Alexander v. City of Santa Cruz CA6

Filed 10/29/25 Alexander v. City of Santa Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

MICHAEL T. ALEXANDER, H051774

(Santa Cruz County

Plaintiff and Appellant, Super. Ct. No. 23CV01364)

v.

CITY OF SANTA CRUZ et al.,

Defendants and Respondents.

Michael T. Alexander, representing himself as appellant, sued the City

of Santa Cruz (City) and several members of the City’s police department for

disability discrimination and other civil rights claims. Alexander’s claims

arise from an incident in which Alexander alleges the police confronted and

threatened to arrest him as he waited in his wheelchair to file a complaint at

the City’s main post office. The defendants brought an anti-SLAPP motion1

to strike the complaint, in its entirety, under Code of Civil Procedure2 section

1 An anti-SLAPP motion is “a special motion to strike a ‘strategic

lawsuit against public participation (SLAPP).’ ” (Parrish v. Latham &

Watkins (2017) 3 Cal.5th 767, 773–774.)

2 All further unspecified statutory references are to the Code of Civil

Procedure.

425.16. The trial court granted the anti-SLAPP motion after concluding that

each of Alexander’s claims arose from protected speech, and Alexander had

not met his burden to establish a possibility of prevailing on those claims.

We affirm the order granting the special motion to strike.

I. FACTS AND PROCEDURAL BACKGROUND

We draw the following facts from the pleadings and supporting

declarations submitted in the trial court. We accept as true Alexander’s

factual assertions for the purpose of resolving whether the court erred in

granting the anti-SLAPP motion and consider only whether any contrary

evidence from defendants establishes their entitlement to prevail as a matter

of law. (Park v. Board of Trustees of California State University (2017) 2

Cal.5th 1057, 1067 (Park); Laker v. Board of Trustees of California State

University (2019) 32 Cal.App.5th 745, 754 (Laker).)

Alexander is a disabled person under California law and has been

classified as disabled by the Social Security Administration since 1992.

Alexander’s disabilities affect his neurological and musculoskeletal functions.

He requires the use of a wheelchair for mobility, and his physical

impairments significantly limit his major life activities, including caring for

himself, performing manual tasks, walking, and working.

On May 10, 2022, Alexander, using his wheelchair, visited the Santa

Cruz Main Post Office on Front Street. He asked a postal service employee

for information about filing an Americans with Disabilities Act (ADA)

complaint.3 Alexander told the postal service employees that he needed them

3 Alexander asserts that, as a disabled person protected under the ADA

and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), he is

aware of his right to file an ADA complaint and the procedures for doing so

pursuant to 39 Code of Federal Regulations part 255.6. That provision

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to print out the form for filing the complaint because he did not have online

access. The employees told him to wait while they assisted other customers.

Alexander learned a short time later that they had called the police.

Santa Cruz Police Officer Alberto Fletes (erroneously named in the

complaint as “Arturo” Fletes) arrived at the post office. Alexander explained

that he was waiting for assistance to file an ADA complaint. Officer Fletes,

who was in uniform wearing “battlefield combat attire” and had a visible

firearm, caused Alexander to feel physically intimidated and fear for his

safety. Officer Fletes told Alexander that the post office supervisor had asked

that Alexander leave, and Alexander was trespassing. Alexander responded

that the post office employees were committing a hate crime by filing a false

police report and using the police to carry out their discriminatory action by

“ ‘running [him] off,’ ” and that Officer Fletes’s conduct was aiding the

employees in racially profiling and discriminating against a disabled person

trying to file a complaint. Officer Fletes repeated his threat to arrest

Alexander for trespassing and ignored Alexander’s request to make a police

report of the hate crime taking place. Fearing for his physical and

psychological safety in light of Officer Fletes’s threatened action to arrest

him, Alexander left the post office.

Following the incident, Alexander filed a complaint with the

independent police auditor of the Santa Cruz Police Department and the

Santa Cruz Sheriff’s Office. The complaint was routed to Santa Cruz Police

Sergeant Erich Hoppe and reported to Chief of Police Bernie Escalante.

Alexander received a response via e-mail from Sergeant Hoppe stating that

applies the procedures set forth therein “to section 504 complaints alleging

disability discrimination in any program or activity of the Postal Service and

brought by members of the public.” (39 C.F.R. § 255.6(b).)

3

he and Chief Escalante had reviewed the report and body camera footage and

concluded Officer Fletes had done nothing wrong. Sergeant Hoppe and Chief

Escalante did not respond to Alexander’s objection and demand for an

investigation consistent with department policy.

The incident resulted in Alexander experiencing and being diagnosed

with severe emotional distress, PTSD, panic attacks, anxiety, depression, and

physical ailments from which Alexander did not previously suffer. Alexander

unsuccessfully sought to obtain copies of the body camera footage via public

records request, but the footage was ruled exempt from disclosure and the

matter dismissed.

In June 2023, Alexander filed the instant civil action against the City,

Officer Fletes, Chief Escalante, Sergeant Hoppe, and unnamed “Doe”

defendants (together, defendants). The complaint alleged that Alexander did

not “raise his voice, become belligerent, or exhibit any disturbing or

disruptive conduct that would be deemed [] a disturbance or that would

interfere or otherwise affect the due course of business of the USPS facility,”

yet Officer Fletes “abused and discriminated against [him] as a disabled and

dependent adult,” causing Alexander to sustain injuries. It alleged that “[a]s

a direct result of the threats, intimidation, and coercion i.e., what Officer

Fletes said, his physical stance, the battlefield combat attire, what Officer

Fletes was wearing, and the ‘personal-visible-threat-appearance [] [Officer

Fletes] presented . . . caused [Alexander] to retreat for his physical, mental[]

[and] emotional[] safety, over [his] objections, and against his free will in

reasonable fear . . . while in a wheelchair.”

Alexander’s complaint asserted 12 “claims for relief” (which we refer to

as causes of action), alleging (1) violation of the Tom Bane Civil Rights Act

(Civ. Code, § 52.1; (Bane Act)) by threat, intimidation, and coercion; (2)

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violation of the Bane Act by assault; (3) violation of the Bane Act through

civil conspiracy; (4) violation of the Ralph Civil Rights Act (Civ. Code, § 51.7;

(Ralph Act)) by threats of violence, harassment, intimidation, and coercion;

(5) and (6) violation of the Unruh Civil Rights Act (Civ. Code, §§ 51, 54, 54.1;

(Unruh Act)) for discrimination based on disability; (7) violation of the Bane

Act through a reckless disregard for Alexander’s rights; (8) violation of the

Bane Act through the intentional infliction of emotional distress; (9) violation

of Government Code section 815.6 for failure to perform a mandatory duty;

(10) civil penalties under the Bane, Ralph, and Unruh Acts; (11) violation of

the right to free speech under article I, section 2 of the California

Constitution; and (12) violation of the right to due process under article I,

section 7 of the California Constitution.4

Defendants responded to Alexander’s complaint with an anti-SLAPP

motion to strike the complaint. They argued that all 12 causes of action arose

from activity protected under section 425.16, and Alexander could not show a

prima facie probability of prevailing. Defendants submitted the declaration

of Officer Fletes in support of the anti-SLAPP motion, which explained the

officer’s encounter with Alexander at the post office.5

4 The complaint asserted the first and second causes of action under the

Bane Act against Officer Fletes and the remaining causes of action (3 through

12) against all defendants.

