Filed 2/4/16 Hughes v. California Dept. of Corrections CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


CHARLES HUGHES,                                                      B253725

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC454639)
         v.

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION AND MATTHEW
CATE,

         Defendants and Appellants.



         APPEAL from orders of the Superior Court of the County of Los Angeles,
Barbara A. Meiers, Judge. Reversed.
         Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Senior Assistant
Attorney General, Kenneth C. Jones, Supervising Deputy Attorney General, Nancy G.
James and Robert D. Petersen, Deputy Attorneys General for Defendants and Appellants.
         Law Offices of Stephen J. Horvath, Stephen J. Horvath, Marcus J. Berger;
Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Plaintiff and
Respondent.
                                    INTRODUCTION

       Defendants and appellants the Department of Corrections and Rehabilitation and
Matthew L. Cate (the Department) filed a special motion to strike under the anti-SLAPP
statute1―Code of Civil Procedure 425.162―seeking to strike, inter alia, the FEHA3
retaliation claim filed by plaintiff and respondent Charles Hughes (plaintiff). The trial
court granted the motion to strike the FEHA retaliation claim and plaintiff did not appeal
from that directly appealable order.
       Two years after the trial court struck the FEHA retaliation claim, plaintiff moved a
different trial court for leave to file an amendment to his operative complaint to add a
FEHA retaliation claim based on newly discovered facts that had occurred after the filing
of the original complaint, as well as certain of the allegations that supported his original
FEHA claim. The trial court granted the motion and the Department again moved to
strike the new FEHA retaliation claim under the anti-SLAPP statute. The trial court
denied the second anti-SLAPP motion, and the Department timely appealed from that
order, arguing, inter alia, that the trial court was not authorized to grant leave to amend a
claim that had previously been stricken under the anti-SLAPP statute.
       We hold that the trial court lacked the authority to allow an amendment that
circumvented the final, binding ruling striking the FEHA retaliation claim. We further
hold that, assuming the trial court had discretionary authority to allow an amendment
limited to newly discovered facts, the trial court nevertheless erred by denying the anti-
SLAPP motion to the FEHA retaliation claim based on those newly discovered facts. We


1
        SLAPP is an acronym for “Strategic Lawsuit Against Public Participation”
(Equilon Enterprises, LLC v. Consumer Common Cause, Inc. (2002) 29 Cal.4th 53, 57,
fn. 1.)
2
       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
3
      The California Fair Employment and Housing Act, Government Code section
12900 et seq.


                                              2
therefore reverse the orders granting leave to file an amendment to the operative
complaint and denying the second anti-SLAPP motion.


                               FACTUAL BACKGROUND


       A.     First Action4
       In December 2005, plaintiff—a correctional lieutenant employed by the
Department and assigned to the California State Prison-Los Angeles County (the
prison)—was terminated by the Department. In 2006, plaintiff filed a FEHA action
against the Department claiming he was terminated in retaliation for engaging in
protected activities (first action). Plaintiff also appealed the Department’s decision to
terminate him to the State Personnel Board (Board). In April 2009, the Board reinstated
plaintiff to his former position. Thereafter, a jury in the first action returned a verdict in
favor of plaintiff in the amount of $1,670,393.37. The Department appealed from the
judgment on the verdict, and in January 2014, this court affirmed the judgment.


       B.     Plaintiff’s Alleged Conduct While Separated from State Service
       During the 45-month period from December 2005 to September 2009 that plaintiff
was separated from state service, he remained the local union chapter president of the
California Correctional Police Officers Association. While acting in his capacity as
union president, plaintiff’s interactions with Department personnel resulted in allegations



4
        The factual and procedural discussion about the first action between plaintiff and
the Department is taken from our first unpublished opinion filed in that case, number
B238134. The Department requested that we take judicial notice of our first opinion in
the first action, as well as our subsequent opinion in that action affirming the trial court’s
order denying plaintiff prejudgment interest on lost earnings, which requests we granted.
The Department also requested that we take judicial notice of a judgment of the Superior
Court of the County of Sacramento denying plaintiff’s petition for writ of mandate, and
we grant that request as well.


                                               3
of misconduct against him, including allegations that he threatened former coworkers and
entered prison grounds unescorted in violation of prison policy.


       C.     Investigation of Alleged Misconduct and Investigative Closure Letter
       In 2009, the Department conducted an investigation into plaintiff’s conduct during
the period he was separated from state service. An investigator from the office of internal
affairs interviewed 17 witnesses and prepared a 64-page report with 52 exhibits attached.
In August 2010, the Department sent plaintiff an investigative closure letter (closure
letter) informing plaintiff that the Department had concluded its investigation and
determined that nine of the ten allegations against plaintiff were either “not sustained” or
had resulted in “no finding” being made. The Department, however, sustained the
allegation that plaintiff had filed a false claim with the Bureau of State Audits against a
deputy warden. Notwithstanding that finding, the Department did not dismiss or suspend
plaintiff, reduce his pay, or issue a letter of reprimand to him.


       D.     Administrative Time Off
       The Board reinstated plaintiff to his former position in April 2009, but the
Department did not restore plaintiff to the payroll until September 2009.5 At that time,
the investigation of plaintiff’s alleged misconduct during the time he was separated from
state service was ongoing. As a result, the Department placed plaintiff on administrative
time off on September 16, 2009. The letter informing plaintiff of that decision advised
him that he would be on paid leave under the supervision of Associate Director Mike




5
       Plaintiff refers to the five-month period between the issuance of the Board’s
reinstatement order and his reinstatement by the Department as a “constructive
suspension.”


                                              4
Knowles6 and that he was required during regular business hours to call a supervisor
before he left home, a requirement that plaintiff refers to as “home confinement.”


                           PROCEDURAL BACKGROUND


       A.     Complaint
       Plaintiff filed the instant action in February 2011, alleging 11 causes of action.
The first cause of action alleged retaliation under FEHA; the second cause of action
alleged failure to prevent discrimination, harassment, and retaliation under FEHA; the
third cause of action alleged retaliation under Labor Code section 1102.5, subdivision (b);
and the fourth through eleventh causes of action alleged violations of the Public Safety
Officers’ Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.).
       The FEHA and Labor Code retaliation claims were based on the following alleged
adverse employment actions: (i) the imposition by the Department of a five-month
constructive suspension by delaying compliance with the Board’s April 2009
reinstatement order; (ii) the institution by the Department of a new investigation based on
plaintiff’s alleged misconduct during the period he was separated from state service; (iii)
the imposition by the Department of administrative time off that was the equivalent of
home confinement; (iv) the Department’s failure to pay plaintiff back-pay, benefits, and
interest in violation of Government Code section 19584; and (v) the issuance by the
Department of the closure letter which included a sustained finding of dishonesty against
plaintiff and denied him his due process rights, including his right to a Skelly hearing 7 or
a right to appeal to the Board.

