Filed 4/30/20
            CERTIFIED FOR PARTIAL PUBLICATION


 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE

BALUBHAI PATEL et al.,                    B291695

       Plaintiffs and Appellants,         (Los Angeles County
                                          Super. Ct. No. BC681074)
       v.

MANUEL CHAVEZ,

       Defendant and Respondent.



     APPEAL from a judgment of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.

                    ___________________________

     Frank A. Weiser for Plaintiffs and Appellants.
     Law Office of Eugene Lee and Eugene D. Lee for Defendant
and Respondent.


       
        Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of the Factual and Procedural Summary post, and the Discussion
post, parts C. and D.
      Plaintiffs and appellants Balubhai Patel, DTWO & E, Inc.
(DTWO), and Stuart Union, LLC (collectively, plaintiffs) appeal
from the trial court’s order granting defendant and respondent
Manuel Chavez’s motion to strike plaintiffs’ complaint against
Chavez, pursuant to the anti-SLAPP statute, Code of Civil
Procedure section 425.16. Plaintiffs’ complaint alleges that
Chavez, plaintiffs’ former employee, falsely testified at a Labor
Commissioner’s hearing on wage claims Chavez filed against
plaintiffs, which the Labor Commissioner ultimately decided
in Chavez’s favor. On this basis, plaintiffs’ complaint asserts
a federal civil rights cause of action against all defendants under
section 1983 of title 42 of the United States Code (section 1983).
The complaint also contains a petition for writ of mandate
addressed to all defendants seeking reversal of the Labor
Commissioner’s award.1
      On appeal, plaintiffs argue that the anti-SLAPP statute does
not apply to federal causes of action, and that even if it did apply,
plaintiffs met their burden of establishing a probability of success.

      1 The  complaint also named two Labor Commissioner officials
as defendants to all causes of action. Chavez’s anti-SLAPP motion
seeks to strike “the complaint,” not just the causes of action alleged
against Chavez, and the language of the court’s order grants
the motion without caveat. (Capitalization and boldface omitted.)
But the Labor Commissioner officials named as defendants did not
join Chavez’s anti-SLAPP motion, and the court has since sustained
their demurrer to a first amended complaint filed while Chavez’s
motion to strike was pending, leading the parties to stipulate
to dismissing them as incorrectly named parties to this appeal.
Thus, the record is inconsistent with reading the order on appeal
literally, and we instead construe it as striking the complaint only
to the extent it alleges causes of action against Chavez.




                                  2
We disagree on both points and affirm the trial court’s order
granting plaintiffs’ motion to strike the complaint to the extent it
asserts causes of action against Chavez.

           FACTUAL AND PROCEDURAL SUMMARY
      From 2002 to 2016, Chavez worked as an on-site property
manager of the Stuart Hotel, a residential hotel owned and
operated by plaintiffs.

      A.    Labor Commissioner Proceedings Against
            Plaintiffs
      In October 2015, Chavez filed a wage claim with the
California Labor Board, alleging plaintiffs paid Chavez less
than minimum wage and engaged in other wage claim violations.
On January 12, 2017 and March 6, 2017, a Berman hearing2 took
place regarding Chavez’s claims against plaintiffs. Chavez and
others testified under oath. (See Cal. Code Regs., tit. 8, § 13505


      2 A Berman hearing is “a dispute resolution forum
established by the Legislature to assist employees in recovering
wages owed.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th
1109, 1124.) “ ‘A Berman hearing is conducted by a deputy
[Labor] [C]ommissioner, “. . . [and] is designed to provide a speedy,
informal, and affordable method of resolving wage claims. In brief,
in a Berman proceeding the [C]ommissioner may hold a hearing
on the wage claim; the pleadings are limited to a complaint and
an answer; . . . The [C]ommissioner must decide the claim within
15 days after the hearing. ([Lab. Code,] § 98.1.)” [Citation.]
The hearings are not governed by the technical rules of evidence,
and any relevant evidence is admitted “if it is the sort of evidence
on which responsible persons are accustomed to rely in the
conduct of serious affairs.” (Cal. Code Regs., tit. 8, § 13502.)’ ”
(Sonic-Calabasas A, Inc. v. Moreno, supra, 57 Cal.4th at p. 1128.)