5 Officer Fletes stated that he was dispatched to the post office in

response to a call for service due to a male subject who refused to leave and

caused a disturbance after post office staff were unable to provide him with

his mail. The male subject, Alexander, told Officer Fletes he was waiting on

a complaint form. Post office staff explained that complaints could be made

online or by mailed letter, and Officer Fletes suggested Alexander visit the

public library to access the form online. Alexander responded that he had

vision issues and asked if Officer Fletes was there in his official capacity, to

5

Alexander filed a written opposition to the anti-SLAPP motion and

submitted a verified declaration that largely repeated the allegations in his

complaint. Alexander declared that as he waited for the post office staff to

print the complaint form, Officer Fletes “arrived and aggressively confronted

[him] without cause” and “threatened to arrest [him] multiple times if [he]

did not leave the post office, despite [Alexander] explaining [he] was waiting

for assistance with an ADA complaint form.” Alexander maintained that

“Officer Fletes’ threats felt physically intimidating and caused [Alexander]

fear for [his] safety. [Alexander] felt coerced to leave the post office against

[his] will, abandoning [his] legal right to file an ADA complaint. [Officer

Fletes’s] actions interfered with [Alexander’s] federal and state rights.”

Defendants filed a reply brief asserting that Alexander’s opposition

failed to address their arguments and included fabricated legal authority.

The trial court issued a written order granting defendants’ anti-SLAPP

motion and ordering all claims for relief be stricken and the complaint

which Officer Fletes responded affirmatively. Alexander asserted that the

post office had violated the law (“ ‘PC 422.6’ ”) and was using the officer’s

presence to threaten and intimidate him. Alexander was uncooperative when

Officer Fletes asked him to elaborate on the alleged crime, and Officer Fletes

explained that the postal supervisor had asked Alexander to leave, as the

staff was unable to assist him. Alexander denied the supervisor had asked

him to leave. Officer Fletes told Alexander that he was asking him to leave

the property on behalf of the supervisor and would issue a citation for

trespassing if Alexander refused. Alexander left the building after obtaining

Officer Fletes’s business card, name, and report number.

At no point during the encounter did Officer Fletes arrest Alexander,

issue a citation, use any physical force, or obtain any identifying information

for Alexander. Officer Fletes learned Alexander’s identity at a later date,

when Alexander contacted the police department. Alexander told Officer

Fletes during a phone call that he wanted to file a complaint against him,

and Officer Fletes informed him to contact the department and request to file

a complaint.

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dismissed with prejudice. The court found the defendants met their initial

burden of showing Alexander’s claims arose from protected activity based on

case law that statements made in connection with a criminal investigation or

police reports are protected under section 425.16, subdivision (e)(2). The

court analyzed the allegations and evidence submitted in Alexander’s

opposition with respect to the Bane Act, Ralph Act, Unruh Act, and other

claims. It concluded that oral threats of arrest were insufficient to state a

claim under the Bane Act and Ralph Act, the police department is not

considered a “ ‘business establishment’ ” for purposes of Unruh Act claims,

there was no allegation of a mandatory duty as required for Government

Code section 815.6, and Alexander had not alleged facts to support his

constitutional claims. The court also found Alexander’s noncompliance with

the Government Claims Act (see Gov. Code, § 945.4) to be an additional basis

precluding him from obtaining relief on the merits of his statutory claims.

Alexander filed a timely notice of appeal of the trial court’s order.

II. DISCUSSION

Alexander challenges the trial court’s grant of the anti-SLAPP motion

striking his complaint. He contends the ruling fundamentally misapplied the

anti-SLAPP statute and failed to recognize federally protected disability

rights. Defendants counter that the court correctly determined the asserted

claims arise from statements made by Officer Fletes during the course of a

criminal investigation and that Alexander is unable make a sufficient, prima

facie showing of entitlement to relief.

A. Principles of Appellate Review and Scope of Review

A fundamental principle of appellate review is that we presume a trial

court’s judgment is correct and the burden is on the appellant to demonstrate

that the court committed an error that justifies reversal of the judgment.

7

(L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 620 (L.O.); Hernandez v. First

Student, Inc. (2019) 37 CalApp.5th 270, 277 (Hernandez); see Jameson v.

Desta (2018) 5 Cal.5th 594, 608–609.) The appellant must support each claim

of error with meaningful analysis and citation to legal authority. (Ewald v.

Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 (Ewald).) An

appellant’s failure to raise a point (or to support it with reasoned argument

and citations to authority) allows the reviewing court to deem the

unsupported contentions forfeited. (Ibid.; L.O., at p. 620; see also Keyes v.

Bowen (2010) 189 Cal.App.4th 647, 655; In re Marriage of Falcone & Fyke

(2008) 164 Cal.App.4th 814, 830.) Furthermore, “ ‘[w]e will not ordinarily

consider issues raised for the first time in a reply brief.’ ” (Hernandez, at

p. 277.)

Alexander, although self-represented, must follow these rules. (Nwosu

v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)

Beginning with the scope of the appeal, defendants correctly point out

that Alexander has challenged the anti-SLAPP decision only as it pertains to

the conduct of Officer Fletes. He does not appear to challenge those aspects

of the trial court’s decision on the anti-SLAPP motion pertaining to the

statements or conduct of the other defendants (Chief Escalante and Sergeant

Hoppe) following Alexander’s request for investigation. Nor has Alexander

challenged the court’s alternative finding in defendants’ favor at the second

step of the analysis based on Alexander’s noncompliance with the

Government Claims Act prior to filing the complaint.

We limit our discussion to the issues raised by Alexander’s appellate

briefing, reviewing only the claims related to the conduct of Officer Fletes.

We do not address (and deem forfeited on appeal) those additional arguments

before the trial court, and not raised on appeal, with respect to all other

8

defendants. (L.O., supra, 96 Cal.App.5th at p. 620; Hernandez, supra, 37

Cal.App.5th at p. 277.) Furthermore, we deem forfeited any claim of error

related to the court’s finding that Alexander has not shown a likelihood of

prevailing on the merits due to his failure to comply with the Government

Claims Act, as Alexander does not address that issue in his appellate

briefing. (See Gov. Code, § 945.4.)

As to the arguments made by Alexander, substantial portions of the

opening brief on appeal do not comply with the rules of appellate briefing. It

is the appellant’s duty to support the contentions on appeal with argument

and citation to authority that demonstrates prejudicial error warranting

reversal. (Hernandez, supra, 37 Cal.App.5th at pp. 276–277; see Cal. Rules of

Court, rule 8.204(a)(1), (2).)

While we decline to deem Alexander’s contentions forfeited on appeal,

the deficiencies in his briefing have rendered our review more burdensome.

In particular, Alexander’s assertions in support of his prima facie showing

pertaining to the second step of the analysis consist largely of legal

conclusions or legal maxims and lack legal analysis or citation to factual

support in the record.

Turning to the merits of the appeal, we address the principal

contentions raised on appeal but disregard conclusory arguments that fail to

supply relevant support based on legal authority and legal analysis.

B. The Anti-SLAPP Statute

Section 425.16, commonly known as the anti-SLAPP statute, affords

defendants the opportunity to bring a special motion to strike a cause of

action arising from constitutionally protected speech or petitioning activity.

(Barry v. State Bar of California (2017) 2 Cal.5th 318, 320 (Barry); Laker,

supra, 32 Cal.App.5th at p. 759.) “If a claim arises out of an ‘act . . . in

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furtherance of [a] person’s right of petition or free speech . . . in connection

with a public issue,’ the claim must be stricken unless the nonmoving party

establishes ‘a probability that [it] will prevail on the claim.’ ([]§ 425.16, subd.

(b)(1).)” (Guracar v. Student Loan Solutions, LLC (2025) 111 Cal.App.5th

330, 341 (Guracar).)

The trial court evaluates a section 425.16 motion to strike in two steps.

First, the court examines the nature of the conduct that underlies the

plaintiff’s allegations to determine whether it is protected by section 425.16;

next, the court assesses the merits of the plaintiff’s claim. (Barry, supra, 2

Cal.5th at p. 321; Laker, supra, 32 Cal.App.5th at p. 760.)