6
       Because Associate Director Knowles was assigned to Department headquarters in
Sacramento, plaintiff refers to his supervision by Knowles as a “constructive transfer” from
his former position at the prison.
7
       “Skelly hearing” refers to the administrative hearing required by Skelly v. State
Personnel Board (1975) 15 Cal.3d 194 [state statutory scheme regulating civil service
employment recognizes that a permanent civil service employee has a property interest in
continued employment that is protected by due process].

                                              5
       B.     First Anti-SLAPP Motion
       In response to the complaint, the Department filed an anti-SLAPP motion under
section 425.16. The trial court, Judge Charles Palmer presiding, granted the motion as to
the first cause of action for retaliation under FEHA and the third cause of action for
retaliation under Labor Code section 1102.5, subdivision (b). In partially granting the
motion, the trial court concluded as follows: “As to the first and third causes of action,
an element of each of them is that the plaintiff suffered an ‘adverse employment action.’
Paragraph 31 of the complaint sets forth the alleged adverse employment actions of the
defendants which form the basis for these causes of action. Among the five actions
alleged in Paragraph 31 are ‘instituting a new and frivolous misconduct investigation
including subjecting plaintiff to an eight-hour administrative interrogation’ and
‘unlawfully and maliciously notifying plaintiff that the misconduct investigation resulted
in a sustained finding of dishonesty against him without any “Skelly” rights.’ These
allegations describe protected activity of the defendants. The investigation of misconduct
by its employees and communicating the findings of that investigation are free speech
rights of the [Department] and involve public issues. [¶] . . . [¶] Regarding the first and
third causes of action which the court has found do arise out of protected activity, the
court turns to the second step of the SLAPP determination—whether plaintiff has made a
prima facie showing of a probability of prevailing. [¶] Plaintiff submits three
declarations in support of his claims. The court has sustained all but one of [the
Department’s] evidentiary objections to those declarations and their respective exhibits.
Moreover, even if the objections had not been sustained, plaintiff would fail to show a
probability of prevailing at trial. [¶] . . . [¶] Insofar as no further evidence has been
submitted by plaintiff and the facts stated in the declarations submitted by defendant do
not constitute a factual showing of a prima facie case, the motion is granted as to the first
[and] third . . . causes of action.” Plaintiff filed a motion to reconsider the trial court’s
ruling granting the anti-SLAPP motion that the trial court denied in November 2011. As
discussed below, plaintiff did not appeal from the order granting the anti-SLAPP motion.



                                               6
       C.     Third Amended Complaint
       Following three demurrers by the Department, plaintiff filed a third amended
complaint. Prior to the due date for a responsive pleading, the action was reassigned
from Judge Palmer to Judge Barbara Meiers. Thereafter, the Department filed a demurrer
to the third amended complaint. On May 29, 2013, Judge Meiers held a case
management conference. At the time, the trial court had not yet received plaintiff’s
opposition to the demurrer. Nevertheless, the trial court indicated that it was inclined to
read the opposition papers that plaintiff was prepared to file that day, advance the hearing
date, and overrule the demurrer. The trial court then voiced its apparent disagreement
with Judge Palmer’s ruling on the first anti-SLAPP motion. “Frankly, I’m not sure I
would have agreed, or come to the same conclusion as the court that sustained the [anti-
SLAPP] motion in the case. I’m not sure I wouldn’t, but I’m not at all sure I would.
Nevertheless, that’s water under the bridge because it was not appealed . . . .” After a
pause in the proceedings, during which the trial court read plaintiff’s opposition to the
demurrer, the trial court, with the agreement of the parties, advanced the hearing on the
demurrer and denied it.
       The trial court proceeded to conduct the case management conference, during
which the court commented that it was unfortunate that the action had not been
consolidated with the first action. The trial court then made the following comments:
“You might keep in mind, [plaintiff’s] counsel, unless it’s been eliminated over the
years—I’ve been on the bench for so long, who knows—there used to be a provision in
the law that—I hope it’s not gone—that’s called an amendment to the complaint, and that
is designed to add to a complaint things that have happened after the filing of the
complaint, and before the trial. So if there are, if there’s, for example, a retaliation case,
and things have gone on, and remember cases used to wait five year for trial, and over
those five years [additional] things happened, or sexual harassment [occurred], or any
number of things [occurred], you don’t have to amend the complaint. You do an
amendment to the complaint, that might have gotten you where you needed to go, but
again it’s water under the bridge.”

                                               7
       In apparent response to the trial court’s comments about filing an amendment to
the complaint in the first action, plaintiff filed a motion to amend the third amended
complaint in this action to reallege a cause of action for retaliation under FEHA. The
Department opposed the motion, arguing, inter alia, that plaintiff was precluded from
amending his FEHA retaliation claim once an anti-SLAPP motion had been granted
striking that claim, citing Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068
(Simmons). Following argument, the trial court granted plaintiff leave to reallege a
FEHA retaliation claim.


       D.     Amendment to Third Amended Complaint
       Pursuant to the leave granted by the trial court, plaintiff filed an amendment to the
third amended complaint that asserted three new alleged adverse employment actions,
each of which had occurred after the filing of the original complaint. The first adverse
action—dissemination of plaintiff’s confidential personnel records—was based on the
following allegations: “Based on evidence discovered at deposition by plaintiff on June
26, 2013, plaintiff is informed and believes and thereon alleges that at some time between
August 12, 2010 and May 31, 2011, defendants, without providing any notice to plaintiff,
unlawfully disseminated plaintiff’s personnel records including the ‘Investigative
Closure Letter’ dated August 12, 2010, which contains the sustained finding of
dishonesty described in paragraph 31 of the Third Amended Complaint, to numerous
[Department] employees including but not limited to Associate Director Mike Knowles,
Undersecretary Scott Kernan, Warden Brian Haws, and Associate Warden Tom Arlitz,
along with a transmittal email that referred to giving testimony about the included matters
in a pending proceeding. Such dissemination of plaintiff’s confidential personnel records
violated California Penal Code, section 832.7(a) and the [Department]’s own policy,
Department Operational Manual section 33010.314. [¶] Plaintiff is further informed and
believes and thereon alleges that along with the sustaining finding of dishonesty,
defendants also published to the same group of officials, all or part of plaintiff’s internal
affairs investigation file for the 2009 investigation, which was initiated after plaintiff had

