UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 10, 2010
SHIREEN WRIGLEY, AN INDIVIDUAL, PLAINTIFF,
NORMA AQUAVIVA, IN HER PERSONAL CAPACITY; DOROTHY SWINGLE, IN HER PERSONAL CAPACITY, STAN ARMASKUS, IN HIS PERSONAL CAPACITY, MICHAEL D. MCDONALD, IN HIS PERSONAL CAPACITY, JOHN NEPOMECENO IN HIS PERSONAL CAPACITY, ANTHONY R. THOMPSON, IN HIS PERSONAL CAPACITY, THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION AND DOES 1-20. DEFENDANTS.
MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS AND TO STRIKE
Plaintiff Shireen Wrigley brought this action against defendants Norma Aquaviva, Dorothy Swingle, Stan Armaskus, Michael D. McDonald, John Nepomeceno, Anthony R. Thompson, and the California Department of Corrections and Rehabilitation ("CDCR") arising out of plaintiff's employment with CDCR. Presently before the court are defendants' motions to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted and to strike plaintiff's state law claim pursuant to California's anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute, California Civil Procedure Code § 425.16.
I. Factual and Procedural Background
Plaintiff worked at High Desert State Prison ("HDSP") as a licensed independent nurse practitioner from November of 2007 to May 11, 2009. (FAC ¶¶ 14, 26.) Due to her position, plaintiff became part of the CDCR Division of Correctional Health Care Services ("DCHCS"). (Id. ¶ 14.) Plaintiff provided acute medical care to prison inmates at HDSP. (Id. ¶ 15.) In June of 2008, plaintiff was assigned to the C-yard clinic, where she worked with Correctional Officer Vicki Berg. (Id. ¶ 16.) Berg would escort patients from and to their cells and provide security while the patients were seen by medical staff. (Id.) Plaintiff and Berg became roommates in October of 2008 and in early November of 2008 they became domestic partners. (Id.)
On November 24, 2008, Berg was allegedly reassigned to a temporary position as a Correctional Counselor; Correctional Officer McConnell was temporarily assigned to the medical escort position previously occupied by Berg. (Id. ¶ 17.) Berg bid on several permanent positions on February 24, 2009, including the permanent medical escort officer position at the C-yard clinic. (Id. ¶ 18.) Berg's bid for the C-yard clinic position was allegedly successful and she was to report on March 3, 2009. (Id.) Because of the temporary swap with McConnell, Berg could not report until March 23, 2009. (Id.) On March 18, 2009, Berg was allegedly informed that she could not take the C-yard position and on April 3, 2009, she was informed that the decision was made because it would violate the prison's "no fraternization" rule that prevents those in a relationship from working in "close proximity" to each other. (Id. ¶ 19.) Associate Warden Armaskus allegedly reviewed Berg's file and discovered she was a registered Domestic Partner with plaintiff, and believed that the medical escort position at the C-yard would put Berg in close proximity with plaintiff. (Id.) Plaintiff alleges that she and Berg would not have worked in "close proximity" to each other at the C-yard. (Id.)
Berg filed a union grievance on April 10, 2009, alleging, inter alia, that the HDSP "no fraternization" policy was not enforced against heterosexuals. (Id. ¶ 21.) Plaintiff alleges that Armaskus then asked Thompson to write a false and defamatory memorandum to the Health Care Manager, defendant Aquaviva, regarding plaintiff. (Id. ¶ 22.) Plaintiff alleges Thompson wrote the memorandum based on information provided by McConnell, who is a friend of Thompson's. (Id.) Plaintiff alleges that Thompson published the memorandum to Armaskus, who in turn published it to Aquaviva, who in turn published it to plaintiff's supervisor, Dr. Swingle, who published it to Dr. Nepomeceno. (Id.) Dr. Swingle allegedly told plaintiff about the memorandum on May 6, 2009, and plaintiff requested and was given a copy of the memorandum so that she could rebut the statements made therein. (Id. ¶ 23.)
