th 350, 368. [¶] The gravamen of this action is speech connected
with an official proceeding about a person who was a public figure in the County of
Fresno at the time, involved in labor negotiations of great public interest, where his
credibility was an important factor in success. The burden therefore shifts to plaintiff to
show the causes of action at issue have merit.”
       With respect to the merits, the trial court found that the defamation claim should
be stricken because (1) the “vast majority” of the statements “targeted” in the FAC fall
under the litigation privilege of Civil Code section 47; (2) the discussions with the
siblings occurred as a means to convince Pinheiro to settle the matter, thereby making
them privileged; (3) almost everything Navarrette and Bandy said about Pinheiro came
from other sources, which also were revealed to the siblings, so the statements were not
false; and (4) any remaining actionable defamation was negligible. The trial court further
found the privacy claims should be stricken because (1) Civil Code section 47 applied to
those claims as well, noting that Pinheiro consented to the public disclosure of
information by not requesting a closed Commission hearing, and (2) the information
disclosed did not involve private matters. The trial court did not rule on the various
evidentiary objections the parties raised.15


       15 With their reply, respondents filed nearly 100 written objections to Pinheiro’s
evidence. On appeal, respondents request this court to rule on these objections. The trial
court’s failure to rule indicates that it overruled the objections. (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 534 [in summary judgment context, objections the trial court did
not rule on are preserved for appeal; objecting party has burden to renew objections in
appellate court].) While respondents preserved this issue for appeal, they have failed to
meet their burden of demonstrating that the trial court’s implied overruling of their
objections was error, as they do not discuss each objection or set forth legal argument or
authority to support their challenge. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point
must be supported by argument and, if possible, by citation of authority].) Therefore,
they have abandoned this issue. (See, e.g., Salas v. California Dept. of Transportation
(2011) 198 Cal.App.4th 1058, 1074 [failure to demonstrate how each evidentiary ruling
was erroneous constitutes a forfeiture of challenge].)


                                               19.
                                        DISCUSSION
       The anti–SLAPP statute is intended to address a problem with meritless lawsuits
filed to “chill” the exercise of the constitutional right of free speech. (§ 425.16, subd.
(a).) As relevant here, section 425.16, subdivision (b)(1) states: “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 will prevail on the claim.”
       A court ruling on a motion under the SLAPP statute must go through a two-step
process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67
(Equilon Enterprises).) First, the court must determine whether the moving defendant
has made a threshold showing that the challenged causes of action arise from protected
activity, that is, activity by defendants in furtherance of their constitutional right of
petition or free speech. (Ibid.) The protected acts include: (1) written or oral statements
made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law; (2) written or oral statements 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) written or oral statements made in a place
open to the public or in a public forum in connection with an issue of public interest; or
(4) any other conduct in furtherance of the exercise of the constitutional rights of petition
or free speech in connection with a public issue or an issue of public interest. (§ 425.16,
subd. (e).)
       Second, if the court finds that the defendant has met its initial burden, it then
determines whether the plaintiff has demonstrated a probability of prevailing on its claim.
(Equilon Enterprises, supra, 29 Cal.4th at p. 67.) To satisfy this prong, “the plaintiff
‘must demonstrate that the complaint is both legally sufficient and supported by a

                                              20.
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.’ [Citations.] In deciding the question of potential
merit, the trial court considers the pleadings and evidentiary submissions of both the
plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the
credibility or comparative probative strength of competing evidence, it should grant the
motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker,
Covert & Chidester (2002) 28 Cal.4th 811, 821.)
       On appeal, we review the anti-SLAPP motion de novo to determine whether the
parties have met their respective burdens. (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3; Christian Research Institute v. Alnor (2007)
148 Cal.App.4th 71, 79.)
       Protected Activity
       With this background, we turn to the first step of the SLAPP analysis: whether
respondents met their burden of showing that the causes of action alleged arose from
protected activity.
       “In assessing whether a cause of action arises from protected activity, ‘ “we
disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or
gravamen of a plaintiff’s cause of action . . .”. . . . We assess the principal thrust by
identifying “[t]he allegedly wrongful and injury-producing conduct . . . that provides the
foundation for the claim.” [Citation.] If the core injury-producing conduct upon which
the plaintiff’s claim is premised does not rest on protected speech or petitioning activity,
collateral or incidental allusions to protected activity will not trigger application of the
anti-SLAPP statute. [Citation.]” [Citation.]’ [Citation.] ‘[T]he 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.’ [Citation.] [¶] When evaluating whether the defendant
has carried its burden under the first prong of the anti-SLAPP statute, ‘courts must be

