In an unpublished decision on Friday, Division One of the Fourth Appellate District ruled that a retaliation civil claim filed by a former public defender against the County of San Bernardino was a Strategic Lawsuit Against Public Participation (“SLAPP”) and subject to accelerated scrutiny and dismissal under California’s anti-SLAPP law. In Lawrence v. County of San Bernardino (Dec. 12, 2014 D066204), the Court reviewed a decision by Judge Donna G. Garza granting in part and denying in part an anti-SLAPP motion. The Court of Appeal held that the entire action was subject to anti-SLAPP review and because the plaintiff could not prove a probability of prevailing on his claims, the entire action was ordered dismissed. Lawrence alleged that he was investigated and fired as a public defender as retaliation for reporting his superiors for conflict of interest and other rules. The Court of Appeal ruled that all of his claims arose from the investigation into Lawrence and the ensuing dismissal. Without the investigation into Lawrence, the plaintiff would have no retaliation claim. Internal investigations of misconduct by government employees are protected activity giving rise to anti-SLAPP protection. Former public defender Jeffrey Lawrence had been investigated for, among other things, allegedly secretly redacting statements from a witness interview before disclosing the interview to the prosecutor in discovery. On appeal, Lawrence was required to detail in his brief the facts demonstrating a probability of Lawrence prevailing against the County. This is an admittedly low burden. However, Lawrence’s respondent’s brief did not include a single citation to the appellate record. Instead, he invited the Court of Appeal to review 139 exhibits filed in the trial court to find support for Lawrence’s arguments. As a matter of procedure, the Court of Appeal found this improper and found that Lawrence forfeited the issue on appeal.
The teachings of the Lawrence case are two-fold: First, before filing a lawsuit that touches upon activities protected by the First Amendment, such as internal investigations, a plaintiff needs to consult with an experienced anti-SLAPP attorney to ensure that sufficient evidence exists at the outset of the lawsuit to withstand the inevitable anti-SLAPP motion. Otherwise, the plaintiff will find themselves on the losing end of an anti-SLAPP motion and a hefty attorney’s fee award. Second, on appeal, there is no excuse for forfeiting an issue because of not citing the appellate record. An experienced appellate attorney, familiar with appellate procedural rules, can ensure that arguments are preserved on appeal and considered on their merits. While no appellate attorney can guarantee a victory on appeal, an experienced appellate attorney can maximize the chances that the argument will be presented in its best light and in a manner that appellate justices expect to see it.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.