In the first step, the trial court determines whether the moving

defendant has shown the speech or act underlying the plaintiff’s claim falls

within one or more of the four categories of protected acts set out in section

425.16, subdivision (e) (hereafter, section 425.16(e)). (Wilson v. Cable News

Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) The categories protect any

written or oral statement made (1) “before a legislative, executive, or judicial

proceeding, or any other official proceeding authorized by law,” (2) “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) “in a place open to the public or a public forum in connection with an

issue of public interest,” or (4) “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.”

(§ 425.16(e).)

If the movant prevails at the first step, the burden shifts to the

nonmoving party to demonstrate a probability of prevailing on the merits of

the challenged claim or claims. (§ 425.16, subd. (b)(1); Wilson, supra, 7

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Cal.5th at p. 884.) “To establish a probability of prevailing, a nonmoving

party must demonstrate that the claim is ‘legally sufficient and factually

substantiated’—that is, the claim has ‘ “minimal merit” ’ and the factual

showing supporting it, if accepted, ‘would be sufficient to sustain a favorable

judgment.’ ” (Guracar, supra, 111 Cal.App.5th at p. 341; see Soukup v. Law

Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).) A trial court at

this step “considers ‘the pleadings, and supporting and opposing affidavits

stating the facts upon which the liability or defense is based’ . . . ([] § 425.16,

subd. (b)(2)).” (Barry, supra, 2 Cal.5th at p. 321.) “The court ‘ “ ‘accept[s] as

true the evidence favorable to the plaintiff [citation] and evaluate[s] the

defendant’s evidence only to determine if it has defeated that submitted by

the plaintiff as a matter of law.’ ” ’ ” (Ibid.)

“Through this ‘summary-judgment-like procedure,’ the statute

authorizes the quick dismissal of meritless claims, thereby ensuring that

SLAPP suits are ended ‘ “ ‘early and without great cost to the SLAPP

target.’ ” ’ ” (Barry, supra, 2 Cal.5th at p. 324.)

C. Standard of Review

“We review de novo the grant or denial of any anti-SLAPP motion.

[Citation.] We exercise independent judgment in determining whether, based

on our own review of the record, the challenged claims arise from protected

activity.” (Park, supra, 2 Cal.5th at p. 1067.) We consider 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.’ ” ’ ” (Barry, supra, 2

Cal.5th at p. 321.)

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D. Analysis

Alexander contends that Officer Fletes’s actions fall outside the

definition of protected activity, and the trial court erred in finding that

defendants met their initial burden under the first step of the anti-SLAPP

statute. He contends the court further erred in deciding that he could not

demonstrate a probability of prevailing on the merits of his claims.

1. First Step: Protected Acts

In their anti-SLAPP motion, defendants argued that all the asserted

claims were based on oral or written statements of Officer Fletes made

during his criminal investigation at the post office and constituted protected

speech under section 425.16(e)(2), (e)(3), and (e)(4). On appeal, Alexander

does not dispute that his claims arise from the statements of Officer Fletes

but argues those statements are not protected acts.

The complaint identifies the offending conduct of Officer Fletes in

terms of “harassment” and threats to arrest Alexander while presenting an

intimidating or threatening appearance. The threats are variously described

(and set out in detail in the trial court’s order granting the anti-SLAPP

motion) as Officer Fletes “ ‘stopped’ [Alexander] without probable cause and

harassed and coerced [him]”; Alexander “was threatened, intimidated, and

coerced, by Officer Fletes to abandon this right to file a disability complaint”;

Alexander “felt that there would be use of physical force by Officer Fletes

against [him]”; and “[a]s a direct result of the threats, intimidation, and

coercion i.e., what Officer Fletes said, his physical stance, the battlefield

combat attire, what Officer Fletes was wearing, and the ‘personal-visible-

threat appearance[’] he [Officer Fletes] presented to” Alexander that caused

Alexander “to retreat for his physical, mental[] [and] emotional[] safety”;

Officer Fletes “ ‘stopped and confronted’ ” Alexander and “was rambling

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sentences that [Alexander] did not understand”; Officer Fletes told Alexander

he “was ‘trespassing’ ” and had “ ‘to leave’ ”; when Alexander objected, he “was

then threatened by Officer Fletes with physical force in the form of an arrest

if [Alexander] did not leave a public business” and “again stated that

[Alexander] was ‘trespassing.’ ”

Alexander contends these actions do not come within anti-SLAPP

protection because Officer Fletes’s “threats of arrest . . . were neither made in

connection with any governmental proceedings nor in a public forum

addressing matters of public interest” but instead “represented direct

interference with” the exercise of Alexander’s federally protected rights. He

argues the trial court focused narrowly on Officer Fletes’s “statements in

isolation” without considering the full context in which those statements

arose—namely, Officer Fletes’s interference with Alexander’s attempt to file

a disability complaint.

Exercising our independent review, we decide that Alexander’s

characterization of Officer Fletes’s conduct as interfering with his federally

protected rights does not remove that conduct from the categories of

protected speech.

It is well settled that governmental entities and officials are entitled to

invoke the protections of the motion to strike procedure when they are sued

based on statements made or activities engaged in while in their official

capacity. (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17–18.) As our high

court has explained, “the purpose of the anti-SLAPP statute plainly supports

an interpretation that protects statements by governmental entities or public

officials as well as statements by private individuals.” (Id. at p. 18.) This

purpose is promoted by the directive that the statute “ ‘be construed

broadly’ ” in furtherance of its stated goal that abuse of the judicial process

13

not be used to chill participation in matters of public significance. (Ibid.,

quoting § 425.16, subd. (a), italics omitted; see also Barry, supra, 2 Cal.5th at

p. 321.)

The allegations based on Officer Fletes’s engagement with Alexander at

the post office consist of oral statements made by the officer. Section

425.16(e)(2) protects “any written or oral statement or writing made in

connection with an issue under consideration or review by a . . . executive, . . .

or any other official proceeding authorized by law.” (Ibid.) Broadly construed

under section 425.16, Officer Fletes’s conduct comes within this category of

protected acts. His statements to Alexander were made in the course of his

duties responding to a call for police assistance due to an alleged trespass or

public disturbance after the employees were unable to assist Alexander.

Courts have held in similar contexts that statements by law

enforcement related to an official investigation are protected under the anti-

SLAPP statute. (Schaffer v. City and County of San Francisco (2008) 168

Cal.App.4th 992, 1003 (Schaffer).) These protections apply to

communications among law enforcement personnel (ibid.) and do not depend

on the filing of charges. (Hansen v. California Dept. of Corrections and

Rehabilitation (2008) 171 Cal.App.4th 1537, 1544 (Hansen) [holding that

statements made by California Department of Corrections and Rehabilitation

personnel during an internal investigation, which the plaintiff claimed

constituted false reports, were “made in connection with an issue under

consideration by an authorized official proceeding and thus constitute[d]

protected activity under subdivision (e)(2).”]; see Briggs v. Eden Council for

Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [observing that

communications preparatory to or in anticipation of bringing an official

proceeding are within the protection of section 425.16].)

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In Schaffer, the plaintiff sued the city and two police officers (an

investigator and a sergeant), asserting civil rights violations and tort claims

based on the officers’ role in orchestrating charges, which were later dropped,

against the plaintiff. (Schaffer, supra, 168 Cal.App.4th at p. 996.) The

plaintiff’s claims were based on a memorandum to the district attorney

prepared by the inspector, who implied the plaintiff should be prosecuted,

and two affidavits signed by the sergeant, asserting the plaintiff committed

crimes and supporting the district attorney’s filing of a complaint. (Id. at

pp. 996, 999.) The trial court granted the defendants’ anti-SLAPP motion,

and the Schaffer court affirmed. (Id. at pp. 1005–1006.) The appellate court

held, with respect to the first step of the analysis, that the officers’

memorandum and sworn affidavits were written statements made in

connection with an issue under consideration by an executive (the district

attorney) or by an official proceeding authorized by law, and on that basis

were entitled to protection under the anti-SLAPP statute. (Schaffer, at

pp. 999, 1003–1004.)