                                              21.
careful to distinguish allegations of conduct on which liability is to be based from
allegations of motives for such conduct. “[C]auses of action do not arise from motives;
they arise from acts.” [Citation.]’ [Citation.] ‘ “The court reviews the parties’ pleadings,
declarations and other supporting documents to determine what conduct is actually being
challenged, not to determine whether the conduct is actionable.” ’ ” (Hunter v. CBS
Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1520.)
       Here, a review of the FAC reveals that the five causes of action that were the
subject of the anti-SLAPP motion are based on essentially the same injury-producing
conduct, namely the publication of defamatory statements and private information to
third parties, including Pinheiro’s family members, SEIU representatives, law
enforcement, the general public and the local media. Specifically, the FAC alleges that in
July and August, before the results of the investigation were provided to Bandy,
Navarrette told Pinheiro’s siblings that Pinheiro allegedly was having an affair with
Salazar, he had been arrested or cited for solicitation in 1987 and 2001, and he engaged in
similar conduct when he was a victim of robbery in July. The FAC further alleges that
Navarrette asked the siblings to talk to Pinheiro and convince him to either accept a
demotion or leave the County to “save his family” from embarrassment and shame. In
opposing the anti-SLAPP motion, Pinheiro produced evidence that Bandy made
statements before the investigation began that Pinheiro and Salazar were having an affair.
       The issue is whether this injury-producing conduct is protected activity under
either section 425.16, subdivision (e)(2) or (4). We begin with subdivision (e)(2), which
defines protected activity to include written or oral statements that are made in
connection with an issue that is under consideration or review at a proceeding authorized
by law. Where, as here, a defendant bases its anti-SLAPP motion on subparagraph (2) of
subdivision (e)(2), it “need not ‘separately demonstrate that the statement concerned an
issue of public significance.’ ” (Kibler v. Northern Inyo County Local Hosp. Dist. (2006)
39 Cal.4th 192, 198 (Kibler).)

                                            22.
       The parties agree that the investigation, Skelly hearing, and Commission hearing
were all official proceedings authorized by law. They disagree, however, on whether the
statements allegedly made to third parties were made in connection with an issue under
consideration or review in any of those proceedings. Pinheiro contends that Navarrette’s
and Bandy’s statements were made either before or outside the investigation, and did not
arise from or further the investigation. Respondents contend the statements were made as
part of the investigation and in anticipation of official proceedings.
       Communications related to, preparatory to, or in anticipation of litigation, are
protected speech for purposes of section 425.16. (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115 [petition-related statements are protected
under the anti-SLAPP statute].) A statement is in connection with litigation under section
425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is
directed to persons having some interest in the litigation. (Neville v. Chudacoff (2008)
160 Cal.App.4th 1255, 1266.)
       While Navarrette’s statements to Seidel and Helder arguably related to the
substantive issues in the investigation, they were not made to persons having an interest
in the investigation. Seidel and Helder were not witnesses to the alleged misconduct and
had no authority over Pinheiro’s position. Helder was not even a County employee.
Communications to people outside an employer’s internal investigation into an
employee’s alleged misconduct are not made in furtherance of one’s right of free speech.
(Robinson v. Alameda County (N.D. Cal. 2012) 875 F.Supp.2d 1029, 1050 [defendant’s
statements made to individuals outside of internal affairs investigation not protected
speech under anti-SLAPP statute].)
       Respondents contend the fact the siblings were not percipient witnesses does not
mean they were unconnected to official proceedings, citing Dove Audio, Inc. v.
Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777 (Dove Audio), and Ludwig v.
Superior Court (1995) 37 Cal.App.4th 8 (Ludwig). Their reliance on these cases,