                                   3
[at Berman hearing, “[o]ral evidence shall be taken only on oath
or affirmation”].) On September 26, 2017, the Labor Commissioner
issued a ruling in Chavez’s favor, awarding him approximately
$235,000 in unpaid wages, penalties, and interest.

      B.       Plaintiffs’ Lawsuit
       On October 26, 2017, plaintiffs brought the action underlying
this appeal3 against Chavez and two Labor Commissioner officials,
Maria Huerte, who had presided over the Berman hearing, and
Julie Su. The complaint alleges that, at the Berman hearing,
Chavez “produced a falsified report of the claimed monies owed[,]
falsely testified and gave perjured testimony in support of his
complaint.” The complaint further alleges that “[p]laintiffs
presented competent and credible evidence at the hearing that no
monies were owed to [Chavez] on his complaint,” and that the Labor
Commissioner’s ruling was illegal and/or incorrect in various ways.
       The complaint characterizes this conduct by all defendants
as a “state action” that “violated the constitutional and civil rights
of plaintiffs,” as a result of which plaintiffs suffered damages.
Based thereon, the complaint asserts a section 1983 cause of
action and seeks $10 million in damages from Chavez, Su, and
Huerte. The complaint also contains a petition—addressed to
all defendants—“[f]or a writ of mandate vacating and reversing
the [Labor Commissioner’s decision].” The complaint alleges this


      3 This was not the first lawsuit DTWO had filed against
Chavez based on his wage claims. In December 2015, DTWO
filed and served a complaint against Chavez, alleging Chavez
was an independent contractor who had stolen hotel rental income
and seeking an accounting of such income. DTWO dismissed the
suit the day before trial.




                                     4
petition is “pursuant to . . . Labor Code [s]ection[ ] 98.2, and/or . . .
Code of Civil Procedure [s]ection 1094.5” and claims that
“[p]laintiffs are entitled to a de novo hearing on this matter.”

      C.     Procedural History Following Complaint
       In November 2017, Huerte and Su filed a demurrer. Shortly
thereafter, Chavez filed the instant anti-SLAPP motion seeking
to strike the complaint. Chavez argued that the causes of action
arose solely from Chavez’s testimony, which is protected conduct,
and that therefore, as a matter of law, plaintiffs could not show a
likelihood of success.
       On June 11, 2018, the trial court held a hearing on Chavez’s
anti-SLAPP motion. In an order granting the motion that same
day, the court concluded that the causes of action in the complaint
arose from conduct protected under the anti-SLAPP statute,
namely “testimony made in the underlying litigation before the
Labor Commission[er].” It further concluded that, under the
requisite anti-SLAPP analysis, this shifted the burden to plaintiffs
to show a probability of success, and that plaintiffs could not
do so, because “[Chavez’s] [s]tatements [during the Berman
hearing] are absolutely privileged under Civil Code [section] 47,
[subdivision] (b)—the [l]itigation [p]rivilege.”
       Plaintiffs timely appealed the order.




                                     5
                           DISCUSSION
      Plaintiffs argue that the trial court erred in granting
Chavez’s anti-SLAPP motion because the statute does not apply to
federal causes of action brought in state court. In the alternative,
plaintiffs argue that the trial court incorrectly concluded that
plaintiffs failed to show a probability of success on their writ of
mandate and section 1983 claims against Chavez, as is required
under the applicable anti-SLAPP analysis. We disagree with both
arguments.