Plaintiff alleges that on May 7, 2009, Swingle told her that Aquaviva was upset that plaintiff had a copy of the memorandum and that Aquaviva wanted to meet with plaintiff. (Id. ¶ 24.) On May 8, 2009, plaintiff alleges she was summoned to Swingle's office, where Aquaviva asked her why she distributed the memorandum to others. (Id. ¶ 25.) Plaintiff denies distributing the memorandum. (Id.) After leaving the meeting, plaintiff allegedly retrieved two voicemail messages: one indicating that plaintiff was terminated from her position at HDSP and another sent half an hour after the first stating she was not terminated. (Id.) On May 11, 2009, plaintiff was allegedly informed by Nepomeceno that she had been permanently reassigned to B-yard clinic. (Id. ¶ 26.) Plaintiff alleges that later that day she was informed by Swingle that she was being terminated because she "was too abrasive." (Id.) The next day Berg was allegedly informed she could have the medical escort position at C-yard. (Id. ¶ 27.)
Plaintiff filed this suit on March 24, 2010. (Docket No. 1.) CDCR's motion to dismiss the defamation claim against it was denied on May 28, 2010. (Docket No. 12.) Before the court ruled on defendants' original motions to dismiss and to strike the Complaint, the court gave plaintiff leave to file an amended complaint. (Docket No. 28.) Plaintiff filed the FAC (Docket No. 30) on August 30, 2010, alleging claims for (1) violations of the Civil Rights Act, 42 U.S.C. § 1983, based on alleged procedural due process violations by defendants Aquaviva, Swingle, Armaskus, McDonald, and Nepomeceno; (2) violations of § 1983 based on alleged equal protection violations by defendants Aquaviva and Armaskus; and (3) defamation by CDCR, Aquaviva, Thompson, and Armaskus. Defendants now move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike the defamation claim under California Civil Procedure Code § 425.16.
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that the pleading standard rests on two principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. While showing an entitlement to relief "does not require 'detailed factual allegations,'... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. If the pleadings "do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).*fn1
A. Section 1983 Procedural Due Process Claim against Aquaviva, Swingle, Armaskus, McDonald, and Nepomeceno
Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights that are conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Plaintiff brings a § 1983 claim based on the deprivation of her procedural due process rights under the Fourteenth Amendment.
"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.'" Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether an official is entitled to qualified immunity, a court may begin with the question of whether, "[t]aken in the light most favorable to the party asserting the injury,  the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)), rev'd by Pearson, 129 S.Ct. at 818 (holding that the Saucier two-step procedure for determining qualified immunity in which the court must first determine whether there is a constitutional violation is not mandatory).
Assuming there is a constitutional violation, the second question the court should ask is whether the officer's conduct violated a clearly established right. Id. Finally, if the right is clearly established, the court should determine whether a reasonable officer would know that his conduct violated the clearly established right. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). If the court finds the constitutional right was clearly established such that a reasonable officer would be aware that his or her conduct was unconstitutional, then the officer is not entitled to qualified immunity. Pearson, 129 S.Ct. at 816.
Here, the court need not decide the question of whether there was a constitutional violation. See Pearson, 129 S.Ct. at 819 (noting that courts may want to bypass the first Saucier step when the constitutional decision would rest on an "uncertain interpretation of state law"); id. at 821 ("Adherence to Saucier's two-step protocol departs from the general rule of constitutional avoidance...."). Thus, the court now considers whether defendants' actions violated a clearly established right.
"To establish a violation of procedural due process a plaintiff must demonstrate: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (citing Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)). A government employee has a constitutionally protected property interest in continued employment when the employee has a "legitimate claim of entitlement" to the job. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972); see Perry v. Sindermann, 408 U.S. 593, 602 (1972). Laws, rules or understandings derived from independent sources such as state law create such claims of entitlement. Roth, 408 U.S. at 577. However, a "unilateral expectation" that employment will continue does not create a property interest. Id.
If under state law, employment is at-will, then the claimant has no property interest in the job. See Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993); see also Bishop v. Wood, 426 U.S. 341, 345 n.8 (1976). "There is no right [solely] under the substantive due process clause to be terminable only for cause." Portman, 995 F.2d at 902 n.1. However, where the employee has a legitimate claim of entitlement to termination only for cause, he or she has "a property interest which [is] entitled to constitutional protection." Bishop, 426 U.S. at 345 n.8.
