The opinion
Filed 4/25/23 Ewing v. County of Los Angeles CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CHRISTOPHER EWING, B314722
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV46286)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
GA Law Group, George E. Akwo; Bitton & Associates and
Ophir J. Bitton for Plaintiff and Appellant.
Collins + Collins, Tomas A. Guterres, Chandler A. Parker,
James C. Jardin for Defendant and Respondent.
INTRODUCTION
Appellant Christopher Ewing was convicted of robbery in
2004. The criminal court conducted a bench trial on the
allegation that two prior convictions for aggravated robbery in
Colorado qualified as serious or violent felonies under the
meaning of the three strikes law. Finding that they did, the
criminal court sentenced Ewing to 25 years to life in prison.
In 2019, this court granted Ewing’s petition for habeas
corpus, finding that Ewing’s appellate counsel rendered
ineffective assistance by failing to challenge the sufficiency of the
evidence that the prior Colorado convictions qualified as serious
felonies under California law. The matter was remanded for
resentencing. Ewing was resentenced to five years, credited with
time served, and released a few days later.
Ewing sued the County of Los Angeles and others, based on
two alleged wrongs: first, that District Attorney’s office
employees failed to properly investigate the Colorado convictions
to determine if they should count as strikes under California law,
and second, that the Sheriff’s Department employees responsible
for the County jail failed to release Ewing in a timely manner
after his resentencing.
Focusing on the first set of allegations only, the County
filed a special motion to strike under the anti-SLAPP statute,
Code of Civil Procedure section 425.16.1 The County asserted
that the work of prosecutors and other County employees
involved in the criminal case constituted protected activity, and
1 “SLAPP” stands for “strategic lawsuits against public
participation.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7
Cal.5th 133, 139.) All further section references are to the Code
of Civil Procedure unless otherwise indicated.
2
Ewing’s claims could not succeed due to the litigation privilege
and governmental immunity. The superior court granted the
motion, and Ewing appealed.
We affirm. All activity relating to a criminal prosecution
constitutes protected activity under section 425.16, subdivision
(e). In addition, Ewing cannot meet his burden to show a
probability of success because the County employees’ actions are
privileged.
FACTUAL AND PROCEDURAL BACKGROUND
A. Conviction and habeas proceeding
As stated in the nonpublished opinion affirming Ewing’s
conviction, People v. Ewing (June 8, 2005, B175757), in March
2003 Ewing entered a pharmacy and gave the clerk a written
demand for money; Ewing left with cash, prescription medication,
and the clerk’s watch and jewelry. Following a jury trial, Ewing
was convicted of one count of robbery in violation of Penal Code
section 211. Division Five of this District affirmed the conviction.
In 2019, Division Five of this District granted Ewing’s
petition for habeas corpus in the nonpublished opinion In re
Ewing (Oct. 2, 2019, B297362). The proceedings relevant to
Ewing’s sentence were described as follows: “After a 2004 jury
convicted petitioner Christopher Ewing of robbery (Pen. Code,
§ 211),[ ] the trial court conducted a bench trial on the People’s
allegation that he had suffered two prior convictions for serious
or violent felonies within the meaning of sections 667,
subdivisions (b) through (i) and 1170.12, subdivisions (a) through
(d). During the bench trial, the People introduced certified
documents from Colorado showing petitioner pled guilty to
aggravated robbery (Colo. Rev. Stat. § 18-4-302) on March 25,
1987, in Arapahoe County and again on March 30, 1987, in
3
Adams County. Petitioner, who represented himself at trial,
argued the Colorado convictions did not qualify as serious or
violent felonies under California law. In particular, he argued
robbery in California, unlike aggravated robbery in Colorado,
requires intent to permanently deprive the owner of property.
“The trial court rejected petitioner’s argument. It inferred
petitioner had the intent to permanently deprive the owners of
property in the Colorado cases, based on a certified copy of the
judgments of conviction. In the Adams County case, the court
ordered ‘costs of $75.00/Victim Comp.’ In the Arapahoe County
case, the court ‘recommend[ed] restitution as a condition of parole
amount is $2850.00.’ Based on the order of restitution, the trial
court inferred petitioner intended to permanently deprive his
victims of property. Therefore, the trial court found petitioner
had suffered two prior serious felony convictions, and sentenced
him to 25 years to life in prison under the Three Strikes law.