      A.    Anti-SLAPP Analytical Framework
       In ruling on an anti-SLAPP motion, a court is required to
engage in a two-pronged analysis. First, a court must determine
whether the complaint alleges protected free speech or petitioning
activity, and whether the claims the movant seeks to strike
“aris[e] from” such protected activity. (Baral v. Schnitt (2016)
1 Cal.5th 376, 396 (Baral); Navellier v. Sletten (2002) 29 Cal.4th
82, 89.) If so, the burden shifts to the plaintiff to establish
a prima facie showing of merit in “ ‘a summary-judgment-like
procedure.’ ” (Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 278, 291 (Soukup).) Any claims and/or allegations
as to which the plaintiff fails to make such a prima facie showing
must be stricken. (Baral, supra, 1 Cal.5th at p. 396.)
       On appeal, we review a trial court’s decision regarding
an anti-SLAPP motion de novo, “engaging in the same two-step
process.” (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257,
266–267, disapproved on another point in Park v. Board of Trustees
of California State University (2017) 2 Cal.5th 1057, 1071.) In so
doing, we consider “the pleadings, and supporting and opposing




                                  6
affidavits . . . upon which the liability or defense is based.” (Code
Civ. Proc., § 425.16, subd. (b)(2).)

      B.    The Anti-SLAPP Statute Applies to Section 1983
            Claims Brought in State Court
       Plaintiffs argue that “[i]t is well established, and undisputed,
that federal claims are not subject to California’s Anti[-SLAPP]
statute.” We disagree. The cases plaintiffs cite for this proposition
address “the applicability of the anti-SLAPP statute to claims filed
in federal court,” not state court. (See, e.g., Globetrotter Software v.
Elan Computer Group (N.D.Cal. 1999) 63 F.Supp.2d 1127, 1129,
italics added.)
       An analysis of whether to apply the anti-SLAPP statute
to a federal claim in state court begins with the observations
that the anti-SLAPP statute is a procedural law, rather than
a substantive immunity (see Briggs v. Eden Council for Hope
& Opportunity (1999) 19 Cal.4th 1106, 1121 [anti-SLAPP
statute affords “procedural protections”]; San Diegans for Open
Government v. San Diego State University Research Foundation
(2017) 13 Cal.App.5th 76, 95 [“the anti-SLAPP statute does
not immunize or insulate defendants from any liability . . . [i]t only
provides a procedure for weeding out, at an early stage, such claims
that are meritless”] (italics omitted)), and that a forum generally
applies its own procedural law to cases before it. (See Felder v.
Casey (1988) 487 U.S. 131, 138 (Felder).) As such, the anti-SLAPP
statute will apply to adjudication of a federal claim in state court
unless either (1) “the federal statute provides otherwise” (Chavez v.
Keat (1995) 34 Cal.App.4th 1406, 1413–1414 (Chavez)), or (2) the
anti-SLAPP statute “affect[s] plaintiffs’ substantive federal rights,”
and is thus preempted. (County of Los Angeles v. Superior Court




                                   7
(2006) 139 Cal.App.4th 8, 17 (County of Los Angeles), citing Felder,
supra, 487 U.S. at p. 138.) Neither is the case here.
       As to the first possibility, “[n]othing in section 1983
imposes federal procedural law upon state courts trying civil
rights actions.” (Chavez, supra, 34 Cal.App.4th at p. 1414.) On
this basis, California courts have held that the anti-SLAPP statute
does apply to federal section 1983 claims a plaintiff chooses to file
in California state court. (See Bradbury v. Superior Court (1996)
49 Cal.App.4th 1108, 1117–1118 (Bradbury); Vergos v. McNeal
(2007) 146 Cal.App.4th 1387, 1392, fn. 4 (Vergos).)
       Published cases do not appear to have fully analyzed
the second possibility, however. In Bradbury, for example, the
court rejected a claim that it would “violate[ ] federal substantive
law” to apply the anti-SLAPP statute to a federal civil rights
action brought in state court, but relied only on the procedural
versus substantive distinction in Chavez, supra, 34 Cal.App.4th
at pages 1413–1414. (Bradbury, supra, 49 Cal.App.4th at
pp. 1117-1118; see also Vergos, supra, 146 Cal.App.4th at p. 1392,
fn. 4 [relying on Bradbury]; Tichinin v. City of Morgan Hill (2009)
177 Cal.App.4th 1049, 1055–1056 [relying on Bradbury and
Vergos].) We analyze the second possibility now and conclude
that section 1983 does not preempt application of the anti-SLAPP
statute to section 1983 claims in state court.
       When a plaintiff chooses to bring a federal claim in
state court, “state rules of evidence and procedure apply unless
application of those rules would affect plaintiffs’ substantive
federal rights” (County of Los Angeles, supra, 139 Cal.App.4th at
p. 17), and thereby “ ‘ “stan[d] as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress” ’ ”
in enacting the underlying federal statute. (Felder, supra, 487 U.S.
at p. 138, quoting Perez v. Campbell (1971) 402 U.S. 637, 649.)