"[T]he sufficiency of the claim of entitlement must be decided by reference to state law." Bishop, 426 U.S. at 344. Thus, the court must look to California law to determine whether plaintiff had a legitimate claim of entitlement to her job that could give rise to a procedural due process claim under federal law. See San Bernadino Physicians' Servs. Med. Grp., Inc. v. San Bernadino Cnty., 825 F.2d 1404, 1408-09 (9th Cir. 1987) ("Although the underlying substantive interest is created by 'an independent source such as state law,' federal constitutional law determines whether that interest rises to the level of a 'legitimate claim of entitlement' protected by the Due Process Clause." (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978))). "A property interest... cannot be inferred from a consistent practice without some basis in state law." Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 223 n.9 (1985); see id. ("Absent a state statute or university rule or 'anything approaching a common law of re-employment,' however, we held that [a university professor] had no property interest in the renewal of his teaching contract." (citing Roth, 408 U.S. at 564)).
Under California law, it is clear that permanent state employees possess a property interest in their job, guaranteed by statute, with attendant due process rights in their continued employment. See Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975). However, plaintiff admits that she does not have a statutory right to employment, but claims to have a property interest in her position as a nurse practitioner "under CDCR's own regulations, policies and procedures that created mutually explicit understandings that she could be terminated only for cause." (FAC ¶ 31.) She alleges that she was a "licensed independent nurse practitioner" and that her employment was governed by "the regulations, policies, and procedures set forth in the DCHCS's Health Care Professionals Orientation Manual, other DCHCS policy, procedure and practice manuals, and the CDRC's [sic] Operations Manual." (Id. ¶ 14.)
California courts, and federal courts interpreting California law, have come to completely contradictory results regarding whether property interests in employment can be established other than by statute in California. Many courts have held that only a statute, not a contract, can create a property interest. See, e.g., Bernstein v. Lopez, 321 F.3d 903, 906 (9th Cir. 2003) ("Collecting California cases, we have recognized this long-standing principle of California law and held that neither an express nor an implied contract can restrict the reasons for, or the manner of, the termination of public employment provided by California statute." (citing Portman, 995 F.2d at 905)); Nunez v. City of L.A., 147 F.3d 867, 872 (9th Cir. 1998) ("In California, the terms and conditions of employment are generally 'fixed by the statute, rules or regulations creating it, not by contract (even if one is involved).'" (quoting Williams v. L.A. Cnty. Dep't of Water & Power, 130 Cal. App. 3d 677, 680 (2d Dist. 1982))); Portman, 995 F.2d at 905 ("Under California law, the terms of public employment are governed entirely by statute, not by contract, and hence 'as a matter of law, there can be no express or implied-in-fact contract... which restricts the manner or reasons for termination....'" (quoting Summers v. City of Cathedral City, 225 Cal. App. 3d 1047, 1065 (4th Dist. 1990))); Miller v. State of Cal., 18 Cal. 3d 808, 813 (1977) ("[I]t is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law."); Markman v. Cnty. of L.A., 35 Cal. App. 3d 132, 134 (2d Dist. 1973) ("The terms and conditions relating to employment by a public agency are strictly controlled by statute or ordinance, rather than by ordinary contractual standards....").
Apparently the "well settled" California law is not quite so settled, considering that other cases have held that express and implied-in-fact contracts can give rise to a property interest. See, e.g., San Bernardino Physicians' Servs., 825 F.2d at 1408 ("Thus, a constitutionally protectible entitlement may arise from contractual language providing for discharge from employment only for 'cause,' or even from the mere fact that a contract provides for continued employment during a fixed term.") (citation omitted); Flores v. Von Kleist, --- F. Supp. 2d ----, No. 2:08-cv-02499 GEB JFM, 2010 WL 3582540, at *13 (E.D. Cal. Sept. 10, 2010) ("Under California law, an employment contract can expand the pre-removal rights of a government employee and give rise to a protectible property interest." (citing Jones v. Palm Springs United Sch. Dist., 170 Cal. App. 3d 518, 529 (4th Dist. 1985) ("school districts have the authority to grant predemotion rights to administrative employees during the term of their contracts"))); Walker v. N. San Diego Cnty. Hosp. Dist., 135 Cal. App. 3d 896, 901 (4th Dist. 1982) (there is a "fundamental principle that property interests protected by the due process provision of both the state and federal Constitution may arise from contract as well as from the language of a statute.").*fn2
The best explanation for the obvious contradiction in the cases is that California and federal courts may have seen the language in Roth and Perry referring to contract-created interests and assumed, without investigating, that those sorts of interests existed under California law. See Walker, 135 Cal. App. 3d at 901 ("A term of employment set by contract has been recognized as a property right which the state cannot extinguish without conforming to the dictates of procedural due process." (quoting Perry, 408 U.S. at 601; Roth, 408 U.S. at 576; Williams v. County of L.A., 22 Cal.3d 731 (1978) (assuming without deciding that a contract could give rise to a property interest); Hostrop v. Bd. of Jr. Coll. Dist. No. 515, 523 F.2d 569 (7th Cir. 1975))).