The Schaffer court rejected the plaintiff’s contention that construing

section 425.16(e)(2) to include the police officers’ statements would discourage

citizens from filing legitimate lawsuits for police misconduct. It explained,

“the anti-SLAPP statute does not immunize police officers from misconduct;

it merely attempts to insulate them from having to litigate plainly

unmeritorious lawsuits, the possibility of which would otherwise chill their

ability to make statements in connection with official proceedings, as their

duties to the public require. If, in fact, there is merit to the plaintiff’s cause

of action, the plaintiff can avoid dismissal simply by establishing a

probability of prevailing.” (Schaffer, supra, 168 Cal.App.4th at p. 1004.)

15

Alexander asserts the statements of Officer Fletes are not protected by

the anti-SLAPP statute but offers scant supporting legal authority. He does

not, for example, attempt to distinguish Officer Fletes’s statements, made in

response to a call for assistance and investigation into alleged trespass, from

the protected statements of law enforcement personnel made in connection

with the investigations in Schaffer or Hansen.

Alexander argues, citing Department of Fair Employment & Housing v.

1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, that

courts caution against applying section 425.16 to discrimination complaints,

as “doing so would ‘significantly burden plaintiffs in contravention of the

statute’s purpose to curb abusive SLAPP suits.’ ” However, the cited case

does not support the stated proposition nor contain the language quoted in

Alexander’s brief. Instead, in affirming the denial of the defendant’s anti-

SLAPP motion, the court in Alta Loma observed that a complaint based not

on the protected act of filing legal papers to initiate the removal of rental

units from the market but on the landlord’s discriminatory failure to

accommodate a tenant’s disability is not a SLAPP. (Id. at p. 1287.) The court

reasoned that “if this kind of suit could be considered a SLAPP, then

landlords and owners . . . could discriminate during the removal process with

impunity knowing any subsequent suit for disability discrimination would be

subject to a motion to strike.” (Id. at p. 1288.) Thus, Alta Loma highlights

the distinction between protected acts that precede or trigger the cause of

action and the conduct giving rise to the cause of action itself. (See Navellier

v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)

Alexander maintains that the causes of action in the complaint do not

arise from protected speech in connection with an official proceeding but from

what he asserts is Officer Fletes’s unprotected conduct of threatening arrest

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and impeding Alexander’s right to file an ADA complaint. However,

Alexander’s characterization of Officer Fletes’s conduct is not determinative.

“In deciding whether the initial ‘arising from’ requirement is met, a court

considers ‘the pleadings, and supporting and opposing affidavits stating the

facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)”

(Navellier, supra, 29 Cal.4th at p. 89.)

Each of Alexander’s discrimination and intimidation/interference

related claims is based on either Officer Fletes’s statements made in

connection with his response to the post office’s report of Alexander’s alleged,

disruptive conduct and/or his investigation of a possible trespass after

Alexander did not leave the premises.6 The affidavits of Alexander and

Officer Fletes are consistent on this point. Both describe Officer Fletes

6 As summarized ante, the complaint causes of action variously identify,

among other allegations, Officer Fletes’s alleged “use of threats, intimidation

and/or coercion,” that he “threatened [Alexander] with arrest causing him to

reasonably believe[] that he was about to be touched in a harmful or offensive

manner,” that he “committed acts of disability discrimination . . . by

threatening with a form of arrest under coercive conditions,” that Officer

Fletes “conduct[ed] a flawed and inadequate investigation into [Alexander]’s

claims of a hate crime by prematurely and incorrectly concluding any inquiry

as required by law” as the basis for the claims under the Bane Act, Ralph Act,

and Unruh Act.

To the extent that Alexander’s claims for failure to perform a

mandatory duty under Government Code section 815.6 and due process are

based more particularly on the actions of defendants after Alexander sought

an investigation into his treatment by Officer Fletes, the trial court found the

conduct underlying those claims were also protected speech activity (i.e., e-

mails and phone conversation generated in connection with the internal

investigation into Alexander’s demands) and that it constituted protected

activity under section 425.16(e). We do not revisit that ruling in the absence

of an assertion of error by Alexander on appeal. (Hernandez, supra, 37

CalApp.5th at p. 277.) We similarly do not revisit the court’s ruling on the

claims Alexander asserted against the other defendants. (See ante, pt. II.A.)

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warning Alexander that he could be cited for trespassing (arrested, according

to Alexander) for refusing to leave after post office employees requested he

depart because they could not assist him.

We reject Alexander’s assertion that the trial court’s analysis at the

first step was necessarily deficient for failing to consider the “[t]otality of the

circumstances.” That articulation is not the legally relevant test. Rather, the

applicable inquiry is as to “each act or set of acts supplying a basis for relief,

of which there may be several in a single pleaded cause of action — to

determine whether the acts are protected.” (Bonni v. St. Joseph Health

System (2021) 11 Cal.5th 995, 1010 (Bonni).) “If the court determines that

relief is sought based on allegations arising from activity protected by the

statute, the second step is reached.” (Baral v. Schnitt (2016) 1 Cal.5th 376,

396 (Baral).)

Here, the act or set of acts giving rise to Alexander’s claims and

pertinent to his arguments on appeal are the statements and conduct of

Officer Fletes at the post office. While Alexandar argues that Officer Fletes’s

oral threats of arrest and statements at the post office do not qualify as

protected activity because the officer’s conduct unlawfully interfered with

Alexander’s right to file an ADA complaint, Alexander does not offer any

authority that would preclude defendants from invoking anti-SLAPP

protection here. For example, Alexander does not attempt to show (nor does

the evidence support the argument) that the assertedly protected speech was

illegal as a matter of law. (See, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299,

320 (Flatley).)

Under these circumstances, the allegation that Officer Fletes’s oral

threats of arrest and statements to Alexander constituted unlawful

interference with Alexander’s right to file an ADA complaint does not remove

18

those statements from the ambit of section 425.16(e)(2). Rather, whether

Alexander has shown that Fletes violated his rights is properly considered at

the second step of the anti-SLAPP analysis. (Schaffer, supra, 168

Cal.App.4th at p. 1004; Flatley, supra, 39 Cal.4th at p. 320.)

We conclude, based on our review of the pleadings and supporting and

opposing affidavits, that the claims at issue each arise from Officer Fletes’s

protected speech in the context of his official law enforcement actions at the

post office. (Navellier, supra, 29 Cal.4th at p. 89.)7

2. Second Step: Prima Facie Case

At the second step of the analysis, “the burden shifts to the plaintiff to

demonstrate that each challenged claim based on protected activity is legally

sufficient and factually substantiated. The court, without resolving

evidentiary conflicts, must determine whether the plaintiff’s showing, if

accepted by the trier of fact, would be sufficient to sustain a favorable

judgment.” (Baral, supra, 1 Cal.5th at p. 396.) “For purposes of this inquiry,

‘the trial court considers the pleadings and evidentiary submissions of both

the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does

7 Having decided that defendants met their initial burden to establish

that the claims at issue arise from Officer Fletes’s oral statements made in

connection with an issue under consideration by an executive body or other

official proceeding within the meaning of section 425.16(e)(2), we need not

address Alexander’s additional argument that the “public interest” element of

section 425.16, subdivision (e)(3) and (e)(4) has not been met. Defendants

asserted the applicability of these latter provisions in the motion to strike

pertaining to Alexander’s allegations based on the subsequent conduct of

defendants following Alexander’s request for investigation and public records

request. Since Alexander has not challenged the trial court’s ruling with

respect to anything but the conduct of Officer Fletes at the post office as the

basis for the statute’s application, we do not reach the additional, asserted

grounds for anti-SLAPP protection.