                                  8
This is not the case with our state’s anti-SLAPP statute and
section 1983. Code of Civil Procedure section 425.16 applies
neutrally to all types of causes of action and does not specifically
target government conduct. (See Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, 652 [“all kinds of claims
could achieve the objective of a SLAPP suit”]; cf. Felder, supra,
487 U.S. at pp. 144–145 [state notice-of-claim statutes applying
only to state government action preempted by section 1983, because
government defendants are “the very persons and entities Congress
intended to subject to liability” via section 1983].) The purpose
of section 1983 claims is to “serve as an antidote to discriminatory
state laws, to protect federal rights where state law is inadequate,
and to protect federal rights where state processes are available in
theory but not in practice.” (Williams v. Horvath (1976) 16 Cal.3d
834, 841.) Plaintiffs have identified no basis on which we might
conclude that the expedited summary-judgment-like procedure
created by the anti-SLAPP statute might “ ‘ “stan[d] as an obstacle
to the accomplishment and execution of ” ’ ” this purpose. (Felder,
supra, at p. 138.)
       Of course, because an anti-SLAPP motion automatically stays
discovery, a plaintiff may not have had the benefit of full discovery
when defending the merits of his section 1983 claim under this
expedited procedure. (See Code Civ. Proc., § 425.16, subd. (g).)
But a court may permit discovery during the pendency of an
anti-SLAPP motion when the court deems it necessary: “Courts
deciding anti-SLAPP motions . . . are empowered to mitigate their
impact by ordering, where appropriate, ‘that specified discovery
be conducted notwithstanding’ the motion’s pendency.” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66,
quoting Code Civ. Proc., § 425.16, subd. (g).) More importantly,
the “second-step burden” a plaintiff may be forced to meet without



                                  9
the benefit of full discovery “is a limited one. . . . [T]he bar sits
low[ ], at a demonstration of ‘minimal merit’ [citation]. At this
stage, ‘ “[t]he court does not weigh evidence or resolve conflicting
factual claims. Its inquiry is limited to whether the plaintiff has
stated a legally sufficient claim and made a prima facie factual
showing sufficient to sustain a favorable judgment. It accepts the
plaintiff ’s evidence as true, and evaluates the defendant’s showing
only to determine if it defeats the plaintiff ’s claim as a matter
of law.” ’ ” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 891.) Moreover, a court will require a plaintiff to make this
minimal showing only after the defendant has established under
the first prong that the plaintiff ’s lawsuit arises from protected
activity. Finally, unlike many of the procedural statutes courts
have concluded are preempted, the anti-SLAPP statute does
not “condition ‘. . . [¶] . . . plaintiff ’s right of recovery under . . .
section 1983’ ” upon whether he complied with the anti-SLAPP
statute (County of Los Angeles, supra, 139 Cal.App.4th at p. 18),
but rather, on whether the plaintiff has established some
probability that he has a right to recovery at all under section 1983.
(Cf. Felder, supra, 487 U.S. at p. 144 [state notice-of-claim statute
effectively created a “condition precedent” to bringing a federal
claim that was unrelated to the merits of the claim].) Thus, the
enforcement of anti-SLAPP discovery restrictions in section 1983
actions will not “frequently and predictably produce different
outcomes . . . based solely on whether the claim is asserted in state
or federal court.” (Felder, supra, at p. 131.)
       We must further consider whether the anti-SLAPP law’s
mandatory attorney fee shifting provisions (Code Civ. Proc.,
§ 425.16, subd. (c))—either individually or considered together
with the discovery restrictions noted above—unduly burden a
substantive federal right when applied to section 1983 claims.