                                              23.
however, is misplaced. In Dove Audio, the statement at issue was a law firm’s letter sent
to celebrities who had participated in the recording of an album, and charities who were
to benefit from the sales proceeds of that recording, seeking support for its petition to the
Attorney General for an investigation of the plaintiff’s royalty payments to those
charities. (Dove Audio, supra, 47 Cal.App.4th at pp. 779-780, 784.) The celebrities and
charities clearly had an interest in the law firm’s efforts to obtain royalties to which they
arguably were entitled. In Ludwig, the court determined that the defendant’s activities of
encouraging other to file lawsuits over, and speak out against, a mall development, were
protected under section 425.16, as they involved matters of public interest. (Ludwig,
supra, 37 Cal.App.4th at pp. 14-15, 18.) In contrast here, with respect to the applicability
of section 425.16, subdivision (e)(2), the issue is not whether the statements were made
on a matter of public interest, but whether they were made in connection with official
proceedings. Given that the statements were made to third parties who did not have an
interest in the litigation, they were not.
       Respondents assert that there are “myriad examples of circumstances where
comparable lawsuits were stricken as SLAPP suits,” citing to Miller v. City of Los
Angeles (2008) 169 Cal.App.4th 1373, Kibler, supra, 39 Cal.4th 192, and Hansen v.
Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537. But none of
these cases involved statements made to third parties who did not have an interest in the
investigation or official proceeding at issue.
       Respondents contend that Navarrette’s conversations with Pinheiro’s siblings were
connected to the investigation because they were settlement discussions, which are
entitled to protection under the litigation privilege of Civil Code section 47.16 Although

       16 Civil Code section 47 states, in pertinent part: “A privileged publication or
broadcast is one made: [¶] . . . [¶] (b) In any . . . (2) judicial proceeding, (3) in any other
official proceeding authorized by law, . . . ” California courts have given the privilege
expansive application. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15,
29.)


                                              24.
the anti-SLAPP statute and the litigation privilege are not coextensive, courts may
“look[] to the litigation privilege as an aid in construing the scope of subdivision (e)(1)
and (2) with respect to the first step of the two-step anti-SLAPP inquiry – that is, by
examining the scope of the litigation privilege to determine whether a given
communication falls within the ambit of subdivisions (e)(1) and (2).” (Flatley v. Mauro
(2006) 39 Cal.4th 299, 323.)
       “ ‘The usual formulation [of the litigation privilege] is that [it] applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that
have some connection or logical relation to the action.’ [Citation.] [¶] The litigation
privilege is absolute; it applies, if at all, regardless whether the communication was made
with malice or the intent to harm. [Citation.] . . . [T]he privilege has been extended to . . .
all torts other than malicious prosecution. [Citations.] . . . [¶] If there is no dispute as to
the operative facts, the applicability of the litigation privilege is a question of law.
[Citation.] Any doubt about whether the privilege applies is resolved in favor of applying
it.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912–913 (Kashian).)
       The privilege, which is both absolute and broadly construed, has been held to
apply to statements made in connection with proposed litigation that is “contemplated in
good faith and under serious consideration.” (Action Apartment Assn., Inc. v. City of
Santa Monica (2007) 41 Cal.4th 1232, 1251; Blanchard v. DIRECTV, Inc. (2004) 123
Cal.App.4th 903, 919.) It applies to demand letters and attorneys’ prelitigation
communications. (Dove Audio, supra, 47 Cal.App.4th at p. 781.) And, so long as the
communication is connected to or bears a logical relationship with proposed litigation, it
applies without regard to “motives, morals, ethics or intent.” (Silberg v. Anderson (1990)
50 Cal.3d 205, 220; Kashian, supra, 98 Cal.App.4th at p. 913 [privilege applies
“regardless [of] whether the communication was made with malice or the intent to
harm”].)