                                              8
prevailed in overturning two separate terminations that were imposed and found to be
retaliatory acts in the . . . trial [of the first action]. Indeed, Associate Warden Tom Arlitz
testified that he received a ‘big, huge, thick’ package of plaintiff’s confidential personnel
records including the Investigative Closure Letter that contained the sustained finding of
dishonesty and he believed that plaintiff’s confidential records were still somewhere in
his ‘home.’ Arlitz readily admitted that he was fully aware that plaintiff had a dishonesty
charge sustained against him by Warden Pat Vasquez. [¶] The investigation file that is
believed to have been published to these 10 to 12 officials contained approximately 40
frivolous allegation of misconduct that were the subject of the investigation at one time or
another. The sustained finding of dishonesty, and the whole investigation file, and all of
plaintiff’s personnel records and information are protected by confidentiality rights
established by California Penal Code, section 832.7(a) and case law interpreting this
section. None of the recipients of the publication of the sustained finding of dishonesty,
or the investigation file, had any proper, official, legitimate, or lawful reason to receive
these confidential documents and this confidential information.”
       The second adverse action—continuing refusal to pay accrued interest on back pay
for December 2005 through June 2006—was based on the following allegations: “As a
consequence of the [Board] reinstatement order effective April 15, 2009, plaintiff was
entitled to interest at the legal rate on his back pay award. [¶] . . . [¶] After the [Board]
issued its reinstatement order effective April 15, 2009, because of the provision of
Government Code, section 19584 that the deduction from back pay for interim earnings
does not apply to the first sixth [sic] months of back pay, i.e. from December 2005 to
June 2006, the Department paid the first six months of back pay on April 14, 2010, albeit
without interest. Accordingly, plaintiff demanded payment of interest on his back pay for
that six-month interval. [¶] In response to plaintiff’s demand for payment of interest on
his back pay from December 2005 through June 2006, plaintiff was informed by Ms.
Georgia Jones of the Institutional Personnel Office that plaintiff was indeed owed the
interest demanded, but that Deputy Attorney General Reynolds had instructed her not to
pay the interest. On or around April 30, 2012, when the payment had not been made,

                                               9
plaintiff filed an internal ‘EEO complaint’ concerning the non-payment of the increment
of interest for the interval from December 2005 through June 2006, which was assigned
. . . a [Department] Grievance number [], and was tracked through Institutional Log
numbers []. [¶] In a letter dated August 13, 2012, signed by Brigid Hanson, Chief of the
[Department’s] Office of Labor Relations, plaintiff’s grievance for the accrued interest on
his back pay from December 2005 through June 2006 was denied. The denial was
contrary to Government Code, section 19584. [¶] In explaining the reasons for denying
the payment of interest on plaintiff’s back pay, the August 13, 2012 grievance denial
letter stated: ‘The grievances further allege that you were informed by the Institutional
Personnel Officer, Ms. Georgia Jones, that you were owed the interest, although she
advised you Deputy Attorney General Reynolds instructed her not to pay the interest. . . .’
. . . After quoting Government Code, section 19584, the grievance denial letter
concluded, ‘However, since [the prison] was advised by Staff Counsel to suspend
payment of interest pending the outcome of a motion you filed in Los Angeles County
Superior Court (Case #[]), a pending case regarding prejudgment interest on your back
pay, which could affect your interest payment, [the Office of Labor Relations] stands in
concurrence with the lower level response.’”
       The third adverse action—solicitation of adverse information for use in further
retaliation—was based on the following allegations: “In April 2012, plaintiff requested
of [Department] Secretary Matthew Cate that he take action to prevent [the
Department’s] employees and state attorneys . . . [from] retaliating against him for his
FEHA-protected activities. The retaliation nevertheless continued, and in May 2012,
plaintiff discovered additional acts of retaliation directed against him. [¶] On May 24,
2012, [Department] Correctional Officer L. Ayon reported to [Department] Correctional
Lieutenant Bruce Frank that a [Department] official was requesting Officer Ayon’s
assistance for the purpose that ‘We are going to get Hughes.’ Officer Ayon understood
that the official directing the request to him was seeking information that would result in
adverse action against plaintiff, because Officer Ayon had previously provided
[information to] the same official about various other staff. Officer Ayon could only

                                            10
identify the requesting official as ‘Timmy’ from ‘Folsom.’ Plaintiff is informed and
believes, and thereon alleges, that the identified official is [California State Prison-
Sacramento County] Warden Tim Virga, and that Warden Virga was seeking to have
Officer Ayon keep track of plaintiff, and develop and pass on any information that
Officer Ayon could provide to support a new adverse action against plaintiff.”
       In addition to alleging the three new adverse employment actions, plaintiff
reiterated in paragraph A30 of the amendment certain of the adverse employment actions
upon which his original retaliation claim under FEHA had been based.8 “In addition to
the retaliatory actions described [above], defendants retaliated against plaintiff by the
following actions, which are alleged in the Third Amended Complaint: (a) from April
15, 2009 through September 15, 2009, imposing a constructive suspension by
intentionally failing to comply with the [Board’s] order of reinstatement for the first five
months after it was issued; (b) on August 28, 2009, imposing terms of administrative
Time Off [‘ATO’] that were equivalent to home confinement, despite a total lack of
departmental authority or precedent for taking such an action; (c) failing to pay plaintiff
the back-pay and benefits awarded by the [Board], including restoration of plaintiff’s
retirement service contributions and interest, in violation of Government Code, section
19584; (d) on or around August 12, 2010, placing a sustained finding of filing a false
internal complaint in plaintiff’s personnel records without granting plaintiff his rights
under Government Code, section 3304(b), 3305 and 3306 in connection therewith.”
       After specifying the adverse employment actions upon which his FEHA retaliation
claim was based, plaintiff alleged that all of those actions were in retaliation for his
engagement in protected activities and were therefore actionable under FEHA. In effect,
plaintiff reasserted the FEHA retaliation claim that Judge Palmer had stricken, along with
three new alleged adverse employment actions.



8
       In paragraph A30 of the amendment, plaintiff included all of the prior adverse
employment actions, except the Department’s investigation of his conduct while
separated from state service.

                                              11
       E.     Second Anti-SLAPP Motion
       In response to the amendment to the third amended complaint, the Department
filed a second anti-SLAPP motion seeking to strike the renewed FEHA retaliation claim.
The Department argued that (i) the adverse employment actions that formed the basis of
plaintiff’s original FEHA retaliation claim had already been adjudicated adversely to
plaintiff and therefore that claim could not be amended to circumvent that ruling; (ii) the
adverse employment actions involved the Department’s protected speech or right of
petition; and (iii) plaintiff could not prevail on the merits of his renewed FEHA
retaliation claim. Following oral argument, the trial court denied the Department’s
second anti-SLAPP motion. The Department filed a timely appeal from the order
denying its second anti-SLAPP motion.