                                    10
We conclude they do not. These fee shifting provisions provide
that “a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney’s fees and costs. If the court
finds that a special motion to strike is frivolous or is solely intended
to cause unnecessary delay, the court shall award costs and
reasonable attorney’s fees to a plaintiff prevailing on the motion.”
(Code Civ. Proc., § 425.16, subd. (c)(1).) Although the potential for
such fee-shifting might discourage some plaintiffs from pursuing
section 1983 claims, that possibility does not rise to the level of
defeating a plaintiff ’s ability to vindicate his federal rights through
a section 1983 claim, particularly in light of the low bar plaintiffs
must meet in order to save such claims and avoid attorney fees
under the anti-SLAPP statute. The anti-SLAPP fee-shifting
provisions are also partially reciprocal, such that defendants
may be wary of bringing anti-SLAPP motions for the same reasons
plaintiffs may be wary of filing lawsuits potentially subject to such
motions. (See Code Civ. Proc., § 425.16, subd. (c)(1).) Plaintiffs
have cited no authority suggesting that federal law preempts
every state procedure that may place some additional burden on a
plaintiff who choses to vindicate a federal right in state court. The
procedural devices in the anti-SLAPP statute do not rise to the level
necessary for them to “defeat” a “federal right.”
       The trial court therefore correctly applied the anti-SLAPP
statute to plaintiffs’ section 1983 claim.

      C.    Prong One: All Claims Against Chavez Arise
            from Protected Conduct
       We therefore turn to the first prong of the anti-SLAPP
analysis, under which we must determine whether the causes
of action against Chavez arise from activity protected under the
anti-SLAPP statute.



                                  11
       The complaint alleges no conduct by Chavez other than
his having testified falsely at the Berman hearing. Testimony
offered during “official proceedings”—even if false—“constitute[s]
the ‘valid exercise’ of the constitutional right of free speech to
which the Legislature referred in [the anti-SLAPP statute].”
(Haight Ashbury Free Clinics, Inc. v. Happening House Ventures
(2010) 184 Cal.App.4th 1539, 1549; see Code Civ. Proc., § 425.16,
subd. (e)(1) [reference to “ ‘act in furtherance of a person’s right of
petition or free speech’ ” in the statute “includes . . . any written or
oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law”].)
       Plaintiffs briefly argue the complaint “is alleging far
more than just Chavez’s petitioning activity” because “[t]he
claims include a claim that the bond undertaking under . . .
Labor Code [section] 98[, subdivision] (b) (for filing this action)
unconstitutionally burdens [plaintiffs’] petition[ing] rights in this
case, and that the . . . wage award illegally applied Labor Code
[section] 98[, subdivision] (b) retroactively to . . . Patel.” This
argument reflects a legal characterization of Chavez’s protected
conduct; it does not identify additional, nonprotected conduct.
“In deciding whether the initial ‘arising from’ requirement is met,
a court considers ‘the facts upon which the liability or defense is
based’ ”—not legal characterizations of such facts. (Navellier v.
Sletten, supra, 29 Cal.4th at p. 89 (italics added), citing Code
Civ. Proc., § 425.16, subd. (b)(2).) Thus, the trial court correctly
concluded that the causes of action against Chavez arise from
conduct protected by the anti-SLAPP statute.




                                   12
      D.    Prong Two: The Trial Court Correctly Concluded
            Plaintiffs Failed to Establish a Probability of
            Success on Their Claims Against Chavez
      In the second prong of the anti-SLAPP analysis, plaintiffs
bear the burden of establishing a probability of prevailing on the
claims arising from protected activity. The trial court concluded
that plaintiffs failed to do so because their claims were barred
as a matter of law by the California litigation privilege. Plaintiffs
argue on appeal that this state law privilege cannot bar a federal
section 1983 claim. But even if the state law litigation privilege
does not apply, plaintiffs’ claims still would not assert any legally
viable cause of action against Chavez.