19

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.’ ” (Soukup, supra, 39 Cal.4th at p. 291.)

a. Bane Act (Civ. Code, § 52.1)

Beginning with the Bane Act claims asserted in causes of action Nos. 1,

2, 3, 7, 8, and 10, Alexander argues that he has met the “minimal merit”

requirement by demonstrating interference with his constitutional or

statutory rights through threats, intimidation, or coercion.

The Bane Act authorizes a private right of action for damages and

injunctive relief against a person, “whether or not acting under color of law,”

who “interferes by threat, intimidation, or coercion, or attempts to interfere

by threat, intimidation, or coercion, with the exercise or enjoyment . . . of

rights secured by the Constitution or laws of the United States, or of the

rights secured by the Constitution or laws of this state.” (Civ. Code, § 52.1,

subd. (b); Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841.) The

California Supreme Court has explained that while “Civil Code section 52.1

was adopted ‘to stem a tide of hate crimes’ ” (Venegas, at p. 843), the statute

is not “limited to such crimes” (ibid.) and does not require a plaintiff to show

the alleged threat or intimidation had a discriminatory purpose, or that the

defendant “committed an actual hate crime.” (Ibid.) Even so, “the statute

was intended to address only egregious interferences with constitutional

rights, not just any tort. The act of interference with a constitutional right

must itself be deliberate or spiteful.” (Shoyoye v. County of Los Angeles

(2012) 203 Cal.App.4th 947, 959 (Shoyoye).) Speech alone is insufficient to

establish a Bane Act violation unless “the speech itself threatens violence.”

20

(Civ. Code, § 52.1, subd. (k)8; Julian v. Mission Community Hospital (2017)

11 Cal.App.5th 360, 395 (Julian).)

Crediting, as we must, Alexander’s evidence submitted in opposition to

the anti-SLAPP motion (Soukup, supra, 39 Cal.4th at p. 291), we accept as

true the information provided in his amended declaration, including that

Officer Fletes threatened to arrest him if he did not leave the post office, the

officer was in uniform wearing “battlefield combat attire” with a visible

sidearm that caused Alexander to feel physically intimidated and fearful, the

officer ignored Alexander’s request to make a police report of the hate crime

purportedly taking place, and Alexander left the post office because he feared

for his physical and psychological safety in light of Officer Fletes’s threat to

arrest him.

These facts are legally insufficient to sustain a favorable judgment

under the Bane Act. The statute is unambiguous in requiring that threat,

intimidation, or coercion based on speech specifically includes the threat of

violence against a specific person or group. (Civ. Code, § 52.1, subd. (k).)

Because a violation of the statute based on speech requires “a showing that

the speech itself threatens violence against a specific person or group of

persons” (ibid.), a police officer’s verbal threat to arrest an individual,

without threat of violence against that person or their property, is insufficient

8 Civil Code section 52.1, subdivision (k) states, “Speech alone is not

sufficient to support an action brought pursuant to subdivision (b) or (c),

except upon a showing that the speech itself threatens violence against a

specific person or group of persons; and the person or group of persons

against whom the threat is directed reasonably fears that, because of the

speech, violence will be committed against them or their property and that

the person threatening violence had the apparent ability to carry out the

threat.”

21

to sustain a claim under the Bane Act. (Allen v. City of Sacramento (2015)

234 Cal.App.4th 41, 66 (Allen).)

This point is well settled in contexts involving law enforcement action,

where “[c]oercion inherent in the alleged constitutional violation, i.e., an

overdetention in jail, is insufficient to meet the statutory requirement of

‘ “threat, intimidation, or coercion.” ’ ” (Doe v. State of California (2017) 8

Cal.App.5th 832, 842, disapproved of on another ground by Leon v. County of

Riverside (2023) 14 Cal.5th 910, 930.) Thus, in Doe, the appellate court

upheld application of the anti-SLAPP statute to strike a Bane Act claim

based on state agents’ alleged use of threats of arrest and criminal

prosecution to compel the plaintiff to register as a sex offender despite his

conviction having been overturned. (Doe, at p. 842.) The court explained

that the plaintiff did not show a probability of prevailing on the merits for

purposes of the step two anti-SLAPP analysis, because “assuming agents of

the State [Department of Justice] threatened to arrest/prosecute [the

plaintiff] if he failed to register as a sex offender, the [plaintiffs] did not

allege those agents engaged in independently threatening (or intimidating,

coercive) conduct apart from the threats to arrest/prosecute him.” (Doe, at

p. 843.)

Similarly, in Shoyoye, the appellate court interpreted the numerous

references to violence or threats of violence in Civil Code section 52.1 as

“serv[ing] to establish the unmistakable tenor of the conduct” the statute “is

meant to address.” (Shoyoye, supra, 203 Cal.App.4th at p. 959.) The court

held that the plaintiff’s wrongful detention or overdetention in county jail due

to negligence or error on the part of the defendant did not violate the Bane

Act, absent a showing of purposeful intent to threaten or intimidate. (Ibid.)

While the prolonged detention in jail “was traumatic and frightening” to the

22

plaintiff (id. at p. 961), “there was no evidence of any coercion independent of

that inherent in a wrongful detention itself.” (Id. at pp. 961–962; accord,

Allen, supra, 234 Cal.App.4th at p. 69.)

Julian involved a similar determination by the Court of Appeal, where

the plaintiff, a school employee, asserted violations of the Bane Act based on

her involuntary detention by school police officers and admission to a hospital

for mental health evaluation. (Julian, supra, 11 Cal.App.5th at p. 368.) The

court affirmed the trial court’s grant of summary judgment on the alleged

Bane Act violation. It explained that “other than the actions necessary to

detain” the plaintiff, her allegations of police scare tactics and “ ‘ “forcible”

and “coercive” interference with [her] constitutional rights’ ” were

“ ‘inadequate to state a cause of action for a violation of [Civil Code] section

52.1.’ ” (Id. at p. 395.)

Alexander contends, citing Venegas, that his Bane Act claim

“demonstrates a clear probability of success based on established precedent.”

However, the California Supreme Court’s decision in Venegas addressed a

different issue under the statute (pertaining to the hate crime origins of the

Bane Act) and does not assist Alexander’s argument that the evidence of

Officer Fletes’s allegedly intimidating appearance and oral threats to arrest

him for trespass demonstrate the requisite minimal merit to sustain a

favorable judgment. (Baral, supra, 1 Cal.5th at p. 396.) We conclude the

trial court did not err in striking Alexander’s causes of action under the Bane

Act.

b. Ralph Act (Civ. Code, § 51.7)

Alexander contends he has satisfied his burden to show a probability of

prevailing on his Ralph Act claim, asserted in causes of action Nos. 4 and 10.

He asserts the Ralph Act claim is supported by “[p]rotection against violence

23

or intimidation by threat of violence based on protected characteristics,

includ[ing] disability” and cites Officer Fletes’s threats of arrest while

Alexander “exercised disability-related rights to file a [United States Code]

[s]ection 504 complaint” as his supporting evidence.

The Ralph Act is a civil rights statute which states, “All persons within

the jurisdiction of this state have the right to be free from any violence, or

intimidation by threat of violence, committed against their persons or

property because of political affiliation, or on account of any characteristic

listed or defined in subdivision (b) or (e) of [s]ection 51,[9] or position in a labor

dispute, or because another person perceives them to have one or more of

those characteristics. The identification in this subdivision of particular

bases of discrimination is illustrative rather than restrictive.” (Civ. Code,

§ 51.7, subd. (b)(1).)

As with the Bane Act, a violation of the Ralph Act based on “[s]peech

alone” requires a showing that the offending speech “itself threatens violence

against a specific person or group of persons.” (Civ. Code, § 51.7, subd.