                                       DISCUSSION


       A.     Orders Granting First Anti-SLAPP Motion and Leave to Amend
       After this matter had been fully briefed, we requested that the parties submit letter
briefs on the issue of the effect of plaintiff’s failure to appeal from Judge Palmer’s order
granting, in part, the Department’s first anti-SLAPP motion and striking plaintiff’s cause
of action for retaliation under FEHA.9 Specifically, we questioned whether, in light of
Judge Palmer’s order, our analysis of Judge Meier’s order denying the second anti-
SLAPP motion should be confined to the allegations and evidence relating to the newly
pled adverse employment actions in the amendment to the third amended complaint.
       In response to our request, plaintiff submitted a letter brief contending that the
doctrine of issue preclusion10 does not confine our analysis to the allegations and

9
       As discussed, following the partial granting of the first anti-SLAPP motion, there
were still claims pending in the trial court.
10
       Plaintiff’s discussion of the doctrine of issue preclusion is inapplicable to this case
because, in general issue preclusion applies (1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first suit and (4) asserted in a

                                              12
evidence relating to newly pled adverse employment actions in the amendment.
According to plaintiff, the Department forfeited any argument based on the preclusive
effect of Judge Palmer’s order striking the FEHA retaliation claim by failing to raise the
issue in the trial court or on appeal. In addition, plaintiff contends that the ruling on the
first anti-SLAPP motion does not have preclusive effect because the issues before the
trial court on the second anti-SLAPP motion were not identical to those actually litigated
and necessarily decided by the ruling granting, in part, the first anti-SLAPP motion.
       In its letter brief, the Department contends that because an order granting an anti-
SLAPP motion prevents a plaintiff from thereafter amending a complaint to circumvent
that order, the trial court erred in allowing plaintiff to amend his complaint to state a
FEHA retaliation claim two years after a different judge had stricken plaintiff’s original
FEHA retaliation claim. Relying on Simmons, supra, 92 Cal.App.4th 1068, the
Department argues that section 425.16 makes no provision for amending a complaint
after a finding of protected activity and no such right should be implied.
       In ruling on the Department’s first anti-SLAPP motion, the trial court expressly
found that two of the five alleged adverse employment actions upon which plaintiff based
his FEHA retaliation claim arose from protected activity. The trial court therefore
concluded that as to the FEHA retaliation claim, the Department had met its burden on
the first prong of the anti-SLAPP statute by showing that the gravamen of plaintiff’s
FEHA retaliation claim was predicated on protected activity. The trial court then
analyzed the evidence in support of the FEHA retaliation claim and concluded that
plaintiff had failed to satisfy his burden—under the second prong of the anti-SLAPP
statute—of showing a probability of prevailing on his FEHA retaliation claim. Based on


second suit against one who was a party in the first suit or one in privity with that party.
(See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824-825; Alpha Mechanical,
Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005)
133 Cal.App.4th 1319, 1326-1327.) Here, the final order in issue—Judge Palmer’s order
striking the FEHA retaliation claim—was made in the same case. Therefore, the issue is
the effect of that order on our analysis of Judge Meiers’s orders granting leave to amend
to reinstate the FEHA claim and denying the second anti-SLAPP motion.

                                              13
those conclusions, the trial court granted the anti-SLAPP motion on the FEHA retaliation
claim and struck that claim, including all the allegations in support of it, from the
complaint.
       The trial court’s ruling granting the first anti-SLAPP motion on the FEHA
retaliation claim was a directly appealable order. (§ 425.16, subdivision (i) [“An order
granting or denying a special motion to strike shall be appealable under section 904.1; §
904.1, subdivision (a)(13) [authorizing appeal “[f]rom an order granting or denying a
special motion to strike under section 425.16”]; Varian Medical Systems, Inc. v. Defino
(2005) 35 Cal.4th 180, 192; Old Republic Construction Program Group v. The Boccardo
Law Firm, Inc. (2014) 230 Cal.App.4th 859, 866, fn. 4.) Plaintiff, however, did not
appeal from the trial court’s order within the time period provided for such an appeal.
That order therefore became final and binding upon him and us. (In re Marriage of
Weiss (1996) 42 Cal.App.4th 106, 119 [“Because [petitioner] did not appeal from the
immediately appealable . . . attorney fees orders . . . , those orders became final and
binding on him”]; Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465
[“since appellant . . . did not appeal from the [directly appealable order denying class
certification] that order is now final and binding upon appellant . . . and upon this court];
Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 908 [“that
[directly appealable] order [denying class certification], unappealed, is now final and
binding upon plaintiff . . . , and upon us].)
       Two years after the trial court granted the Department’s anti-SLAPP motion and
struck the FEHA retaliation claim, and well after the time to appeal from that ruling had
lapsed, plaintiff moved a different trial judge for leave to amend his operative pleading to
state a new claim for retaliation under FEHA. According to plaintiff, newly discovered
facts, that had occurred after the filing of the complaint, justified the requested
amendment. The Department opposed the motion, arguing, inter alia, that once an anti-
SLAPP motion has been granted, a plaintiff cannot amend his or her pleading in an
attempt to circumvent the ruling on the anti-SLAPP motion. (Simmons, supra, 92
Cal.App.4th at p. 1073.) Notwithstanding that plaintiff and the trial court were bound by

                                                14
the ruling striking the FEHA retaliation claim and the holding in Simmons, the trial court
granted plaintiff leave to file an amendment to his complaint to, in effect, revive the
stricken FEHA retaliation claim by allowing him to include in his newly pled FEHA
claim four of the five adverse employment actions that formed the basis of the stricken
claim.
         Based on the authorities establishing that plaintiff was bound by the final order
striking his FEHA retaliation claim and the holding in Simmons, supra, 92 Cal.App.4th
1068, the trial court erred by allowing plaintiff to revive his stricken FEHA retaliation
claim. By doing so, the trial court impermissibly reversed a final, binding order issued by
another trial court and failed to follow the binding precedent in Simmons, supra, 92
Cal.App.4th 1068.
         In People v. Grace (1926) 77 Cal.App. 752, 760, the court explained that there is
only one superior court and that an order issued by one department of that court is
binding on other departments of that court. In Ford v. Superior Court (1986) 188
Cal.App.3d 737, 742, the court further explained that “[o]ne department of the superior
court cannot enjoin, restrain, or otherwise interfere with the judicial act of another
department of the superior court. Even between superior courts of different counties,
having coequal jurisdiction over a matter, the first court of equal dignity to assume and
exercise jurisdiction over a matter acquires exclusive jurisdiction. [Citations.] [¶] A
judgment rendered in one department of the superior court is binding on that matter upon
all other departments until such time as the judgment is overturned. [Citation.]”
         Judge Palmer issued an order striking the FEHA retaliation claim and that order
thereafter became final and binding on plaintiff. Two years later, Judge Meiers purported
to revive the FEHA retaliation claim based on both new allegations and most of the
original adverse employment actions pled in support of that claim. Under Ford v.
Superior Court, supra, 188 Cal.App.3d 737, Judge Meiers had no authority to reverse
Judge Palmer’s ruling, particularly after that order became final and binding on plaintiff.
         Moreover, under Simmons, supra, 92 Cal.App.4th 1068, the requested amendment
to circumvent Judge Palmer’s ruling was also unauthorized because it would defeat the