“On appeal, petitioner was represented by appointed
counsel, who did not challenge the sufficiency of the evidence in
support of the trial court’s finding that petitioner’s prior Colorado
robbery convictions qualified as serious felonies, even though
petitioner specifically asked her to raise the issue. This court
affirmed the conviction and sentence on appeal, and the Supreme
Court denied review. (People v. Ewing (June 8, 2005, B175757)
[nonpub. opin.], review denied, S135599.) In the subsequent
years, petitioner filed multiple (unsuccessful) habeas petitions
arguing, among other things, that his prior Colorado convictions
were not serious felonies under California law and that his
appellate counsel was ineffective in failing to raise the argument.
“On December 1, 2017, petitioner filed yet another petition
for writ of habeas corpus with the Supreme Court, again arguing
4
that his Colorado convictions did not qualify as strikes under
California law because the Colorado crime does not contain all
the elements of robbery in California. Shortly thereafter, the
Supreme Court decided [People v. Gallardo (2017) 4 Cal.5th 120
(Gallardo)]. Gallardo holds that, in determining whether a prior
conviction constitutes a strike, a trial court may not make
findings about the conduct that realistically led to the defendant's
prior conviction. (Id. at p. 124.) Rather, it is limited to
‘identify[ing] those facts that were already necessarily found by a
prior jury in rendering a guilty verdict or admitted by the
defendant in entering a guilty plea.’ (Ibid.)
“On May 1, 2019, the Supreme Court issued an order to
show cause returnable in this court as to ‘why petitioner is not
entitled to relief pursuant to [Gallardo] and why Gallardo should
not apply retroactively on habeas corpus to final judgments of
conviction, or in the alternative, why appellate counsel did not
render ineffective assistance in failing to challenge on appeal the
sufficiency of the evidence to support a finding that petitioner's
prior Colorado robbery convictions qualified as serious felonies.”
(See People v. McGee (2006) 38 Cal.4th 682, 42 Cal.Rptr.3d 899,
133 P.3d 1054; People v. Rodriguez (1998) 17 Cal.4th 253, 261-
262, 70 Cal.Rptr.2d 334, 949 P.2d 31.)’
“In accordance with the Supreme Court’s instructions, we
consider petitioner’s arguments on their merits. [Citation.] We
conclude appellate counsel rendered ineffective assistance when
she failed to challenge the sufficiency of the evidence in support
of the trial court’s finding that petitioner’s prior Colorado robbery
convictions qualified as serious felonies under California law.
Because counsel was ineffective in failing to challenge the prior
strike finding under law existing at the time of sentencing, we do
5
not reach the question of Gallardo’s retroactivity on habeas
corpus to final judgments of conviction.” (In re Ewing, supra,
B297362.)
In re Ewing noted that when Ewing was sentenced in 2004,
“the People were required to proffer sufficient evidence ‘“from
which the court [could] reasonably presume that an element of
the crime was adjudicated in the prior conviction. [Citations.]”’
(People v. Zangari [(2001)]89 Cal.App.4th [1436,] 1440, 108
Cal.Rptr.2d 250.) In this case, the trial court concluded
petitioner intended to permanently deprive his victims of
property based on the judgments of conviction in the two
Colorado cases. In one case, the court ordered ‘costs of
$75.00/Victim Comp.’ In the other case, it ‘recommend[ed]
restitution as a condition of parole amount is $2850.00.’” (In re
Ewing, supra, B297362.)
In re Ewing recognized that in Colorado “restitution” could
encompass any pecuniary loss suffered by a victim: “Colorado
courts have authorized restitution for $2,925 in lost wages, where
a theft victim took six and one-half days off work to investigate
the theft. (People v. Henson (2013) 307 P.3d 1135, 1138-1139.)