(e)(1)(A).) The plaintiff must show “all of” the enumerated elements (id.,

subd. (e)(1)) including not only that the speech threatens violence, but that

the person threatening violence “is acting in reckless disregard for the

threatening nature of their speech,” (id., subd. (e)(1)(C)) “has the apparent

ability to carry out the threat,” (id., subd. (e)(1)(D)) and that the person or

9 Civil Code section 51, subdivisions (b) and (e) list and define certain

protected categories of persons for purposes of receiving equal

accommodations, privileges, or services in business establishments. These

categories include a person’s “sex, race, color, religion, ancestry, national

origin, disability, medical condition, genetic information, marital status,

sexual orientation, citizenship, primary language, or immigration status.”

(Id., subd. (b).)

24

group against whom the threat is directed “reasonably fears that, because of

the speech, violence will be committed against them or their property” (id.,

subd. (e)(1)(B)).

Based on our independent review of the record and arguments, and

crediting Alexander’s allegations and evidence in opposition to the anti-

SLAPP motion (Soukup, supra, 39 Cal.4th at p. 291), Alexander has not

shown the minimal merit to his Ralph Act claim required to meet his burden

at the second step of the anti-SLAPP analysis.

Alexander has submitted evidence of disability in his declaration to

support a showing that he meets one or more categories of a protected person

under the Ralph Act. (Civ. Code, §§ 51.7, subd. (b)(1), 51, subd. (b).)

However, he has not met his burden to establish a Ralph Act violation based

on his interaction with Officer Fletes at the post office, where there is no

evidence that Officer Fletes’s intimidating appearance or alleged threat to

arrest Alexander for trespassing included the threat of violence and

additional statutory elements. (Civ. Code, § 51.7, subd. (e)(1).) “There can be

no ‘threat of violence’ without some expression of intent to injure or damage

plaintiffs or their property, and there simply was none.” (Ramirez v. Wong

(2010) 188 Cal.App.4th 1480, 1486 [affirming order of dismissal where

plaintiffs alleged Ralph Act violation, among other civil rights statutes, based

on apartment manager who entered female tenants’ unoccupied apartment,

opened their dresser drawer, and sniffed their underwear].)

Nor has Alexander offered any legal authority or argument to support

his claim that Officer Fletes’s presence and statements directing Alexander to

leave the premises or be cited for trespass, establishes even a minimal

showing of probability of prevailing on the merits. We conclude the trial

court did not err in granting the anti-SLAPP motion on the Ralph Act claims.

25

c. Unruh Act (Civ. Code, § 51)

Alexander contends he has shown a probability of prevailing on his

Unruh Act claims, alleged in causes of action Nos. 5, 6, and 10, based on

Officer Fletes’s alleged interference with Alexander’s filing of his federal

disability complaint. Alexander argues that the California Supreme Court’s

decision in Brennon B. v. Superior Court (2022) 13 Cal.5th 662 (Brennon B.)

confirms that law enforcement agencies can be liable when acting as business

establishments, and that the police were acting outside their legitimate

authority in this situation.

The Unruh Act, codified at Civil Code section 51, prohibits business

establishments from discriminating against persons based on their “sex, race,

color, religion, ancestry, national origin, disability, medical condition, genetic

information, marital status, sexual orientation, citizenship, primary

language, or immigration status.” (Civ. Code, § 51, subd. (b).) It “was

‘enacted to prohibit discriminatory conduct by individual proprietors and

private entities offering goods and services to the general public.’ ” (Thurston

v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 305.)

The Unruh Act “does not cover ‘discriminations other than those made

by a “business establishment” in the course of furnishing goods, services or

facilities to its clients, patrons or customers’ ” and “is

‘confined to discriminations against recipients of the “business

establishment’s . . . goods, services or facilities.” ’ ” (Smith v. BP Lubricants

USA Inc. (2021) 64 Cal.App.5th 138, 149.) It “creates a cause of action for

any person who is denied the right to ‘full and equal accommodations,

advantages, facilities, privileges, or services in all business establishments of

every kind whatsoever’ based on” that person’s membership in a protected

26

class. (Mackey v. Board of Trustees of California State University (2019) 31

Cal.App.5th 640, 660; Civ. Code, § 52.)

Contrary to Alexander’s assertion, a police department is not a public

establishment for purposes of the Unruh Act. (See Burnett v. San Francisco

Police Department (1995) 36 Cal. App. 4th 1177, 1191–1192 [holding that the

Unruh Act bars discrimination by business establishments but does not

preclude nonbusinesses (such as the city’s police code) from enacting policies

that distinguish based on a protected characteristic such as age].)

Brennon B. does not establish otherwise. There, our high court

emphasized that the purpose and legislative history of the Unruh Act “make

clear that the focus of the Act is the conduct of private business

establishments.” (Brennon B., supra, 13 Cal.5th at p. 675.) It rejected the

application of the Unruh Act to a public school district, noting that “[w]hile

the phrase ‘all business establishments of every kind whatsoever’ must be

interpreted as broadly as reasonably possible, its scope remains limited to

entities acting as private business establishments.” (Brennon B., at p. 678.)

The court contrasted the Unruh Act with statutes that expressly include

state and local government among the covered entities (such as the California

Fair Employment and Housing Act) and concluded that the Unruh Act is not

directed at government entities but “is focused on the actions of private

actors.” (Brennon B., at p. 678.) The court further rejected the argument

that a nonbusiness establishment like a public school district could still be

sued for discrimination under subdivision (f) of Civil Code section 51 based on

an alleged ADA violation.10 (Brennon B., at p. 685.)

10 Civil Code section 51, subdivision (f) states, “A violation of the right

of any individual under the federal Americans with Disabilities Act of 1990

(Public Law 101-336) shall also constitute a violation of this section.”

27

Alexander offers no argument or authority that would support a

different interpretation of the Unruh Act as applied to police officers acting in

the scope of their public duties. He asserts that Officer Fletes was not acting

in the scope of his police duties, since “interfering with or preventing the

filing of a federal civil rights complaint is not a legitimate police function.”

(Capitalization omitted.) However, even taking as true the facts asserted in

opposition to the anti-SLAPP motion, it is undisputed that Officer Fletes’s

statements to Alexander (directing him to leave the premises based on the

request of the post office staff, under threat of citation for trespassing) were

made in the scope of his duties during his response to a dispatch call due to

Alexander ’s continued presence at the post office. Cases “indicate that to be

a ‘business establishment’ under the [Unruh] Act an entity must effectively

operate as a business or a commercial enterprise or ‘engage[] in behavior

involving sufficient “businesslike attributes.” ’ ” (Brennon B., supra, 13

Cal.5th at p. 681.) There is no evidence to support Alexander’s conclusory

assertion that Officer Fletes or the other defendants acted in a way that

would warrant treating the police department as a business establishment

for purposes of the Unruh Act.

Because Alexander has not shown that the Unruh Act applies here, we

conclude he has not met his burden to establish a likelihood of prevailing on

the merits of his Unruh Act claims. The trial court did not err in striking the

fifth, sixth, and tenth causes of action on this ground.

d. Mandatory Duty (Gov. Code, § 815.6)

Alexander cites Penal Code section 368, Government Code section

815.6, and his complaint allegations pertaining to the Santa Cruz Police

Department policy manual in support of his mandatory duty claim alleged in

28

cause of action No. 9. However, he offers no legal argument or explanation in

support of his position.

The absence of any cogent argument supported by legal analysis, case

authority, and citation to the record precludes meaningful consideration of

Alexander’s appeal as to this claim, which we deem forfeited. (L.O., supra, 96

Cal.App.5th at p. 620; Hernandez, supra, 37 Cal.App.5th at pp. 276–277.)