                                              15
purposes underlying the anti-SLAPP statute. As the court in Simmons explained, “[T]he
anti-SLAPP statute makes no provision for amending the complaint once the court finds
the requisite connection to First Amendment speech. And, for the following reasons, we
reject the notion that such a right should be implied. [¶] In enacting the anti-SLAPP
statute, the Legislature set up a mechanism through which complaints that arise from the
exercise of free speech rights ‘can be evaluated at an early stage of the litigation process’
and resolved expeditiously. (Lafayette Morehouse, [Inc. v. Chronicle Publishing Co.
(1995)] 37 Cal.App.4th [855,] 865). Section 425.16 is just one of several California
statutes that provide ‘a procedure for exposing and dismissing certain causes of action
lacking merit.’ (Lafayette Morehouse, supra, at p. 866.) [¶] Allowing a SLAPP plaintiff
leave to amend the complaint once the court finds the prima facie showing has been met
would completely undermine the statute by providing the pleader a ready escape from
section 425.16’s quick dismissal remedy. Instead of having to show a probability of
success on the merits, the SLAPP plaintiff would be able to go back to the drawing board
with a second opportunity to disguise the vexatious nature of the suit through more artful
pleading. This would trigger a second round of pleadings, a fresh motion to strike, and
inevitably another request for leave to amend. [¶] By the time the moving party would
be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded
in his goal of delay and distraction and running up the costs of his opponent. (See Dixon
v. Superior Court (1994) 30 Cal.App.4th 733, 741 [36 Cal.Rptr.2d 687].) Such a plaintiff
would accomplish indirectly what could not be accomplished directly, i.e., depleting the
defendant’s energy and draining his or her resources. ([Church of] Scientology [v.
Wollersheim (1996)] 42 Cal.App.4th [628,] 645.) This would totally frustrate the
Legislature’s objective of providing a quick and inexpensive method of unmasking and
dismissing such suits. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [33
Cal.Rptr.2d 446].)” (Simmons, supra, 92 Cal.App.4th at pp. 1073-1074.)
       In this case, as the defendant did in Simmons, supra, 92 Cal.App.4th 1068, the
Department availed itself of the protections of the anti-SLAPP statute and obtained an
expeditious determination that plaintiff’s FEHA retaliation claim was based on protected

                                             16
activity and that plaintiff did not have a probability of prevailing on the merits of that
claim. Plaintiff did not attempt to amend that claim following the ruling striking it, and
although that ruling was directly appealable, plaintiff chose not to appeal from it.
Instead, two years later, plaintiff sought to revive the FEHA retaliation claim based on
new allegations of adverse employment actions taken against him after the filing of the
complaint, as well as most of the original alleged adverse actions. By allowing plaintiff
to amend his complaint as requested, the trial court denied the Department the benefit of
the anti-SLAPP statute, i.e., a “quick dismissal remedy.” Because the order allowing the
amendment was contrary to the policies underlying the anti-SLAPP statute, it was
unauthorized and must be reversed. Because the order denying the second anti-SLAPP
motion was based on the unauthorized order granting leave to amend, the order on the
second anti-SLAPP motion must also be reversed.
       In his letter brief, plaintiff contends that the Department waived any argument that
the trial court erred in granting leave to amend because the opening and reply briefs do
not contain any such argument. A fair reading of the opening brief, however,
demonstrates that the Department adequately raised the issue. In the opening brief, the
Department argued that “[t]he first judge assigned to this case [Judge Palmer] recognized
the dangers of allowing this case to go forward. The second judge [Judge Meiers]
defeated the purpose of the anti-SLAPP law by allowing the stricken claims of retaliation
to be revived based on vociferous but bombastic allegations. [The Department] relies on
this Court to correct a ruling that ‘totally frustrate[s] the Legislature’s objective of
providing a quick and inexpensive method of unmasking and dismissing’ unmeritorious
lawsuits. (See Simmons[, supra,] 92 Cal.App.4th [at p.] 1074 [observing that allowing an
amendment after the granting of an anti-SLAPP motion would “‘completely undermine
the statute’ and concluding that the statute’s omission of any provision for leave to amend
was not the product of inadvertence or oversight”].) Thus, contrary to plaintiff’s
assertion, not only did the Department explicitly challenge the correctness of the order
granting leave to amend, it supported that challenge with a citation to and a quotation
from Simmons, supra, 92 Cal.App.4th 1068. Although plaintiff chose not to address the

                                              17
issue in his respondent’s brief, he was on notice that the Department took issue with the
propriety of the trial court’s order granting leave to amend in light of the holding in
Simmons. Moreover, the Department relied on Simmons in opposing the motion for leave
to amend and in making its anti-SLAPP motion in the trial court. We therefore conclude
that there has not been a waiver of the issue on appeal.
       In its letter brief, the Department expands upon its challenge to the order granting
leave to amend, again relying on Simmons, supra, 92 Cal.App.4th 1068. In doing so, the
Department notes that the order, when entered, was not an appealable order. But that
order subsequently became appealable under section 90611—as an interim order that
affects a final, directly appealable order—when the Department appealed from the
subsequent order denying the second anti-SLAPP motion, which subsequent order was
directly appealable under section 425.16, subdivision (i). (See Sweeting v. Murat (2013)
221 Cal.App.4th 507, 511, fn. 6.) We therefore have jurisdiction under section 906 to
review the propriety of the trial court’s order granting leave to amend.
       In his motion for leave to amend in the trial court, plaintiff attempted to
distinguish and limit the holding in Simmons, supra, 92 Cal.App.4th 1068, relying, inter
alia, on the subsequent decision in Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 870-
871 (Nguyen-Lam). According to plaintiff, that case authorizes an amendment to a claim
after the granting of an anti-SLAPP motion based on “newly-discovered, newly-
occurring” evidence, if that evidence would assist a plaintiff in meeting his or her burden
under the second prong of the anti-SLAPP statute. Although the trial court apparently
accepted this characterization of the holding in Nguyen-Lam, we do not read that decision
as authorizing the proposed amendment.
       As the court in Hecimovich v. Encinal School Parent Teacher Organization (2012)
203 Cal.App.4th 450 explained, the holding in Nguyen-Lam, supra, 171 Cal.App.4th 858

11
       Section 906 provides, in pertinent part: “Upon an appeal pursuant to Section
904.1 or 904.2, the reviewing court may review the verdict or decision and any
intermediate ruling, proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which substantially affects the
rights of a party . . . .” (Italics added.)