            1.    Section 1983 Claim
       Section 1983 “preserves constitutional rights from
infringement by persons who act under federal or state
authority, not private citizens who commit wrongful acts.”
(Spampinato v. M. Breger & Co. (2d Cir. 1959) 270 F.2d 46, 49.)
Thus, “[a] prerequisite for any relief under section 1983 is that
the defendant acted under color of state law.” (McMahon v. Lopez
(1988) 199 Cal.App.3d 829, 837.)
       A private party is presumed not to act under color of
state law. (Sutton v. Providence St. Joseph Medical Center
(9th Cir. 1999) 192 F.3d 826, 835 (Sutton).) For private conduct
to constitute governmental action, there must be “something more.”
(Lugar v. Edmondson Oil Co., Inc. (1982) 457 U.S. 922, 939 (Lugar);
Sutton, supra, 192 F.3d at p. 835.)
       Plaintiffs argue that, because the Labor Commissioner’s
decision “essentially relied on [Chavez’s] testimony in issuing
the award” to Chavez, Chavez’s act of testifying was sufficiently
connected with the Labor Commissioner’s state action, and the



                                  13
requisite “something more” is present. Were this the case, however,
every witness offering important testimony would be acting under
color of state law and potentially subject to section 1983 liability.
Neither law nor logic supports such a result. Indeed, federal
law (like California state law) is inconsistent with such a result:
Under federal law, witnesses in judicial proceedings enjoy absolute
immunity from suits based on the testimony they offer, including
in suits under section 1983. (See Briscoe v. LaHue (1983) 460 U.S.
325, 329 (Briscoe) [“[section] 1983 does not allow recovery of
damages against a private party for testimony in a judicial
proceeding”]; Blevins v. Ford (9th Cir. 1978) 572 F.2d 1336, 1339
(Blevins) [a witness “cannot be subjected to civil liability based upon
his testimony”]; see also Holt v. Castaneda (9th Cir. 1987) 832 F.2d
123, 125–126 [“many courts, including the Supreme Court itself,
have understood Briscoe to apply . . . to judicial proceedings
generally”].) Plaintiffs cite no authority holding or even suggesting
that a private citizen’s testimony constitutes action “under color of
state law.”
       Nor does Chavez’s role as the plaintiff in the Labor
Commissioner proceedings change this analysis. As a general rule,
“[p]rivate use of state-sanctioned private remedies or procedures
does not rise to the level of state action.” (Tulsa Professional
Collection Services v. Pope (1988) 485 U.S. 479, 485–486.) What
conduct of private parties may be “fairly attributable [to state
action] is a matter of normative judgment, and the criteria lack
rigid simplicity.” (Brentwood Acad. v. Tennessee Secondary Sch.
Athletic Assn. (2001) 531 U.S. 288, 295–296.) What is clear,
however, is that a “state action may be found if, though only if,
there is such a ‘close nexus between the [s]tate and the challenged
action’ that seemingly private behavior ‘may be fairly treated
as that of the [s]tate itself.’ ” (Id. at p. 295.) There is no such