The Colorado Court of Appeals has also approved restitution for
an extortion victim’s moving expenses, where the move was
occasioned by defendant and his at-large accomplice’s extortion
threat. (People v. Bryant (2005) 122 P.3d 1026, 1027-1028.)” In
re Ewing stated, “The judgments of conviction proffered by the
People in this case do not indicate why petitioner was ordered to
pay restitution. Because the documents do not identify the
nature or source of the loss to be compensated, and because the
People did not offer any other evidence in support of the prior
strike allegations, the trial court could not reasonably assume the
6
amounts represented monies or property taken during the
robberies themselves.” (In re Ewing, supra, B297362.)
In re Ewing concluded, “As there was insufficient evidence
to support the trial court’s finding that petitioner’s Colorado
convictions qualified as prior strikes, an appellate challenge
would have been successful. . . . Accordingly, we conclude
counsel’s failure to argue the insufficiency of the evidence in
support of the sentencing court's prior strike findings ‘“fell below
an objective standard of reasonableness”’ and that but for
counsel’s error, petitioner would have obtained a more favorable
outcome on appeal.” The court granted Ewing’s petition for writ
of habeas corpus, and remanded the matter to the trial court
“with directions to vacate its finding that petitioner had suffered
two prior convictions for serious or violent felonies within the
meaning of [the three strikes law] and resentence petitioner
accordingly.” (In re Ewing, supra, B297362.)
B. This proceeding
1. Complaint and FAC
In December 2020, Ewing sued the County and others. The
first amended complaint (FAC), filed on March 26, 2021, is the
operative complaint for purposes of this appeal; we focus on the
allegations therein.
Ewing sued the County, the Los Angeles County Sheriff,
former District Attorney Steve Cooley, three individuals
identified with the title “DDA,” and the attorney who represented
him in his direct appeal. Ewing identified “DDAs” as deputy
district attorneys working under Cooley, and also as “employees
at [the] District Attorney’s office”; he did not identify the specific
roles of the three named defendants identified as DDAs. Ewing’s
allegations focused on two discrete contentions: first, that the
7
District Attorney and related defendants failed to adequately
investigate whether Ewing’s out-of-state felony convictions
should count as strikes under the three strikes law, and second,
that the Sheriff and related defendants wrongfully delayed
releasing Ewing, who had been ordered to be released but was
nonetheless kept in jail for several additional days. We will call
these two sets of allegations “the sentencing allegations” and “the
jail allegations” respectively.
Regarding the sentencing allegations, Ewing alleged the
County “and its DDAs owed a duty as prosecutors to properly
investigate whether Ewing’s [Colorado] convictions were portable
as strikes into [California under the] Three Strikes Law before
filing charges against Ewing in Court for the [California]
robbery.”2 He asserted that the defendants did not do so, and
“[t]his failure in investigation . . . breached [the defendants’]
duties to the Court and to Ewing.” Ewing alleged that deputy
district attorneys relied on “the fruit of their shoddy
investigation” to convince the trial court that the Colorado
convictions constituted strikes. He further alleged that his
appointed appellate attorney refused to challenge the factual
basis for the strikes, “even though Ewing specifically asked,
pleaded and begged her to raise the issue.” Ewing alleged,
“Without the two [Colorado] priors being allowed, Ewing would
only have had to serve a total of perhaps 2 to 2.5 years in prison,”
rather than the 16.8 years he actually served.
Regarding the jail allegations, Ewing alleged that in
December 2019 he was transferred from state prison to the
2 Throughout the record and briefing, Ewing set out certain
party names in all capital letters. For readability, we have
eliminated this use of capitalization in quotations.
8
custody of the Sheriff’s Department so he could attend his
resentencing hearing. Ewing alleged that on December 9, 2019,
he was resentenced, credited with time served, and placed on
parole. Ewing alleged he was then transferred back to jail, and
rather than being processed and released, he was held for an
additional five days. Ewing alleged he had to resort to the
assistance of the Innocence Project before the Sheriff’s
Department finally agreed to release him on December 13, 2019.