Moreover, even considering the allegations of the ninth cause of action and

accepting as true all evidence favoring Alexander’s claims (Barry, supra, 2

Cal.5th at p. 321), the facts are insufficient to establish a likelihood of success

on the merits. Alexander alleges that defendants violated their mandatory

duties when they failed to comply with the provisions of Penal Code section

368.6, which he asserts create “mandatory ministerial duties and not

discretionary.” He further alleges that the policy manual mandates

investigation and reporting of alleged “ ‘[s]enior and [d]isability

[v]ictimization’ ” even when the allegations appear unfounded. However, he

does not demonstrate that Penal Code section 368.6 imposes any mandatory

duties, or that the asserted facts support a claimed violation of that section.

Government Code section 815.6 states, “Where a public entity is under

a mandatory duty imposed by an enactment that is designed to protect

against the risk of a particular kind of injury, the public entity is liable for an

injury of that kind proximately caused by its failure to discharge the duty

unless the public entity establishes that it exercised reasonable diligence to

discharge the duty.” A government entity may be liable under the statute

“when (1) a mandatory duty is imposed by an enactment, (2) the duty was

designed to protect against the kind of injury allegedly suffered, and

(3) breach of the duty proximately caused injury.” (State Dept. of State

Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348.)

29

Our Supreme Court has explained that the application of Government

Code section 815.6 “requires that the enactment at issue be obligatory, rather

than merely discretionary or permissive, in its directions to the public entity;

it must require, rather than merely authorize or permit, that a particular

action be taken or not taken.” (Haggis v. City of Los Angeles (2000) 22

Cal.4th 490, 498.) Application of the statute also “requires the mandatory

duty be ‘designed’ to protect against the particular kind of injury the plaintiff

suffered. The plaintiff must show the injury is ‘ “one of the consequences

which the [enacting body] sought to prevent through imposing the alleged

mandatory duty.” ’ ” (Id. at p. 499.) Whether an enactment creates a

mandatory duty is a question of law subject to this court’s independent

review. (Ibid.)

Contrary to Alexander’s allegations, Penal Code section 368.6 does not

impose any mandatory duties. It provides in relevant part: “Each local law

enforcement agency may adopt a policy regarding senior and disability

victimization. A municipal police department . . . that adopts or revises a

policy regarding elder and dependent adult abuse or senior and disability

victimization on or after April 13, 2021, shall include, but not be limited to,

. . . [¶] . . . (2) A statement of the agency’s commitment to providing equal

protection and demonstrating respect for all persons regardless of age or

disabilities, and to conscientiously enforcing all criminal laws protecting

elders, and adults and children with disabilities, regardless of whether these

crimes also carry civil penalties.” (Id., subd. (c)(2).)

By the plain terms of the statute, a police agency’s adoption of a policy

regarding disability victimization is discretionary or permissive, not

obligatory. (See Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432,

443 [“It is a well-settled principle of statutory construction that the word

30

‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily

construed as mandatory, particularly when both terms are used in the same

statute.”].) Alexander has not offered any legal argument in support of an

interpretation of Penal Code section 368.6 that would render the adoption of

a disability victimization policy obligatory rather than discretionary, nor has

he shown how the purported mandatory duty under that section protects

against the kind of injury he allegedly suffered. Furthermore, the

paragraphs in Alexander’s complaint allegedly quoting from the Santa Cruz

Police Department’s policy manual do not, without more (i.e., evidentiary

support), establish a mandatory policy to give rise to a mandatory duty claim.

Consequently, Alexander has not established the existence of a

mandatory duty under the standard articulated in Haggis. We therefore

conclude that Alexander has not demonstrated his mandatory duty claim is

legally sufficient or factually substantiated, and the trial court did not err in

striking the claim.

e. Constitutional Claims

We are unable to discern, in Alexander’s opening brief on appeal, any

arguments directly challenging the trial court’s determination that Alexander

was unable to meet his burden at the second step of the anti-SLAPP analysis

with respect to his constitutional claims. Alexander states only that he “had

clear First Amendment right to petition government (file complaint against

USPS)” and an “explicit statutory right to file [United States Code] [s]ection

504 disability complaint” and asserts that the officer’s “conduct directly

prevented exercise of these federal rights.” However, his complaint alleges,

31

in the eleventh and twelfth causes of action, violations of the California

Constitution, not the federal constitution.11

The free speech provision of the California Constitution states in

relevant part, “Every person may freely speak, write and publish his or her

sentiments on all subjects, being responsible for the abuse of this right. A

law may not restrain or abridge liberty of speech or press.” (Cal. Const., art.

I, § 2, subd. (a).) The due process provision states in part, “A person may not

be deprived of life, liberty, or property without due process of law or denied

equal protection of the laws.” (Id., art. I, § 7, subd. (a).)

Alexander’s conclusory references, in opposition to the anti-SLAPP

motion and in his appellate briefing, to the First Amendment of the United

States Constitution and to an action under federal law pursuant to Title 42

United States Code section 1983, do not satisfy his burden to establish a

prima facie right to relief on his state constitutional claims. Nor do the facts

in opposition to the anti-SLAPP motion support Alexander’s claims to

injunctive and declaratory relief for the alleged constitutional violations. As

we explained in relation to Alexander’s mandatory duty claim, we need not

consider and may deem forfeited those points on appeal that are not

supported by some cogent legal analysis. (L.O., supra, 96 Cal.App.5th at

p. 620; Hernandez, supra, 37 Cal.App.5th at pp. 276–277.)

11 In the eleventh cause of action, Alexander alleges that defendants’

actions violated his rights of speech under article 1, section 2, of the

California Constitution. In the twelfth cause of action, he alleges defendants

deprived him of liberty and due process of law, in violation of article I, section

7, of the California Constitution, by “failing to give [him] sufficient notice of

the censorship of its publications and correspondence and an opportunity to

be heard with respect to that censorship.”

32

Because Alexander does not offer support on the merits for proving a

violation of his state constitutional rights as alleged in the eleventh and

twelfth causes of action, he cannot show a probability of prevailing on his free

speech and due process causes of action. The trial court did not err in

striking the eleventh and twelfth causes of action.

f. Additional Arguments

Alexander makes a variety of additional arguments, set out under

headings III through X and XIII of his opening brief. These arguments,

which consist of topic headings followed generally by a case citation and list

of asserted errors or policy statements, lack paragraph structure and contain

no accompanying legal analysis or explanatory context. Alexander asserts

that the trial court erred in striking the entire complaint rather than

considering each cause of action separately, failed to properly consider his

status as a disabled individual and the protections afforded him under

relevant disability rights laws, erred in its interpretation and application of

the “public interest” element of the anti-SLAPP statute, erred in applying

qualified immunity principles, and infringed on his constitutional rights by

applying anti-SLAPP too broadly. He also asserts that the court’s ruling

creates a chilling effect on the exercise of disability rights, contravenes public

policy favoring disability rights, and undermines the integrity of the judicial

process. Alexander raises new arguments in his reply brief, citing federal law

and the supremacy clause of the United States Constitution as grounds for

“void[ing]” what he characterizes as state interference with federal disability

complaint procedures.

These arguments generally convey Alexander’s belief that the trial

court failed to consider the adverse effects of its ruling and incorrectly

applied the law. However, the referenced sections of the opening brief do not

33

comply with the content rules for appellate briefing (Cal. Rules of Court, rule

8.204(a)) and fail to follow the fundamental rule of appellate procedure to

support each claim of error with meaningful legal analysis. Furthermore,

fairness requires that reviewing courts “ ‘will not ordinarily consider issues

raised for the first time in a reply brief.’ ” (Hernandez, supra, 37 Cal.App.5th

at p. 277.) Accordingly, Alexander has forfeited these arguments on appeal.

(Ibid.; Ewald, supra, 13 Cal.App.5th at p. 948.)