                                  14
nexus here. A private citizen who brings a wage claim or testifies
before the Labor Commissioner is not performing any government
function. Nor does the law delegate any role or responsibility
to a private citizen by giving him the ability to pursue a wage
claim at an administrative hearing and testify on his own behalf.
Indeed, plaintiffs have not cited any case in any jurisdiction
that suggests either prosecuting a claim or testifying in an
official proceeding constitutes state action. Rather, the cases they
cite deal with circumstances not remotely similar to this case.
(See Edmonson v. Leesville Concrete Co., Inc. (1991) 500 U.S.
614, 627 [private attorney’s use of preemptory challenges in
jury selection actionable under section 1983 because attorney
performing “a unique governmental function delegated to
private litigants by the government”]; Lugar, supra, 457 U.S.
at pp. 941–942 [involving “private party’s joint participation
with state officials in the seizure of disputed property” under
state procedure “whereby state officials will attach property on
the ex parte application of one party to a private dispute”] (italics
omitted); Howerton v. Gabica (9th Cir. 1983) 708 F.2d 380, 383
[landlord’s eviction of its tenant was under color of state law
where police were actively involved in each step of the eviction].)
Moreover, as discussed above, reading any of the cases plaintiffs
cite as supporting plaintiffs’ state action argument would be
inconsistent with the United States Supreme Court’s conclusion
that testimony in adjudicative proceedings is absolutely privileged
from section 1983 liability. (See Briscoe, supra, 460 U.S. at p. 329;
Blevins, supra, 572 F.2d at p. 1339.)
       Plaintiffs’ final argument that the question of state action
is “highly factual . . . [and] makes a motion to dismiss improper”
only underscores that they failed to meet their burden below. The
second prong of the anti-SLAPP analysis employs not a motion to



                                  15
dismiss standard, but a “ ‘summary-judgment-like procedure,’ ”
based on facts offered by the plaintiff. (See Soukup, supra,
39 Cal.4th at pp. 278, 291.)
      Because plaintiffs have offered no facts suggesting Chavez
acted under color of state law, their section 1983 claim cannot
survive the second prong of the anti-SLAPP analysis.

            2.     Writ of Mandate
       Plaintiffs’ “second cause of action” for “writ of mandate”—
also referred to in the complaint as a petition for same—does not
allege a viable cause of action against Chavez. (Capitalization,
underlining, and boldface omitted.) The complaint cites as a legal
basis for this cause of action Code of Civil Procedure section 1094.5
and Labor Code section 98.2.
       Code of Civil Procedure section 1094.5 authorizes writs
of administrative mandate, “issued for the purpose of inquiring
into the validity of any final administrative order or decision.”
(Code Civ. Proc., § 1094.5, subd. (a).) A writ of administrative
mandate serves the limited purpose of determining “whether
the [administrative agency] has proceeded without, or in excess
of, jurisdiction; whether there was a fair trial; and whether there
was any prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5,
subd. (b).) Writ relief is, therefore, only available against the
administrative agency that made the challenged decision. Plaintiffs
cannot seek such relief from Chavez.
       Plaintiffs attempt to avoid this obvious and fatal flaw by
suggesting their second cause of action constitutes an appeal from
the Labor Commissioner decision under Labor Code section 98.2,4

      4 Labor Code section 98.2 provides in pertinent part that,
“[w]ithin 10 days after service of notice of an order, decision, or



                                  16
and that Chavez is necessarily a party to such an appeal by
virtue of his being a party to the Labor Commissioner proceedings.
Whether construed as an appeal from the Labor Commissioner’s
order or a petition for writ of mandate, however, plaintiffs’ second
cause of action seeks relief Chavez cannot help provide “vacating
and reversing the [Labor Commissioner’s decision].” Thus, even if
the second cause of action were an appeal from an administrative
award—and we do not conclude that it is—it still is not a legally
viable claim against Chavez.
      Plaintiffs thus failed to meet their burden under the second
prong of the anti-SLAPP statute with respect to both claims against
Chavez, because they both arise from Chavez’s protected conduct at
the Berman hearing. Accordingly, the trial court correctly granted
Chavez’s motion to strike the complaint as against Chavez.




award [of the Labor Commissioner] the parties may seek review
by filing an appeal to the superior court, where the appeal shall
be heard de novo.” (Lab. Code, § 98.2, subd. (a).) Plaintiffs’
second cause of action states that “[p]laintiffs are entitled to a
de novo hearing on this matter and for a reversal of the [Labor
Commissioner’s decision].”




                                 17
                          DISPOSITION
     The order is affirmed. Respondent is awarded his costs on
appeal.
     CERTIFIED FOR PARTIAL PUBLICATION.




                                          ROTHSCHILD, P. J.
We concur:




             CHANEY, J.




             WHITE, J.*




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                 18
