California Court of Appeals, Second District, Eighth Division
from an order of the Superior Court of Los Angeles County No.
BC683021. Susan Bryant-Deason, Judge. Affirmed.
Becerra, Attorney General, Chris A. Knudsen, Senior Assistant
Attorney General, Kenneth C. Jones, Supervising Deputy
Attorney General, and Nancy James, Deputy Attorney General,
for Defendant and Appellant.
Santiago & Jones, David G. Jones and Alex V. Vo for
Plaintiff and Respondent.
James Thomas Jeffra was an investigator employed by defendant
California State Lottery. He sued defendant, alleging
retaliation in violation of the California Whistleblower
Protection Act. (Gov. Code, § 8547.8, subd. (c).) He
alleged defendant engaged in a pretextual investigation,
ultimately forcing him to retire, after he filed a
whistleblower complaint with the California State Auditor.
filed an anti-SLAPP (strategic lawsuit against public
participation) motion to strike the complaint (Code Civ.
Proc., § 425.16), contending the complaint arose from
protected activity, namely, defendant's investigation of
possible misconduct by plaintiff. The trial court denied the
motion, finding the complaint arose “from non-protected
retaliation, not protected investigations.”
plaintiff's ensuing appeal was briefed, the California
Supreme Court decided Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871 (Wilson). In
Wilson, the court disapproved the precedent on which
the trial court here relied, and held that retaliation claims
“arise from the adverse actions allegedly taken”
- here, the investigation - “notwithstanding the
plaintiff's allegation that the actions were taken for an
improper purpose.” (Id. at p. 892.) We
conclude, consistent with Wilson, that
plaintiff's complaint arose from protected activity.
trial court did not consider whether plaintiff had
established a probability of prevailing on the merits of his
claim. Giving “careful attention to the limited nature
of a plaintiff's second-step showing” (Wilson,
supra, 7 Cal.5th at p. 892), we conclude plaintiff has
made the necessary showing. Consequently, we affirm the trial
court's order denying the anti-SLAPP motion.
Plaintiff's Complaint and Declaration
was hired by defendant as a Lottery Investigator in October
2011. His duties included investigating complaints and
allegations of administrative misconduct of Lottery ticket
retailers, claimants, distributors, suppliers, and
contractors to the Lottery. Until November 2016, when he was
placed on “administrative time off, ” his
performance was exemplary.
alleges that from 2013 through 2016, he reported to his
superiors that prizes were paid to claimants of winning
Lottery tickets who did not provide substantial proof that
they were the genuine owners of the winning tickets. He also
reported fraud among retailers of Lottery tickets and their
employees, such as narrowly scratching tickets to see if they
were winners and, if not, selling them to unsuspecting
members of the public; and widespread theft of tickets. He
also reported defendant had inadequate systems to prevent
fraud. Some superiors, in effect, told him to stay quiet
because sales were good.
made a telephonic whistleblower report in April 2016. He and
investigator Gary Galbreath made a joint written report in
late September 2016. They appended to their report copies of
documents they had created or obtained in the course of their
duties. They only provided the documents to the Auditor's
office, and to no one else.
November 14, 2016, Kelly Dixon, the special assistant to the
deputy director of the Security/Law Enforcement Division (for
which plaintiff worked) told plaintiff he was being put on
administrative leave. Plaintiff was required to turn in his
equipment and peace officer credentials and was escorted off
the premises. He was interrogated by Mr. Dixon on November
17, including about his whistleblower complaint - which he
had not told anyone about. He was later told he would lose
pension and health benefits if he was terminated while on
administrative leave. He knew of two former coworkers who had
been terminated after submitting whistleblower complaints
within the previous year. So he retired.
complaint alleged defendant's actions were “solely
based on retaliation because of Plaintiff's protected
conduct, ” and the reasons given for the investigation
and for placing him on administrative time off were
Defendant's Anti-SLAPP Motion
filed an anti-SLAPP motion, including a declaration from
James Libby, an assistant chief with the California Highway
Patrol, who was assigned to perform the duties of deputy
director of the Lottery's Security/Law Enforcement
Division. (The parties refer to this division as SLED.) Mr.
Libby was the chief law enforcement officer for the Lottery,
and oversaw a staff that included plaintiff. Among many other
duties, he was charged with “investigating employee
misconduct when I became aware of possible misconduct.”
Libby explained that, when questions arise about a claim for
Lottery winnings, an investigator is assigned to investigate
the claim. The investigator's report includes
confidential information, such as a claimant's name,
address, phone number, date of birth, social security number,
and so on. The investigation files are kept confidential,
accessible only to investigative and legal staff on a need to
October 2016, Mr. Libby saw an advertisement promoting an
investigative report scheduled to air on a CBS television
affiliate on October 27 and October 28. The advertisement
indicated the reporter (David Goldstein) was looking into
payments made to a specific Lottery winner whose claim was
not accessible to investigators for various reasons.
promotion for the CBS show indicated that Lottery insiders
were giving confidential information to Mr. Goldstein. Mr.
Libby testified he had a duty to investigate the potentially
criminal disclosure of confidential information.
the Goldstein investigative report was broadcast, Mr. Libby
began an investigation to determine who was releasing
confidential information from the Lottery. The investigation
revealed that plaintiff and two other Lottery employees had
viewed two files they were not authorized to access and
printed copies of confidential reports.
October 31, 2016, Mr. Libby initiated a formal administrative
investigation into potential misconduct by plaintiff to
determine whether he had committed misconduct by accessing
investigative files ...