Ewing alleged 11 causes of action against the various
defendants: (1) violation of civil rights under the California
Constitution against all defendants; (2) liability under 42 U.S.C.
section 1983 (section 1983) against sheriff’s deputy defendants;
(3) liability under section 1983 pursuant to Monell v. New York
City Dept. of Social Services (1978) 436 U.S. 658 (Monell)3 against
the County; (4) false imprisonment against all defendants except
appellate counsel, relating to the delay in Ewing’s release; (5)
breach of duty to release Ewing against the County and the
State; (6) false imprisonment based on an illegal sentence against
all defendants except appellate counsel; (7) negligent handling of
a legal matter against appellate counsel; (8) intentional infliction
of emotional distress against all individual defendants; (9)
negligence against all defendants; and (10) declaratory and
injunctive relief against the County and the State; and (11)
unfair business practices under Business and Professions Code
3 Monell holds that a municipal or county entity cannot be
held liable under section 1983 on a respondeat superior theory.
(Monell, supra, 436 U.S. at p. 691.) However, “[l]ocal governing
bodies . . . can be sued directly under § 1983 [where] the action
that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” (Id. at p. 690.)
9
section 17200 against appellate counsel. Ewing prayed for
general damages, special damages, punitive damages, attorney
fees, penalties, costs, and other relief.
2. Anti-SLAPP motion
The County filed a special motion to strike the causes of
action for (1) violation of civil rights; (3) Monell liability under
section 1983; (6) false imprisonment based on an illegal sentence;
(9) negligence; and (10) declaratory and injunctive relief.
(§ 425.16.) The County stated that it was challenging each cause
of action based on the sentencing allegations, which attributed
wrongdoing to the prosecutors who handled Ewing’s criminal
case.4 The County asserted that the challenged causes of action
“‘arise from’ the conduct of district attorneys in connection with a
judicial proceeding. The County prosecutors were necessarily
engaged in protected speech activity when advocating on behalf
of the State during [Ewing’s] criminal prosecution.” The County
noted that Ewing claimed his excessive sentence was “caused by
the failure of the County and its Deputy District Attorneys to
properly investigate the facts and law relating to his prior felony
convictions in Colorado,” “the Deputy District Attorney’s conduct
4 The County included the second cause of action in its
motion, and the superior court granted the motion as to the
second cause of action, even though this cause of action was
based only on the jail allegations and was asserted against
Sheriff’s Department defendants. We asked the parties for
supplemental briefing discussing how this court should address
the superior court’s ruling as to the second cause of action. The
County and Ewing agreed that the County’s special motion to
strike did not address the jail allegations, so the court’s inclusion
of this cause of action in its order was erroneous and did not
dispose of the second cause of action.
10
of introducing certified documents from Colorado into evidence”
during Ewing’s sentencing, and the attorney “otherwise
advocating that the prior convictions qualify” as strikes under the
three strikes law.
The County asserted that Ewing’s claims therefore arose
from protected activity under section 425.16, subdivision (e).
That subdivision states that protected activity includes (1)
written or oral statements made before a judicial proceeding, (2)
written or oral statements made in connection with an issue
under consideration or review by a judicial body, or any other
official proceeding authorized by law, (3) written or oral
statements made in a public forum in connection with an issue of
public interest. (§ 425.16, subd. (e).)
The County further contended that Ewing could not
demonstrate a probability of success on his claims. It argued that
the deputy district attorneys’ and County’s actions were immune
from liability by statute. (See Govt. Code, §§ 821.6 [“A public
employee is not liable for injury caused by his instituting or
prosecuting any judicial or administrative proceeding within the
scope of his employment, even if he acts maliciously and without
probable cause.”], 815.2, subd. (b) [“a public entity is not liable for
an injury resulting from an act or omission of an employee of the
public entity where the employee is immune from liability”].)
The County also argued that all communication relating to the
judicial proceeding was privileged under the litigation privilege
in Civil Code section 47. Furthermore, the County asserted that
prosecutors are entitled to absolute immunity under federal
common law.