                                             18
was based upon a unique procedural posture which limits its application to cases with
similar facts. “[In Nguyen-Lam], the trial court had entered an unusual order, described
by the Court of Appeal as follows: ‘The trial court couched its ruling as an order
granting defendant’s motion to strike, but with leave for plaintiff to amend her complaint
to cure any deficiency concerning actual malice. . . . But authorizing an amendment
under these circumstances is tantamount to denying the strike motion, and we therefore
reach the propriety of the ruling based on defendant’s challenge.’ (Nguyen-Lam v. Cao,
supra, 171 Cal.App.4th at pp. 869-870.) The court went on to affirm the denial of the
SLAPP motion, pointedly noting that it did so because the evidence showing that plaintiff
could prevail on the merits was before the trial court at the time of the motion: ‘True, a
plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an
amended complaint (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal.App.4th 1049 [18 Cal.Rptr.3d 882]) but where, as here, the evidence prompting
amendment is found in the declarations already submitted for the hearing, there is no risk
the purpose of the strike procedure will be thwarted with delay, distraction, or increased
costs. (Cf. ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc. (2006) 138
Cal.App.4th 1307, 1323 [42 Cal.Rptr.3d 256] [plaintiff cannot amend pleading to avoid
pending anti-SLAPP motion]; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 [131
Cal.Rptr.2d 201] [plaintiff cannot use “eleventh-hour amendment” to plead around anti-
SLAPP motion].)’ (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 871-872.) In
short, the court concluded, ‘the trial court did not err in permitting plaintiff to amend her
complaint to plead actual malice in conformity with the proof presented at the hearing on
the strike motion.’ (Id. at p. 873.)” (Id. at pp. 461-462.)
       Here, plaintiff did not attempt immediately to amend his pleading to include facts
that conformed to the proof that was already before the trial court on the first anti-SLAPP
motion, as was the case in Nguyen-Lam, supra, 171 Cal.App.4th 858. Instead, two years
after the final, binding order striking his FEHA retaliation claim, he attempted to revive
his original FEHA retaliation claim by combining allegations based on facts that occurred
after the filing of the original complaint with allegations from the original complaint. In

                                             19
doing so, he was circumventing the order striking his FEHA retaliation claim by an
unauthorized amendment. Therefore, the holding in Nguyen-Lam had no application to
his motion to amend. Rather, as explained, the holding in Simmons, supra, 92
Cal.App.4th 1068 controlled the analysis of his motion for leave to amend and was
dispositive of it.
       Under Simmons, supra, 92 Cal.App.4th 1068, plaintiff could not have amended his
complaint by omitting the two adverse employment actions that Judge Palmer found
arose from protected activity. Nor could plaintiff have attempted to add new allegations
of facts that predated the filing of the original complaint. But, had plaintiff limited his
amendment to the newly discovered, after-occurring evidence, as we discuss, the trial
court arguably may have had discretionary authority to allow such an amendment.
Because the trial court made no such limitation, and instead allowed plaintiff to include
four of the five adverse employment actions that had supported the stricken FEHA
retaliation claim, the order granting leave to file the amendment contravened the policies
underlying the anti-SLAPP statute.


       B.      Amendment Based Solely on Newly Discovered Evidence
       Although the court in Simmons, supra, 92 Cal.App.4th 1068 held that a plaintiff
cannot amend a claim—by deleting or adding allegations to circumvent the anti-SLAPP
statute—once a special motion to strike has been granted, the Simmons court did not
directly deal with the issue of whether a complaint can be amended to state a different
claim, under a similar legal theory, based solely on newly discovered, after-occurring
evidence. Based on the foregoing analysis of the holding in Simmons and the facts of this
case, however, we do not need to determine whether allowing such an amendment two
years after the original ruling on the anti-SLAPP motion would be contrary to the policies
underlying the anti-SLAPP statute and therefore unauthorized.
       Moreover, even assuming that the trial court had allowed plaintiff to file an
amendment asserting a FEHA retaliation claim limited to the three newly discovered
alleged adverse employment actions, the trial court’s subsequent order denying the anti-

                                              20
SLAPP motion to that claim would have been erroneous because, as we discuss, any such
claim would have been subject to the Department’s second special motion to strike the
FEHA retaliation claim in the amended pleading.


              1.     Legal Principles and Standard of Review


                     a.     Anti-SLAPP Statute and Standard of Review
       We recently summarized the legal principles and standard of review that govern
our analysis of a trial court’s order ruling on an anti-SLAPP motion. “Section 425.16
provides that a cause of action arising from a defendant’s conduct in furtherance of
constitutionally protected rights of free speech or petitioning may be stricken unless the
plaintiff has a probability of prevailing on the merits. (§ 425.16, subd. (b)(1).) In ruling
on a special motion to strike under section 425.16, the trial court employs a two-prong
analysis. Initially, the trial court determines ‘“whether the defendant has made a
threshold showing that the challenged cause of action is one arising from protected
activity. . . . If the court finds such a showing has been made, it then determines whether
the plaintiff has demonstrated a probability of prevailing on the claim.” [Citation.]’
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)” (Kenne v. Stennis
(2014) 230 Cal.App.4th 953, 962 (Stennis).)
       “To satisfy the second prong—the probability of prevailing—the plaintiff must
demonstrate that the complaint is legally sufficient and supported by a prima facie
showing of facts to support a favorable judgment if the evidence submitted by the
plaintiff is accepted. The trial court considers the pleadings and evidentiary submissions
of both the plaintiff and the defendant. Although ‘“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. [Citation.]” (Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d
733], superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150

                                             21
Cal.App.4th 527, 547 [59 Cal.Rptr.3d 109].)’ (Cole v. Patricia A. Meyer & Associates,
APC (2012) 206 Cal.App.4th 1095, 1104-1105 (Cole).) The standard for determining the
merits of a defendant’s special motion to strike a complaint is similar to that for
determining the merits of a defendant’s motion for summary judgment. ‘Both seek to
determine whether a prima facie case has been presented by [the] plaintiff in opposing the
motions.’ (Bergman v. Drum (2005) 129 Cal.App.4th 11, 18; see Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 7:1008, p. 7(II)-
57 [‘The “probability of prevailing” is tested by the same standard governing a motion
for summary judgment, nonsuit, or directed verdict’].) If a plaintiff sets forth a prima
facie case in opposition to such motions, the motions must be denied.” (Stennis, supra,
230 Cal.App.4th at pp. 962-963.)
       “‘We review an order granting an anti-SLAPP motion de novo, applying the same
two-step procedure as the trial court. (Alpha & Omega Development, LP v. Whillock
Contracting, Inc. (2011) 200 Cal.App.4th 656, 663 [132 Cal.Rptr.3d 781].) We look at
the pleadings and declarations, accepting as true the evidence that favors the plaintiff and
evaluating the defendant’s evidence ‘“only to determine if it has defeated that submitted
by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup).) The
plaintiff’s cause of action needs to have only “‘minimal merit’ [citation]” to survive an
anti-SLAPP motion. (Id. at p. 291.)’ (Cole, supra, 206 Cal.App.4th at p. 1105.)”
(Stennis, supra, 230 Cal.App.4th at pp. 962-963.)


                     b.     Civil Code Section 47, Subdivision (b)—Litigation Privilege
       Because, under the second prong of the anti-SLAPP analysis, we are required to
determine the legal sufficiency of plaintiff’s FEHA retaliation claim based on newly
discovered evidence, the appeal raises the issue of whether that claim is barred on the
merits as a matter of law under the litigation privilege set forth in Civil Code section 47,
subdivision (b). As we explained in Stennis, supra, 230 Cal.App.4th 953, that “section
provides, in pertinent part: ‘A privileged publication or broadcast is one made: [¶] . . .