                                              25.
       Here, Navarrette’s communications to the siblings were not the type of pre-
litigation communications subject to the litigation privilege. According to Navarrette,
when he first spoke with Seidel, he did so because he “felt compelled” to advise her of
the investigation and report as he did not want her to learn of it through rumors or gossip,
not because she had some connection to the investigation or settlement authority. He first
met with Helder and gave him an overview of the findings because he hoped that with
Helder’s encouragement, Pinheiro “would be forthcoming and cooperative in trying to
resolve the dispute.” Navarrette’s later contacts with the siblings “were not part of any
investigation and [his] participation was as a family friend trying to resolve a difficult
employment situation.” He spoke with them to try to have them convince Pinheiro “to
speak frankly about the issues and to consider a way to resolve them.”
       While Navarrette spoke to the siblings because he hoped they would encourage
Pinheiro to accept a quiet resolution of the investigation, Navarrette was not speaking to
them as a representative of the County, but rather as a friend. There is no evidence that
the siblings were authorized representatives of Pinheiro with respect to the investigation
and subsequent proceedings involving his dismissal. In this situation, they merely acted,
at best, as conduits of Navarrette’s message that Pinheiro was in serious trouble and
should be open to resolving the matter. Navarrette’s statements to the siblings were not
covered by the litigation privilege. Accordingly, they do not constitute protected activity
under section 425.16, subdivision (e)(2).
       Alternatively, respondents contend that Navarrette’s statements to the siblings fall
into the last category of section 425.16, subdivision (e), because they were made “in
furtherance of the exercise of . . . the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(4).) Respondents
offer several theories to support their contention. They argue the alleged statements are
protected because they pertain to the following issues of public interest: (1) the
qualifications of, and Pinheiro’s position as, the County’s labor negotiator;

                                             26.
(2) misconduct by government officials in the conduct of public business; (3) labor
negotiations affecting public salaries and benefits, and potential conflicts of interest in
bargaining units; and (4) workplace safety and domestic violence. They also contend that
the public has an interest in Pinheiro’s conduct because he is a limited public figure.
Respondents assert that since all of the alleged misconduct was related to an official
investigation into wrongdoing, which is in the public interest, section 425.16 applies.
       “Section 425.16 does not define ‘public interest’ or ‘public issue.’ . . . Some courts
have noted commentary that ‘ “ ‘no standards are necessary because [courts and
attorneys] will, or should, know a public concern when they see it.’ ” ’ ” (Cross v.
Cooper (2011) 197 Cal.App.4th 357, 371-372.) Courts have broadly construed the term
“public interest” “to include not only governmental matters, but also private conduct that
impacts a broad segment of society and/or that affects a community in a manner similar
to that of a governmental entity.” (Damon v. Ocean Hills Journalism Club (2000)
85 Cal.App.4th 468, 479.)
       Generally, the definition of “statements made in connection with a public issue”
focuses on whether the statements: (1) concern a person or entity in the public eye;
(2) relate to conduct that could directly affect a large number of people beyond the direct
participants; or (3) involve a topic of widespread, public interest. (Wilbanks v. Wolk
(2004) 121 Cal.App.4th 883, 898 (Wilbanks); Rivero v. American Federation of State,
County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.) As to
the last category, not only must the statement refer to a subject of widespread public
interest, it also must contribute to the public debate in some manner. (Wilbanks, supra,
121 Cal.App.4th at p. 898.) It has been held that where an issue is not of interest to the
public at large, but rather to a limited but definable portion of the public, “the
constitutionally protected activity must, at a minimum, occur in the context of an ongoing
controversy, dispute or discussion, such that it warrants protection by a statute that
embodies the public policy of encouraging participation in matters of public