11
3. Opposition
Ewing filed a motion seeking “limited discovery on [the
County’s] investigation of the facts and the applicability of [the]
Colorado felonies, and “limited discovery into the reasonableness
of [the County’s] actions/inactions to secure [Ewing’s] release”
following the resentencing. Ewing asserted that the discovery
was necessary to oppose the County’s motion. The hearing on
Ewing’s discovery motion was set for October 4, 2021, and the
hearing on the special motion to strike was set for June 17, 2021,
so Ewing filed an ex parte application seeking to continue the
hearing on the special motion to strike until after the discovery
motion was heard. The County opposed the ex parte application,
and the superior court denied it.
In his opposition to the special motion to strike, Ewing
asserted, in a single sentence argument, that his claims did not
arise out of protected activity because his claims were “not about
[County] employees’ communicative and advocacy conduct inside
the courtroom during Ewing’s prosecution, but [the County’s] out
of court investigation as to whether the [Colorado] felonies were
factually importable” as strikes under California law.
Ewing also argued that his claims had a probability of
success because according to federal law, “absolute immunity
may not apply when a prosecutor is not acting as ‘an officer of the
court,’ but is instead engaged in other tasks, say, investigative or
administrative tasks.” (Van de Kamp v. Goldstein (2009) 555
U.S. 335, 342, quoting Imbler v. Pachtman (1976) 424 U.S. 409,
431 fn. 33.) Ewing further contended that immunity under
Government Code 821.6 applies only to malicious prosecution
claims, which he had not alleged. He also asserted that
prosecutorial immunity did not extend to claims under section
12
1983 and Monell. The County filed a reply in support of its
motion.
4. Hearing and ruling
At the hearing on the motion, counsel for the County
submitted on the papers. Counsel for Ewing argued briefly that
“there is a distinction between the adversarial role of a
prosecutor and the investigator role and that different
immunities lie.” The court took the matter under submission.
The superior court granted the motion in a short written
ruling. It stated, “The actions taken by the County – as alleged –
are protected activities which are subject to an anti-SLAPP
motion. Defendants meet their [sic] burden. Burden shifts to the
plaintiff.” The court continued, “Plaintiff’s ability to demonstrate
probability of prevailing is limited by the litigation privilege.
Civil Code 47(b) – no liability can result from communications
made in judicial or quasi-judicial proceedings by litigants or
participants authorized by law to achieve the objects of the
litigation; and that have some connection or logical relation to the
action. SILBERG V ANDERSON (1990) 50 Cal.3d 205, 212. [¶]
IMBLER V PACHTMAN (1976) 424 U.S. 409, 430. A
prosecutor’s functions that are protected by absolute immunity
include initiating a prosecution and presenting the State’s case.”
Ewing timely appealed.
DISCUSSION
A. Anti-SLAPP and standard of review
“A cause of action arising from a person’s act in furtherance
of the ‘right of petition or free speech under the United States
Constitution or the California Constitution 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
13
is a probability’ that the claim will prevail.” (Monster Energy Co.
v. Schechter (2019) 7 Cal.5th 781, 788, citing § 425.16, subd.
(b)(1).) Section 425.16, subdivision (e) describes four categories of
acts “in furtherance of a person’s right of petition or free speech”:
“(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement
or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law, (3) any written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, 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, subd. (e).)
“Anti-SLAPP motions are evaluated through a two-step
process. Initially, the moving defendant bears the burden of
establishing that the challenged allegations or claims ‘aris[e]
from’ protected activity in which the defendant has engaged.”
(Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1061 (Park).) “If the defendant carries its burden,
the plaintiff must then demonstrate its claims have at least
‘minimal merit.’” (Ibid.)
“We review de novo the grant or denial of an 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. [Citations.] In
addition to the pleadings, we may consider affidavits concerning
the facts upon which liability is based. [Citations.] We do not,
14
however, weigh the evidence, but accept plaintiff’s submissions as
true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of
law.” (Park, supra, 2 Cal.5th at p. 1067.) The appellant bears
the burden of affirmatively demonstrating error. (Balla v. Hall
(2021) 59 Cal.App.5th 652, 671.)