                                             22
[¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official
proceeding authorized by law, or (4) in the initiation or course of any other proceeding
authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084)
of Title 1 of Part 3 of the Code of Civil Procedure . . . .’ ‘The privilege in [Civil Code]
section 47[, subdivision (b)] is “relevant to the second step in the anti-SLAPP analysis[12]
in that it may present a substantive defense plaintiff must overcome to demonstrate a
probability of prevailing. (See, e.g., Kashian v. Harriman (2002) 98 Cal.App.4th 892,
926-927 [120 Cal.Rptr.2d 576] [where the plaintiff’s defamation action was barred by
Civil Code section 47, subdivision (b), the plaintiff cannot demonstrate a probability of
prevailing under the anti-SLAPP statute]; Dove Audio, Inc. v. Rosenfeld, Meyer &
Susman (1996) 47 Cal.App.4th 777, 783-785 [54 Cal.Rptr.2d 830] [the defendant’s
prelitigation communication privileged and trial court therefore did not err in granting
motion to strike under the anti-SLAPP statute].)” (Flatley [v. Mauro], supra, 39 Cal.4th
at p. 323.)’ (Rohde v. Wolf, supra, 154 Cal.App.4th at p. 38.)” (Stennis, supra, 230
Cal.App.4th at p. 964.)
       “The Supreme Court has stated, ‘The litigation privilege, codified at Civil Code
section 47, subdivision (b), provides that a “publication or broadcast” made as part of a
“judicial proceeding” is privileged. This privilege is absolute in nature, applying “to all
publications, irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d
205, 216 [266 Cal.Rptr. 638, 786 P.2d 365] (Silberg).) “The usual formulation is that the
privilege 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 [has] some connection or logical relation to the
action.” (Id. at p. 212.) The privilege “is not limited to statements made during a trial or
other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen


12
       “‘Notwithstanding [the] relationship between the litigation privilege and the anti-
SLAPP statute . . . the two statutes are not substantively the same.’” (Rohde v. Wolf
(2007) 154 Cal.App.4th 28, 38, fn. 2, quoting Flatley v. Mauro (2006) 39 Cal.4th 299,
323; see Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263.)

                                             23
v. Cohen (2006) 37 Cal.4th 1048, 1057 [39 Cal.Rptr.3d 516, 128 P.3d 713] (Rusheen).)’
(Action Apartment Association, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232,
1241.)” (Stennis, supra, 230 Cal.App.4th at p. 964.)
       “The Supreme Court has also observed that ‘“[t]he principal purpose of [Civil
Code] section [ 47, subdivision (b)] is to afford litigants and witnesses [citation] the
utmost freedom of access to the courts without fear of being harassed subsequently by
derivative tort actions.” (Silberg[, supra,] 50 Cal.3d [at p.] 213.) Additionally, the
privilege promotes effective judicial proceedings by encouraging “‘open channels of
communication and the presentation of evidence’” without the external threat of liability
(ibid.), and “by encouraging attorneys to zealously protect their clients’ interests.” (Id. at
p. 214.) “Finally, in immunizing participants from liability for torts arising from
communications made during judicial proceedings, the law places upon litigants the
burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby
enhancing the finality of judgments and avoiding an unending roundelay of litigation, an
evil far worse than an occasional unfair result.” (Ibid.)’ (Flatley v. Mauro, supra, 39
Cal.4th at pp. 321-322.)” (Stennis, supra, 230 Cal.App.4th at pp. 964-965.)
       “‘[T]he privilege is “an ‘absolute’ privilege, and it bars all tort causes of action
except a claim of malicious prosecution.” (Hagberg v. California Federal Bank (2004)
32 Cal.4th 350, 360 [7 Cal.Rptr.3d 803, 81 P.3d 244], italics added.) The litigation
privilege has been applied in “numerous” cases involving “fraudulent communications or
perjured testimony.” [Citations.]’ (Flatley v. Mauro, supra, 39 Cal.4th at p. 322, italics
added.) Because Civil Code section 47, subdivision (b) protects any statements or
writings that have ‘“some relation”’ to a lawsuit, communications made both during and
in anticipation of litigation are covered by the statute. (Rubin v. Green (1993) 4 Cal.4th
1187, 1193-1194; see Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1268.)”
(Stennis, supra, 230 Cal.App.4th at p. 965.)




                                               24
              2.      Analysis


                      a.     Protected Activity13


                             (i)    Dissemination of confidential personnel records
       As set forth in detail above, plaintiff alleged in the amendment that the
Department sent copies of the closure letter, which included the sustained finding that he
had filed a false claim, and the investigation file detailing multiple allegations of
plaintiff’s additional misconduct, to several management level Department employees.
Plaintiff based that allegation on the deposition testimony of Associate Warden Tom
Arlitz who testified that he received a large packet of documents from the Department
that included information about the sustained finding that plaintiff had filed a false claim
and other allegations of misconduct by plaintiff during the period plaintiff was separated
from state service.
       In support of its second anti-SLAPP motion, the Department submitted declaration
testimony establishing that after the complaint in this action was filed, staff counsel for
the Department forwarded the complaint and related documents to “various [Department]
officials,” including Associate Warden Arlitz. According to that testimony, the
Department managers involved in reviewing the investigation report and issuing the
closure letter to plaintiff did not distribute or direct any other Department employee to
distribute the closure letter or report to any other person. Plaintiff did not submit any
evidence that contradicts the Department’s evidence on this issue. The deposition
testimony of Associate Warden Arlitz was ambiguous, at best, and when read in light of
the Department’s declaration testimony, it supported a reasonable inference that the


13
        Although the amendment asserted three new alleged adverse employment actions
that the Department contends arose from protected activity, plaintiff did not address the
third such action—solicitation of adverse information for use in further retaliation—in
the argument section of his opening brief. Plaintiff presumably concedes that this
allegation arose from protected activity or is otherwise not actionable under FEHA.