Whatever the explanation, it is impossible to hold that termination of a registry employee without due process, in a state where government employment is generally held by statute and the employee had at best a contract with a third party, is a clearly established violation of federal law. Even if it could somehow be shown that plaintiff did have a property interest in her employment, a reasonable person would not have known that plaintiff's termination could constitute a due process violation. See Blantz v. Cal. Dep't of Corr. & Rehab., No. 09cv2145-L, 2010 WL 3339404, at *4 (S.D. Cal. Aug. 24, 2010) ("[A] reasonable CDCR officer would have believed that [a licensed independent practitioner] did not have a property interest in her job and that her due process rights were not violated when she was terminated."). Thus, plaintiff's procedural due process claim will be dismissed on the ground that defendants are entitled to qualified immunity.
B. Section 1983 Equal Protection Claim against Aquaviva and Armaskus
Plaintiff also brings a claim under § 1983 for an equal protection violation, claiming that defendants Armaskus and Aquaviva caused the publication of a memorandum about plaintiff that led to her termination, which they would not have done to a similarly-situated heterosexual. The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws." "The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)).
"To establish a § 1983 equal protection violation, [plaintiff] must show that the defendants, acting under color of state law, discriminated against [her] as [a] member of an identifiable class and that the discrimination was intentional." Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003). Plaintiff has sufficiently alleged these elements and thus survives the motion to dismiss her claim for equal protection.
Defendants are not entitled to qualified immunity on plaintiff's equal protection claim. Discrimination on the basis of sexual orientation is a clearly established violation of federal law. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010); see also Elliot-Park v. Manglona, 592 F.3d 1003, 1009 (9th Cir. 2010) ("[a]s early as 1990, we established the underlying proposition that such conduct violates constitutional rights: state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection." (quoting Flores, 324 F.3d at 1137) (alteration in original)). A reasonable officer would certainly know that terminating an employee because of her sexual orientation would violate federal law. Thus, defendants are not entitled to qualified immunity, and the court will deny defendants' motion to dismiss the claim.
C. Defamation Claim against CDCR, Aquaviva, Thompson, and Armaskus
"The tort of defamation 'involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.'" Taus v. Loftus, 40 Cal. 4th 683, 720 (2007) (quoting 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts § 529, at 782). Defendants argue that the memorandum was privileged under California Code sections 47(b) and 47(c), the defendants are immune under California Government Code section 821.6, the defamation claim must be dismissed as a Strategic Lawsuit Against Public Participation ("SLAPP"), and the Tort Claims Act precludes plaintiff from bringing a claim against Armaskus.
1. California Civil Code section 47(b)
California Civil Code section 47(b) provides that "a privileged publication or broadcast is one made:... (b) In any [legislative or judicial proceeding, or] (3) in any other official proceeding authorized by law...." Cal. Civ. Code § 47(b). On May 28, 2010, the court denied CDCR's motion to dismiss the defamation claim as privileged under section 47(b). (Docket No. 12.) The court held that although intent to initiate agency action can constitute an official proceeding for purposes of the section 47(b) privilege, plaintiff's complaint sufficiently alleged that the memorandum was not written or published with that intent. As the same standards apply to the current motion, the court will once again deny defendants' motion to dismiss the defamation claim as privileged under section 47(b).
2. California Civil Code section 47(c)
California Civil Code section 47(c) provides that a "privileged publication or broadcast is one made":
In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.