Moreover, none of the arguments afford a basis for reversal of the trial

court’s ruling granting the anti-SLAPP motion. Alexander contends the trial

court erred by striking the entire complaint and failed to perform a claim-by-

claim analysis. Our review of the record confirms the opposite. Consistent

with the process set forth by the California Supreme Court, the trial court

considered the acts alleged by Alexander to comprise the basis of the claims

against defendants, concluded each of the claims arose from protected

underlying acts, and correctly determined that the resulting claims lacked

the requisite degree of merit to survive the motion to strike. (See Bonni,

supra, 11 Cal.5th at pp. 1009–1010.) Alexander’s conclusory assertion that

Officer Fletes’s conduct was illegal and therefore not protected is not

supported by the complaint allegations or evidence in opposition to the anti-

SLAPP motion and, as explained ante (pt. II.C.1.), does not come under the

narrow illegality exception described in Flatley.

Alexander also contends the trial court failed to properly consider his

status as a disabled individual but fails to support this argument with any

relevant case authority or relevant analytical framework. Conclusory

statements that the trial court’s approach “[u]ndermined established

disability rights protections” and “[d]id not adequately address the remedial

purpose of disability laws” are insufficient to establish error on appeal.

34

We have considered Alexander’s remaining arguments and decide they

reflect Alexander’s disagreement with the trial court’s evaluation of the

allegations and evidence but do not offer any basis for reversal. He asserts

that the court failed to discern between routine law enforcement and conduct

that interferes with federally protected rights. However, neither the

allegations nor evidence proffered in opposition to the anti-SLAPP motion

support the claim that Officer Fletes prevented Alexander from filing an ADA

complaint, which he was told by the post office employees had to be

completed online.

Furthermore, Alexander’s concern that overbroad application of the

anti-SLAPP statute will create a chilling effect to dissuade disabled

individuals from bringing legitimate civil rights complaints is misplaced. The

second step of the anti-SLAPP analysis affords those who bring meritorious

suits protection from dismissal by allowing plaintiffs to demonstrate the

challenged claim has the requisite “ ‘ “minimal merit” ’ ” (Laker, supra, 32

Cal.App.5th at p. 760) to proceed. That Alexander has been unable to meet

this standard with respect to his claims does not indicate a general chilling of

civil rights lawsuits challenging police action.

Nor does Alexander offer support for his contention that extra

scrutiny—beyond that built into the two-step analytical framework for

evaluating a special motion to strike—is needed to balance the purposes of

the anti-SLAPP statute and civil rights laws. Martin v. Inland Empire

Utilities Agency (2011) 198 Cal.App.4th 611, which Alexander cites in support

of his argument, does not contain the statement about heightened “ ‘judicial

scrutiny’ ” quoted in Alexander’s brief. Rather, it illustrates the application

of the statutory framework to distinguish between claims arising from the

exercise of protected acts and those arising from unprotected, discriminatory

35

conduct. (See id. at pp. 624–625 [affirming the denial of defendants’ anti-

SLAPP motion as to those causes of action arising not from protected speech

but from acts of alleged racial discrimination].)

Having independently considered the arguments, complaint

allegations, and evidence in support of Alexander’s opposition to the anti-

SLAPP motion, we conclude he has not shown error in the trial court’s

evaluation of the acts giving rise to his claims for relief, nor has he shown a

possibility of prevailing on the merits of any of his 12 causes of action.

III. DISPOSITION

The trial court’s order granting the special motion to strike under Code

of Civil Procedure section 425.16 is affirmed. Respondents are entitled to

recover reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

36

______________________________________

Danner, Acting P. J.

I CONCUR:

____________________________________

Wilson, J.

H051774

Alexander v. City of Santa Cruz

Bromberg, J., Dissenting

The majority holds that the anti-SLAPP statute (Code Civ. Proc.,

§ 425.16) protects statements made by a police officer in the course of

responding to a disturbance. In the majority’s view, because the officer’s

statements were made while performing official duties, they constitute

statements “made in a connection with an issue under consideration” in an

official proceeding and therefore protected activity under the anti-SLAPP

statute. (Code Civ. Proc., § 425.16, subd. (b)(1).) Although this conclusion

takes only a step beyond existing case law, in my view it is a step too far. I

therefore respectfully dissent.

The Legislature did not enact the anti-SLAPP statute to protect the

ability of law enforcement officers to perform their official duties. That

ability is protected already by official immunity statutes, which, among other

things, grant law enforcement officers absolute or qualified immunity against

liability while enforcing the law and initiating prosecution. (See Gov. Code,

§ 820.4 [qualified immunity for enforcing the law]; id., § 821.6 [absolute

immunity for instituting judicial proceedings]; see also id. § 820.2 [absolute

immunity for discretionary actions].) The anti-SLAPP statute serves a

different purpose: “to encourage continued participation in matters of public

significance” by a special motion to strike in “lawsuits brought primarily to

chill the valid exercise of the constitutional rights of freedom of speech and

petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a);

see id., § 425.16, subd. (b)(1).) When police officers respond to calls for

assistance, they presumably are trying to maintain the peace and perform

routine law enforcement duties, not seeking to participate in matters of

public significance or to exercise their rights to petition or to free speech. As

a consequence, the stated purpose of the anti-SLAPP statute is not served by

treating statements made by police officers in performing their duties as

protected activity under the statute.

It is true that the anti-SLAPP statute has been both drafted and

construed broadly. The statute protects actions “in furtherance of [a] person’s

right of petition or free speech . . . in connection with a public issue.” (Code

Civ. Proc., § 425.16, subd. (b)(1).) And such protected activity—actions “in

furtherance of [a] person’s right of petition or free speech . . . in connection

with a public issue”—is defined broadly to include, among other things, “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.” (Id., § 425.16, subd. (e)(2).) In

addition, the statute expressly states that it is to “be construed broadly.” (Id.,

§ 425.16, subd. (a).)

Accordingly, as the majority points out, the Supreme Court has applied

the anti-SLAPP statute to statements made in anticipation of litigation and

other official proceedings (Briggs v. Eden Council for Hope & Opportunity

(1999) 19 Cal.4th 1106, 1115), and Court of Appeal decisions have applied the

statute to statements made by law enforcement officers in considering

whether to file criminal charges (Schaffer v. City and County of San

Francisco (2008) 168 Cal.App.4th 992, 998-999), conducting an internal

investigation into possible criminal misconduct (Hansen v. California Dept. of

Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544), and

making public statements concerning a criminal investigation (Bradbury v.

Superior Court of Ventura County (1996) 49 Cal.App.4th 1108, 1117).

However, in all of these prior cases, an official procedure was under

way, or a prosecution was being contemplated, before the statements held to

be protected activity under the anti-SLAPP statute were made. As a result,

2

those statements were naturally considered to be “made in connection

with . . . an issue under consideration or review by . . . any . . . official

proceeding.” (Code Civ. Proc., § 425.16, subd. (e)(2).) That is not the case

here. When Officer Fletes responded to the call for police assistance in this

case, there was no prosecution or other official proceeding in progress or even

in contemplation. It is therefore hard to see how the statements that Officer

Fletes made in responding to the call were “made in connection with . . . an

issue under consideration” in an official proceeding.

Nor, to my knowledge, has any prior case held that the anti-SLAPP

statute protects a statement made in connection with an issue under

consideration by an official proceeding not yet even contemplated. The City’s

counsel suggested that there was a possibility of future prosecution against

Mr. Alexander, but counsel offered no reason why the anti-SLAPP statute

should be interpreted to apply because of such a possibility. The majority

likewise offers no reason, and I do not see any.

As a consequence, I would follow what appears to be the plain language

of the anti-SLAPP statute and conclude that the statements made by Officer

Fletes in responding to the call for assistance in this case are not protected

speech or petitioning activity under the anti-SLAPP statute.

3

____________________________

BROMBERG, J.

Alexander v. City of Santa Cruz

H051774