                                              25
package of documents to which Associate Warden Arlitz referred in his deposition was
plaintiff’s complaint and related documents not the investigative report and closure letter.
       Based on the evidence in the record—including the declarations of various
Department employees that demonstrated that Associate Warden Arlitz and others in
management were sent copies of plaintiff’s complaint by staff counsel and that his
investigation file and closure letter were not disseminated—the disclosure of information
about which plaintiff complains was in response to the filing of the complaint in this
action. As such, that disclosure was privileged under Civil Code section 47 as
communications made in connection with a pending litigation. That disclosure therefore
arose from protected activity, i.e., the Department’s right to petition. As a result, the
Department met its burden under the first prong of the anti-SLAPP statute of showing
that the alleged dissemination of confidential personnel records fell under the protection
of that statute.


                             (ii)   Refusal to pay interest on back pay
       Plaintiff alleged in the amendment that the Department, after the filing of the
complaint, continued to refuse to pay interest on back pay from December 2005 through
June 2006. According to plaintiff, the interest was due pursuant to the Board’s
reinstatement order. Plaintiff further alleged that the Department’s refusal to pay the
claimed interest was based on the advice of counsel “to suspend payment of interest
pending the outcome of a motion . . . in a pending case. . . .”
       The evidence on this issue showed that when plaintiff complained about the
nonpayment of interest, he was advised by the Department in August 2012 that the
interest was not being paid because there was a pending motion on the interest dispute
before the trial court in the first action. The conduct complained of was therefore an
issue under consideration by a judicial body. Accordingly, the Department satisfied its
burden under the first prong of the anti-SLAPP statute of showing that the failure to pay
interest arose from protected activity.



                                             26
                     b.     Probability of Prevailing
       Based on the foregoing analysis, it is clear that plaintiff could not show that there
was probability of prevailing on the merits of either the dissemination of confidential
information claim or the refusal to pay interest claim. As discussed, the Department’s
evidence in support of its anti-SLAPP motion demonstrated that the conduct complained
of as to both claims involved communications in response to or during a pending
litigation and was therefore absolutely privileged under Civil Code section 47.
       In Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, the court explained the
type of conduct to which the Civil Code section 47 privilege applies. “The litigation
privilege protects only publications and communications; it does not protect
noncommunicative conduct. The threshold issue in determining the applicability of the
privilege ‘is whether the defendant’s conduct was communicative or noncommunicative.’
(Rusheen [v. Cohen], supra, 37 Cal.4th at p. 1058.) [¶] The distinction between
communicative and noncommunicative conduct ‘hinges on the gravamen of the action.’
(Rusheen [v. Cohen], supra, 37 Cal.4th at p. 1058.) ‘[T]he key in determining whether
the privilege applies is whether the injury allegedly resulted from an act that was
communicative in its essential nature.’ (Fn. omitted.) (Ibid.) The privilege ‘extends to
noncommunicative acts that are necessarily related to the communicative conduct.’ (Id.
at p. 1065.) In short, ‘unless it is demonstrated that an independent, noncommunicative,
wrongful act was the gravamen of the action, the litigation privilege applies.’ (Ibid.)”
(Id. at p. 616.)
       Here, both of the newly alleged adverse actions were based on acts necessarily
related to communicative conduct—i.e., sending plaintiff’s complaint to certain
management personnel to advise them of the pendency of the action and following the
advice of the Attorney General not to pay disputed interest pending the outcome of a
motion in a related action. Those communications and related acts were therefore
absolutely privileged. Accordingly, even assuming that the trial court’s order granting
leave to amend had been limited to the two new alleged adverse actions, plaintiff would
have nevertheless failed to satisfy his burden under the second prong of the anti-SLAPP

                                             27
as to those newly alleged adverse employment actions because the Department’s
evidence constituted a prima facie showing that the conduct complained of was
privileged and plaintiff’s evidence was insufficient to overcome that showing.
       In his supplemental letter brief, plaintiff contends that the two alleged adverse
actions were noncommunicative. According to plaintiff, the gravamen of his newly
alleged retaliation claim was based on “the denial of [plaintiff’s] POBRA rights to
challenge the finding of dishonesty and the subsequent widespread dissemination of that
finding based on the denial of [plaintiff’s] POBRA rights, and the denial of interest on
backpay to which [plaintiff] had a statutory right.”
       In his letter brief, plaintiff attempts to merge his prior allegations concerning the
violation of his POBRA rights14 with the two new adverse employment actions that
occurred after the granting of the Department’s first anti-SLAPP motion. The POBRA
allegations, however, were not based on new facts, but rather were a repetition of
allegations from plaintiff’s original and prior amended pleadings. Moreover, in ruling on
the first anti-SLAPP motion, Judge Palmer expressly stated that the Department’s alleged
actions of “‘instituting a new and frivolous misconduct investigation including subjecting
plaintiff to an eight-hour administrative interrogation’ and ‘unlawfully and maliciously
notifying plaintiff that the misconduct investigation resulted in a sustained finding of
dishonesty against him without any “Skelly” [i.e., POBRA] rights’ . . . describe[d]
protected activity of the defendants. The investigation of misconduct by [the
Department’s] employees and communicating the findings of that investigation are free
speech rights of the [Department] and involve public issues.” Therefore, because the
allegations concerning the violations of plaintiff’s POBRA rights were not based on new


14
        In a footnote in his letter brief, plaintiff notes that our letter requesting briefing on
the Civil Code section 47 issue omitted any reference to the allegations in the amendment
to the third amended complaint concerning the violation of his POBRA rights. As
explained above, the omission was purposeful because those allegations were not based
on new facts that occurred after the filing of the original pleading. Thus, those prior
allegations could not be asserted as a basis for a renewed retaliation claim that had
previously been stricken by Judge Palmer. (See Simmons, supra, 92 Cal.App.4th 1068.)

                                               28
facts and were necessarily related to plaintiff’s prior allegations concerning the
misconduct investigation and the issuance of the closure letter, they could not be
reasserted in the newly alleged retaliation claim based on the reasons and authorities
discussed above, including the holding in Simmons, supra, 92 Cal.App.4th 1068.
       As to the two newly alleged adverse employment actions, we reject plaintiff’s
assertions that they were based solely on noncommunicative conduct. As noted, the
gravamen of those alleged adverse actions was based on the sending of plaintiff’s
complaint to certain management personnel to advise them of the pendency of the action
and the following of the advice of counsel by refusing to pay the disputed interest on
back pay. Each of those actions was communicative and directly related to pending
litigation. As a result, the alleged conduct relating to those actions was privileged. (See
Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065; Gallanis-Politis v. Medina, supra, 152
Cal.App.4th at p. 616.)




                                             29
                                     DISPOSITION


       The orders granting leave to file an amendment to the third amended complaint
and denying the second anti-SLAPP motion are reversed. The Department is awarded
costs on appeal. On remand, the trial court shall determine the Department’s entitlement
to attorney fees under section 425.16, subdivision (c)(1).
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 MOSK, J.

We concur:



              TURNER, P. J.



              BAKER, J.




                                            30