Cal. Civ. Code § 47(c). This privilege is a codification of the common interest privilege, pursuant to which the defendant bears the initial burden of demonstrating that the allegedly defamatory communication was made upon a privileged occasion, and the plaintiff then bears the burden of proving that the defendant made the statement with malice. Lundquist v. Reusser, 7 Cal. 4th 1193, 1208 (1994).
Plaintiff does not dispute that the memorandum is covered by the section 47(c) privilege. Internal memoranda regarding a worker's performance are certainly matters of common interest to the parties involved. See Deaile v. Gen. Tel. Co., 40 Cal. App. 3d 841, 846 (2d Dist. 1974) (allegedly defamatory communications to fellow employees were protected by section 47 privilege); see also Rudwall v. Blackrock, Inc., No. C 06-2992, 2006 WL 3462792, *3 (N.D. Cal. Nov. 30, 2006). Instead, plaintiff argues that the memorandum is excepted from the privilege because defendants maliciously published it.
To defeat the qualified privilege, plaintiff must show "actual malice," which can be established by "a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights." Roemer v. Retail Credit Co., 44 Cal. App. 3d 926, 936 (1st Dist. 1975); see Frommoethelydo v. Fire Ins. Exch., 42 Cal. 3d 208, 217 (1986). Plaintiff must plead specific facts, beyond conclusory allegations of malice. Kacludis v. GTE Sprint Commc'ns Corp., 806 F. Supp. 866, 872 (N.D. Cal. 1992); Robomatic, Inc. v. Vetco Offshore, 225 Cal. App. 3d 270, 276 (2d Dist. 1990) ("A general allegation of malice will not suffice; plaintiff must allege detailed facts showing defendant's ill will towards him."). Malice cannot be inferred from the communication. Cal. Civ. Code § 48.
Plaintiff alleges that Armaskus "directed Tony Thompson to write a false and defamatory memorandum addressed to Norma Acquaviva [sic] regarding Plaintiff that placed Plaintiff in a false light and damaged Plaintiff's reputation" (FAC ¶ 22), "then publish[ed] it to Acquaviva [sic] with the intention that Plaintiff's medical staff privileges would be affected in some way so that the Berg grievance would never begin or end quickly, sparing him from having to further deal with the grievance." (Id. ¶ 40.) Plaintiff also alleges that Aquaviva "indicated that Plaintiff 'had better shut her mouth if she wanted to keep her job'" and "wanted [Plaintiff's] head on a platter for making her nursing staff look bad." (Id. ¶ 50.) These allegations are sufficient at the pleading stage to show Armaskus and Aquaviva's ill will toward plaintiff. However, plaintiff alleges that Thompson wrote the memorandum "at the request and direction of Armaskus" (id. ¶ 48), and accuses him of "inadequate and/or reckless investigation." (Id. ¶ 50.) These allegations are insufficient to show malice on the part of Thompson, who according to plaintiff was simply following orders by writing the memorandum. Accordingly, Thompson is covered by the section 47(c) privilege and the defamation claim will be dismissed as to him.
3. California Government Code section 821.6 California Government
Code section 821.6 states: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause." Cal. Gov't Code § 821.6. Although the section has primarily been applied to immunize prosecuting attorneys and other similar individuals, it is not restricted to legally trained personnel but applies to all employees of a public entity. Johnson v. City of Pacifica, 4 Cal. App. 3d 82, 85 (1st Dist. 1970). Neither is the section "limited to suits for damages for malicious prosecution, although that is a principal use of the statute." Kayfetz v. State of Cal., 156 Cal. App. 3d 491, 497 (1st Dist. 1984).
Investigation of an employee can be considered part of an "administrative proceeding" within the scope of the section. Kemmerer v. Cnty. of Fresno, 200 Cal. App. 3d 1426, 1436-37 (5th Dist. 1988); see also Paterson v. City of L.A., 174 Cal. App. 4th 1393, 1405 (2d Dist. 2009) ("[S]section 821.6 extends to actions taken in preparation for formal proceedings, including investigation, which is an 'essential step' toward the institution of formal proceedings." (quoting Javor v. Taggart, 98 Cal. App. 4th 795, 808 (2d Dist. 2002))). However, taking the facts in the light most favorable to plaintiff, the memorandum was used privately by the defendants in an effort to cause plaintiff's termination, and was never used as part of an investigation or in preparation for formal proceedings. The court therefore cannot conclude as a matter of law that defendants are immunized by section 821.6.