                                             27.
significance.” (Du Charme v. International Brotherhood of Electrical Workers, Local 45
(2003) 110 Cal.App.4th 107, 119.)
       Not every statement about a person in the public eye is sufficient to meet the
public interest requirement of section 425.16, subdivision (e)(4). (Albanese v. Menounos
(2013) 218 Cal.App.4th 923, 936.) Instead, “ ‘there should be a degree of closeness
between the challenged statements and the asserted public interest. The assertion of a
broad and amorphous public interest is not sufficient. Moreover, the focus of the
speaker’s conduct should be the public interest, not a private controversy.’ ” (Ibid.)
       At best, the evidence in this case shows some public interest in Pinheiro’s role as
the County’s chief labor negotiator. But there is no evidence of a public controversy
concerning him when Navarrette spoke with Pinheiro’s siblings, or when Bandy made
statements concerning an alleged affair. The statements did not concern Pinheiro’s
performance as a labor negotiator or implicate him in misconduct relative to his position.
Moreover, Navarrette did not make the statements as part of, or to engender, a discussion
on a public issue; instead, he made them in an effort to resolve the matter informally and
privately. While, as respondents point out, Pinheiro permitted a media representative to
attend the Commission hearing in February 2013, and newspaper articles were published
in 2013 regarding that hearing and his subsequent lawsuits, his alleged misconduct was
not public when the statements were made.
       Even if Pinheiro was a limited purpose public figure, he lost protection for his
reputation only to the extent Navarrette’s and Bandy’s statements related to his role in a
public controversy. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253
[explaining that a limited purpose public figure is someone who “ ‘voluntarily injects
himself or is drawn into a particular public controversy and thereby becomes a public
figure for a limited range of issues.’ [Citation.] Unlike the ‘all purpose’ public figure,
the ‘limited purpose’ public figure loses certain protection for his reputation only to the
extent that the allegedly defamatory communication relates to his role in a public

                                             28.
controversy.”]; see Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1190.) The only
public controversies that Pinheiro arguably was involved in at the time the statements
were made were labor negotiations with various employee groups. The statements,
however, certainly had nothing to do with negotiations Pinheiro was engaging in on the
County’s behalf.
       Respondents assert that domestic violence, workplace safety, and curbing sexual
harassment and abuse, are all matters of public interest. While this may be true, we agree
with Pinheiro that this case, at least at the time the statements at issue allegedly were
made, involved a workplace dispute among a small number of people. Such disputes do
not implicate a broader public interest subject to a motion to strike under section 425.16,
subdivision (e). (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501,
1511 [holding that while elimination of sexual harassment implicates a public interest, a
private employer’s investigation into a harassment claim that concerned a small group of
people did not rise to a public interest under section 425.16].)
       Respondents argue that even if Bandy’s and Navarrette’s statements were not
protected under either section 425.16, subdivision (e)(2) or (e)(4), respondents still are
entitled to anti-SLAPP protection because the statements were merely incidental to
Pinheiro’s “core claims” of an alleged pretextual investigation and termination, which
constitute protected activity. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon
Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245 [where a cause of action
alleges both protected and unprotected activity, the cause of action is “ ‘subject to section
425.16 unless the protected conduct is “merely incidental” to the unprotected conduct’
”].) But as we have already explained, statements to third parties, including Navarrette’s
and Bandy’s statements, are the thrust or gravamen of Pinheiro’s claims. While the FAC
does contain detailed allegations of the circumstances surrounding the investigation and
Pinheiro’s termination, including his retaliation claim, a close examination of each cause



                                             29.
of action reveals that it is the statements to third parties, not the investigation or his
termination, that constitute the thrust or gravamen of his claims.
       In sum, the gravamen of Pinheiro’s claims was not protected activity under the
anti-SLAPP statute. Because respondents failed to demonstrate the claims against them
arose from protected activity, we have no occasion to address the merits of those claims.
(Loanvest I, LLC v. Utrecht (2015) 235 Cal.App.4th 496, 505.)
                                       DISPOSITION
       The judgment is reversed. Costs on appeal are awarded to Pinheiro.



                                                                    _____________________
                                                                        GOMES, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




                                               30.