B. First step: protected activity
1. Legal standards
In the first step under the anti-SLAPP analysis, the court
determines whether the plaintiff’s claims arise from protected
activity. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009.) At this stage, the “defendant’s burden is to identify
what acts each challenged claim rests on and to show how those
acts are protected under a statutorily defined category of
protected activity.” (Ibid.) “A claim arises from protected activity
when that activity underlies or forms the basis for the claim.”
(Park, supra, 2 Cal.5th at p. 1062.) “[I]n ruling on an anti-
SLAPP motion, courts should consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Id. at p.
1063.) Thus, “a claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for
which liability is asserted.” (Id. at p. 1060.)
2. Analysis
It is well established that communications in preparation
for and during a court proceeding, such as a criminal prosecution,
are protected activity under section 425.16. “[P]lainly read,
section 425.16 encompasses any cause of action against a person
arising from any statement or writing made in, or in connection
15
with an issue under consideration or review by, an official
proceeding or body.” (Briggs v. Eden Council for Hope and
Opportunity (1999) 19 Cal.4th 1106, 1113 (Briggs); see also
Contreras v. Dowling (2016) 5 Cal.App.5th 394, 409 [“‘all
communicative acts performed by attorneys as part of their
representation of a client in a judicial proceeding or other
petitioning context are per se protected as petitioning activity by
the anti-SLAPP statute’”].)
Ewing asserts that because investigation into the Colorado
felonies may have been conducted by non-prosecutors and/or was
conducted outside the courtroom, these actions do not constitute
protected activity under section 425.16, subdivision (e). The case
law does not support this position. “‘[J]ust as communications
preparatory to or in anticipation of the bringing of an action or
other official proceeding are within the protection of the litigation
privilege of Civil Code section 47, subdivision (b) [citation], . . .
such statements are equally entitled to the benefits of section
425.16.’” (Briggs, supra, 19 Cal.4th at p. 1115, quoting Dove
Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th
777, 784; see also Hansen v. California Dept. of Corrections and
Rehabilitation (2008) 171 Cal.App.4th 1537, 1544
[“communications preparatory to or in anticipation of the
bringing of an official proceeding are within the protection of
section 425.16”]; Zucchet v. Galardi (2014) 229 Cal.App.4th 1466,
1477 [statements to prosecutors in preparation for trial are
protected as statements “made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body” under section 425.16, subdivision (e)(2)]; Dickens v.
Provident Life & Accidents Ins. Co. (2004) 117 Cal.App.4th 705,
714 [“contact with the executive branch of government and its
16
investigators about a potential violation of law” constitutes
protected activity under section 425.16]; Siam v. Kizilbash (2005)
130 Cal.App.4th 1563, 1570 [“Communications that are
preparatory to or in anticipation of commencing official
proceedings come within the protection of the anti-SLAPP
statute”].)
Ewing argues that if we hold that the County’s actions
relating to the Colorado convictions constitute protected activity
under section 425.16, it “will be tantamount to this Court saying
that any conduct by [the County] in investigating and
prosecuting a crime would be ‘protected activity’ no matter what.”
However, aside from a few narrow exceptions not relevant here,5
that is indeed the gist of the well-established law.
Ewing compares this case to Laker v. Board of Trustees of
California State University (2019) 32 Cal.App.5th 745 (Laker) to
support his argument that an investigation—as opposed to
statements in court—is not necessarily protected activity. The
comparison is not apt. In Laker, a professor, Laker, sued the
defendant university and others alleging retaliation and
defamation based in part on an internal investigation regarding
another professor, Aptekar. The university filed a special motion
to strike, which the trial court denied. The Court of Appeal
partially reversed. It noted that “internal investigations by
schools into claims of discrimination qualify as ‘official
proceedings authorized by law’ that receive the protections of the
anti-SLAPP statute.” (Laker, supra, 32 Cal.App.5th at p. 765.)
Turning to whether Laker’s claims “arose from” protected
5 For example, filing a false police report does not constitute
protected activity under section 425.16. (See Lefebvre v. Lefebvre
(2011) 199 Cal.App.4th 696, 703.)