4. Anti-SLAPP Special Motion to Strike
The California legislature enacted its anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16, to "allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation." Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). "California's anti-SLAPP statute allows a defendant to move to strike a plaintiff's complaint if it 'aris[es] from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.'" Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (quoting Cal. Civ. Proc. Code § 425.16(b)(1)); see also Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1123 (1999) (defendant "need not separately demonstrate that the statement concerned an issue of public significance"). The special motion to strike under the anti-SLAPP statute is available to litigants proceeding in federal court. Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206-07 (9th Cir. 2005).
"A court considering a motion to strike under the anti-SLAPP statute must engage in a two-part inquiry." Vess, 317 F.3d at 1110. First, "the defendant is required to make a prima facie showing that the plaintiff's suit arises from an act by the defendant made in connection with a public issue in furtherance of the defendant's right to free speech under the United States or California Constitution." Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003). Second, "[t]he burden then shifts to the plaintiff to establish a reasonable probability that the plaintiff will prevail on his or her  claim." Id.
An "act in furtherance of a person's right of petition or free speech" includes:
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Cal. Civ. Proc. Code § 425.16(e). Plaintiff's defamation claim is based solely on the memorandum written by Thompson, which defendants believe was made in connection with an "official proceeding authorized by law." Id. § 425.16(e)(1), (e)(2).
An internal investigation by a state law enforcement agency is an official proceeding authorized by law within the meaning of section 425.16. Hansen v. Dep't of Corr. & Rehab., 171 Cal. App. 4th 1537, 1544 (5th Dist. 2008). However, the court has previously found that as pled the memorandum did not constitute an "official proceeding" under the section 47(b) privilege. Although the anti-SLAPP statute and the 47(b) privilege are not coextensive, courts may "look to the litigation [47(b)] privilege as an aid in construing the scope of [the anti-SLAPP statute] with respect to the first step of the two-step anti-SLAPP inquiry." Flatley v. Mauro, 39 Cal. 4th 299, 323 (2006); see Lee v. Fick, 135 Cal. App. 4th 89, 96 (2d Dist. 2005) ("[T]he 'official proceeding[s]' provision of section 425.16, subdivision (e)(1) has language parallel to that contained in the 'official proceeding[s]' provision of Civil Code section 47, subdivision (b)."). Under section 47(b), "communications to an official agency intended to induce the agency to initiate action" are privileged, Lee, 135 Cal. App. 4th at 96, as are statements to governmental officials that may "precede the initiation of formal proceedings." Slaughter v. Friedman, 32 Cal. 3d 149, 156 (1982); see Hagberg v. Cal. Fed. Bank FSB, 32 Cal. 4th 350, 362-64 (2004) (citing cases). Similarly, "communications preparatory to or in anticipation of the bringing of an official proceeding are within the protection of section 425.16." Hansen, 171 Cal. App. 4th at 1544. However, section 425.16, like section 47(b), applies only to those communications intended to initiate an official proceeding.
Plaintiff argues that because only the Professional Practices Executive Committee ("PPEC") had authority to initiate an investigation, the memorandum, which was published to Aquaviva, then Swingle and possibly others, could not have been an attempt to initiate an "official proceeding." (See FAC ¶ 22, 24, 31.) While it is immaterial whether plaintiff was ultimately denied the process she was due under the PPEC, Lee, 135 Cal. App. 4th at 97 ("[T]he privilege does not depend on what action, if any, the official agency takes on a complaint."), defendants' purpose in publishing the memorandum is determinative. In some circumstances it can be "obvious from the content of the [writing]" that it was an attempt to prompt official action. Id. at 97. The memorandum stated that plaintiff created "a hostile work environment due to various actions on her part that were described as disrespectful and unprofessional." (FAC ¶ 48.) While the purpose cannot be divined solely by looking to the letter's intended recipient, Lee, 135 Cal. App. 4th at 97, in this case it is significant that Aquaviva allegedly published the memorandum to Swingle instead of to the PPEC.
