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Dunn v. City of Escondido

United States District Court, S.D. California

March 29, 2018

TONY DUNN, Plaintiff,
CITY OF ESCONDIDO, MONICA WALLACE, and DOES 1 through 25, inclusive, Defendants.


          Hon Roger T. Benitez, United States District Judge.

         Before the Court is the Special Motion to Strike (Anti-SLAPP)[1] filed by Defendant Monica Wallace (“Wallace”). The motion is fully briefed. The Court finds the motion suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, Defendants Special Motion to Strike is GRANTED.


         At issue is Plaintiff Tony Dunn's (“Dunn”) suit against Defendants City of Escondido (“City”) and Monica Wallace (“Wallace”) for Race Discrimination, Harassment, Age Discrimination, Retaliation, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Unfair/Unlawful Business Practices, Negligence, Negligent Infliction of Emotional Distress, and Slander. (Comp. No. 1.) Dunn, a 40-year-old African-American male and member of the Escondido City Employees Association (“ECEA”) was employed by City as an Environmental Compliance Inspector.[3] (Comp. ¶¶ 9-10.)

         Dunn's Complaint alleges on August 19, 2016, Wallace, Utilities Department Assistant, told her supervisor, Christopher McKinney (“McKinney”) Director of Utilities, Dunn had “gossiped” to her about him [McKinney]. Specifically, Dunn told Wallace, McKinney and Kim Silva (“Silva”) City employee, were having an inappropriate sexual relationship. (Id. at ¶¶ 13-16.)

         On August 24, 2016, McKinney summoned Dunn to his office to discuss Wallace's statement which he denied. Despite Dunn's denial, McKinney ordered a full investigation to confirm or disprove Wallace's claim. In accordance with McKinney's order, Matilde Hlawek (“Hlawek”), Assistant Director of Human Resources, hired Chuck Thomas (“Thomas”) to conduct a full investigation. (Id. at ¶¶ 17-21.) Between August 25, 2016, and October 12, 2016, while the investigation was underway, Dunn alleges Thomas, McKinney, Helen Davies (“Davies”), Environmental Programs Manager, Hlawek and other unknown City employees conspired to corroborate false claims against Dunn alleging he was hostile, disrespectful, and often insubordinate of City's “Personnel Rules and Regulations.” (Id. at ¶¶ 22-23.)

         Believing he was being treated unfairly by City, in October 2016, Dunn filed renewed complaints with the California Department of Fair Employment and Housing (“DFEH”) as well as the EEOC alleging discrimination and harassment. On November 30, 2016, Dunn discussed his recent EEOC complaint with Hlawek.[4] On December 12, 2016, Dunn was suspended for five working days by Davies for an adverse employment action. (Id. at ¶¶ 25, 28, 33.)

         In December 2016, the DFEH issued a notice of right to bring a civil action in response to the complaint. Dunn filed his claim for damages which City rejected by letter dated March 27, 2017. On May 11, 2017, the EEOC issued a notice of right to bring a civil action in response to the complaint. (Id. at ¶¶ 34-37.) On May 29, 2017, Dunn filed a Complaint seeking Damages for ten causes of action. (Doc. No. 1.) The Eighth Cause of Action for Negligence and Tenth Cause of Action for Slander apply to Wallace and are the subject of this Special Motion to Strike (“Strike”). (Doc. No. 13.) Wallace seeks dismissal of all pending claims against her. (Id.) Wallace believes Dunn's suit against her and City is aimed at chilling the speech of not only her but also the speech of any other City employees that might dare to report misconduct by him. (Id.) Dunn filed a Response to the motion (Doc. No. 18) and Wallace filed a timely Reply (Doc. No. 19).


         “California law provides for the pre-trial dismissal of certain actions, known as Strategic Lawsuits Against Public Participation, or SLAPPs, that ‘masquerade as ordinary lawsuits' but are intended to deter ordinary people ‘from exercising their political or legal rights or to punish them for doing so.' ” Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013) (quoting Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003)). Specifically, the anti-SLAPP statute provides that any “cause of action against a person arising from any act of that person in furtherance of that person's right of … free speech … in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that [he or she] will prevail on the claim.” Cal. Civ. Proc. Code § 425.16.

         In ruling on an anti-SLAPP motion, the Court engages in a two-step process.[5]“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” Hilton v. Hallmark Cards, 599 F.3d 894, 903 (9th Cir. 2010). If the defendant succeeds in doing so, the burden then shifts to the plaintiff to establish a “reasonable probability” of prevailing on the defamation claim. Batzel, 333 F.3d at 1024. That is, “plaintiff must demonstrate that the complaint is both [1] legally sufficient and [2] supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Hilton, 599 F.3d at 903 (citing Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811, 821 (2002)).[6] “The applicable burden ‘is much like that used in determining a motion for nonsuit or directed verdict, which mandates dismissal when no reasonable jury could find for the plaintiff.' ” Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 599 (9th Cir. 2010) (citation omitted) (emphasis added). Notably, the court “does not weigh the credibility or comparative probative strength of competing evidence.” (Id.)

         “[W]hile the inquiry on the motion to strike may glance at the merits, its central purpose is to provide an added statutory protection from the burdens of litigation that is unavailable during the ultimate merits inquiry.” Makaeff, 736 F.3d at 1185. In other words, “the claim should be dismissed if the plaintiff presents an insufficient legal basis for it, or if, on the basis of the facts shown by the plaintiff, ‘no reasonable jury could find for the plaintiff.'” Makaeff, 715 F.3d at 261 (quoting Metabolife Int'l, Inc. Wornick, 264 F.3d 832, 840 (9th Cir. 2001)). If, however, “the court denies an anti-SLAPP motion to strike, the parties continue with discovery.”[7] See § 425.16(g).


         I. The Anti-SLAPP Statute Applies because Plaintiff's Claim Arises from Acts in Furtherance of Wallace's Free Speech Rights.

         As an initial matter, the Court must determine whether Wallace can satisfy her burden of demonstrating the challenged causes of action arose from a protected activity. The Court finds that the challenged activity forming the basis of Dunn's claims is Wallace's statement to McKinney - a statement made “in furtherance of … [her] free speech” rights and “in connection with a public issue.” Cal. Civ. Proc. Code § 425.16(b)(1).

         The anti-SLAPP statute “is to be construed broadly.” Hilton, F.3d at 902.

         Pursuant to the statute, an act made “in connection with a ...

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