17
activity, the court stated, “Here, we have little difficulty in
finding that the speech alleged in the defamation claim—the
statements . . . made to investigators during the internal
investigation—are not merely ‘evidence’ of the claim but rather
form the basis of Laker’s defamation claims.” (Id. at p. 767.)
Regarding Laker’s retaliation claim, however, the Court of
Appeal reached a different conclusion. The court noted,
“According to the allegations in his complaint, the University
subjected Laker to the burden of three meritless investigations
and denied him access to the president of the University. While
Laker will no doubt need to use speech by University employees
as evidence to support his claims, the speech is not—by itself—
the basis of the claim.” (Laker, supra, 32 Cal.App.5th at p. 773.)
The court emphasized again later in the opinion, “Laker’s
retaliation cause of action is premised on his allegation that the
University’s decision to pursue three ‘meritless’ investigations of
Laker was itself conduct in retaliation for actions Laker had
previously taken in the Aptekar investigation. According to
Laker, the University’s investigations into his own conduct was
(sic) not a good-faith investigation into employee wrongdoing but
itself constituted a retaliatory action.” (Id. at p. 776.) Because
Laker’s cause of action was based on the university’s decision to
use an investigation as a retaliatory instrument—rather than on
communication involved in the investigation itself—the Laker
court held that this cause of action did not arise from protected
activity. (Id. at p. 777.)
Ewing argues that as in Laker, “the decision to investigate
rather than statements made during the investigation form the
gravamen” of the claims here. We disagree with this
representation of his allegations. Ewing did not allege he was
18
harmed by a bad-faith decision to investigate his Colorado
convictions, as was the claim in Laker. To the contrary, the FAC
alleges the investigation itself was “inadequate” because the
County “failed to procure the full and complete records” of the
Colorado cases which were “necessary and required for a decision
to be made as to whether the [Colorado] convictions should count
as felony strikes in California.” Ewing alleges he was harmed
because the prosecutors conveyed the results of the allegedly
shoddy investigation to the criminal court in charging documents
and during the sentencing hearing, which is unquestionably
protected activity. Ewing also cites no authority suggesting that
any aspect of investigations relating to crime, sentencing, or
other litigation falls outside the scope of protected activity under
section 425.16.
Thus, Ewing’s claim arises from the protected activity
inherent in preparing a criminal complaint, preparing for the
sentencing hearing, and presenting information during criminal
proceedings, all of which constitute protected activity under
section 425.16, subdivision (e).6
C. Second step: minimal merit
1. Legal standards
After a moving defendant carries its burden to show that
the plaintiff’s claims arise from protected activity, the plaintiff
“must then demonstrate its claims have at least ‘minimal merit.’”
6 Ewing, apparently misunderstanding the scope of the
County’s motion and the scope of this appeal, recites his
allegations about his delayed release and argues that the
deputies’ “retaliatory harassment” is not protected activity under
§ 425.16. Because the jail allegations were not the target of the
special motion to strike or the superior court’s ruling, we do not
address these contentions.
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(Park, supra, 2 Cal.5th at p. 1061.) Thus, the court “must
determine whether plaintiff has demonstrated a probability of
prevailing on the merits. To do so, plaintiff must state and
substantiate a legally sufficient claim.” (Finton Construction,
Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 211.)
Ewing asserts the superior court erred in finding the
County’s actions privileged. He contends that “neither [the
County] nor the Trial Court showed how the investigation itself
(not statements made during the investigation), were [privileged
as] statements made [in] an official proceeding.”
Ewing misunderstands the applicable burden. A cause of
action arising from protected activity will be stricken unless “the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1),
emphasis added.) “If the plaintiff fails to meet that burden, the
court will strike the claim.” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884, emphasis added.) Here, neither the
court nor the County had the burden to show that Ewing’s claims
had a probability of prevailing.7 We discuss the applicable
privileges below.
7 As our colleagues in Division Seven have recognized,
“[t]here is some dispute in the case law as to which party bears
the burden of proof on an affirmative defense in the context of an
anti-SLAPP motion.” (Dickinson v. Crosby (2017) 17 Cal.App.5th
655, 683.) “Some cases state that ‘although section 425.16 places
on the plaintiff the burden of substantiating its claims, a
defendant that advances an affirmative defense to such claims
properly bears the burden of proof on the defense.’” (Ibid.)