Plaintiff has alleged that the memorandum was not part of an internal investigation nor was it intended to initiate such an investigation. The court has already found that it is plausible that defendants' purpose was not to initiate any "official proceeding" against plaintiff, but to defame the plaintiff. Defendants have not demonstrated a prima facie case that the memorandum was an act in furtherance of their right of petition or free speech. Thus, the court finds that plaintiff's defamation claim does not arise from an official proceeding authorized by law, and defendants' anti-SLAPP motion will be denied.
5. Tort Claim Against Armaskus
Under the Tort Claims Act, Cal. Gov't Code §§ 810-998.3, a plaintiff may not maintain an action for money damages against a public entity unless a written claim has first been presented to the public entity and rejected in whole or in part. Id. §§ 905, 905.2, 945.4. Failure to timely present a claim for damages to a public entity bars a plaintiff from filing a lawsuit against that entity. State of Cal. v. Super. Ct. (Bodde), 32 Cal. 4th 1234, 1245 (2004). Before a cause of action may be stated, a plaintiff must allege either compliance with this procedure or circumstances excusing noncompliance. Id. The claim must include, inter alia, "[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known." Cal. Gov't Code § 910(e) (emphasis added). "The purpose of these statutes is 'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.'" Stockett v. Ass'n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004) (quoting City of San Jose v. Super. Ct., 12 Cal. 3d 447, 455 (1974)).
Defendants complain that plaintiff did not adequately file a government claim form because her claim included only Aquaviva, Thompson, and "others known to CDRC [sic], High Desert State Prison" and alleged that "[a]dministration caused the memo to drafted [sic] knowing it was false, published it, then attempted to retract it after publication." (Defs.' Mem. of P. & A. in Supp. of Mot. to Dismiss FAC at 28.) Defendants thus move to dismiss the defamation claim against Armaskus on the ground that he was not named in plaintiff's tort claim regarding the memorandum.
"As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions, the claims statute 'should not be applied to snare the unwary where its purpose has been satisfied.'" Stockett, 34 Cal. 4th at 446 (citation omitted) (quoting Elias v. San Bernadino Cnty. Flood Control Dist., 68 Cal. App. 3d 70, 74 (4th Dist. 1977)). When a claim is deficient in some way, the doctrine of substantial compliance may validate the claim "if it substantially complies with all of the statutory requirements... even though it is technically deficient in one or more particulars." Santee v. Santa Clara Cnty. Office of Educ., 220 Cal. App. 3d 702, 713 (6th Dist. 1990). "The doctrine is based on the premise that substantial compliance fulfills the purpose of the claims statutes, namely, to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation." Id. The doctrine cannot, however, "cure total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute." Loehr v. Ventura Cnty. Cmty. Coll. Dist., 147 Cal. App. 3d 1071, 1083 (2d Dist. 1983). "The test for substantial compliance is whether the face of the filed claim discloses sufficient information to enable the public entity to make an adequate investigation of the claim's merits and settle it without the expense of litigation." Connelly v. Cnty. of Fresno, 146 Cal. App. 4th 29, 38 (5th Dist. 2006). Failure to amend a claim "shall not constitute a defense to any action brought upon the cause of action for which the claim was presented if the court finds that the claim as presented complied substantially with Sections 910 and 901.2...." Cal. Gov't Code § 910.6(b).
Plaintiff's claim substantially complied with the Tort Claims Act and thus her defamation claim against Armaskus is not barred. The claim clearly gave defendants enough information to investigate its merits. Defendants' investigation apparently uncovered Armaskus's involvement with the memorandum, since they revealed that fact in their original anti-SLAPP motion to strike, leading plaintiff to amend her complaint to include Armaskus in the defamation claim. (Pl.'s Opp'n to Defs.' Mot. to Dismiss Pl.'s FAC at 28:13-16.) Thus, the court will not dismiss plaintiff's defamation claim against Armaskus.
IT IS THEREFORE ORDERED that defendants' motion to dismiss be, and the same hereby is, GRANTED with respect to plaintiff's due process claim under § 1983 and plaintiff's defamation claim against defendant Thompson and DENIED in all other respects.
Plaintiff has twenty days from the date of this Order to file an amended complaint, if she can do so consistent with this Order.