Others suggest that an affirmative defense is “‘a substantive
defense a plaintiff must overcome to demonstrate a probability of
prevailing.’” (Ibid.) Here, although the County relies on
20
2. Litigation privilege under Civil Code section 47
The superior court held that the County’s actions were
protected by litigation privilege under Civil Code, section 47. “A
plaintiff cannot establish a probability of prevailing if the
litigation privilege precludes the defendant’s liability on the
claim.” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236
Cal.App.4th 793, 814.) Ewing asserts that “the investigation
itself . . . is not communicative as litigation privilege case law
requires.” He interprets the litigation privilege too narrowly.
The litigation privilege under Civil Code, section 47
“applies to any communication (1) made in judicial or quasi-
judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that [has] some connection or logical relation to the action.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege
“applies to any publication required or permitted by law in the
course of a judicial proceeding to achieve the objects of the
litigation, even though the publication is made outside the
courtroom and no function of the court or its officers is involved.”
(Ibid.) “In its application to communications made in a ‘judicial
proceeding,’ section 47(b) is not limited to statements made in a
affirmative defenses, we need not address this issue. On the
record here, the county’s affirmative defenses of litigation
privilege, privilege under sections of the Government Code, and
immunity from suit under Monell and section 1983 all mean that
Ewing’s claims have no probability of prevailing, regardless of
how the burden of proof is assigned. (See ibid. [“[w]hat is
important is that, regardless of the burden of proof, the court
must determine whether the plaintiff can establish a prima facie
case of prevailing, or whether the defendant has defeated the
plaintiff's evidence as a matter of law”].)
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courtroom. Many cases have explained that section 47(b)
encompasses not only testimony in court and statements made in
pleadings, but also statements made prior to the filing of a
lawsuit, whether in preparation for anticipated litigation or to
investigate the feasibility of filing a lawsuit.” (Hagberg v.
California Federal Bank (2004) 32 Cal.4th 350, 361.) Moreover,
“‘the privilege protect[s] communications to or from governmental
officials which may precede the initiation of formal proceedings.’”
(Id. at p. 362.) Thus, we are unpersuaded by Ewing’s attempt to
separate the County’s alleged preparation of charging documents
and statements made at the sentencing hearing from the
investigation inherent in the preparation for those events. All
such activities are privileged under Civil Code, section 47.
3. Privilege under the Government Code
Ewing also contends privilege under various Government
Code sections does not apply. However, in his opening brief he
makes this argument only in relation to his jail allegations
against the deputies. Those claims were not addressed in the
County’s special motion to strike. To the extent Ewing contends
that privilege under the Government Code does not apply to the
County in relation to the sentencing allegations, he has forfeited
any such argument. (See, e.g., Safeway Wage & Hour Cases
(2019) 43 Cal.App.5th 665, 687 fn. 9 [failure to raise argument in
opening brief constitutes forfeiture].)
Nevertheless, we note briefly that “[a] public employee is
not liable for injury caused by his instituting or prosecuting any
judicial or administrative proceeding within the scope of his
employment, even if he acts maliciously and without probable
cause.” (Gov. Code, § 821.6.) Moreover, “[a]cts taken during an
investigation prior to the institution of a judicial proceeding are .
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. . protected by section 821.6 because investigations are an
essential step toward the institution of formal proceedings.”
(County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th
218, 229; see also Amylou R. v. County of Riverside (1994) 28
Cal.App.4th 1205, 1209-1210.) The County is shielded from
liability as well: “Except as otherwise provided by statute, a
public entity is not liable for an injury resulting from an act or
omission of an employee of the public entity where the employee
is immune from liability.” (Gov. Code, § 815.2, subd. (b).)
4. Immunity under section 1983 and Monell
Ewing also argues that specifically in the context of section
1983, “prosecutorial immunity does not apply to all prosecutorial
conduct.” Ewing suggests—but does not actually assert—that
California statutory privileges do not apply to section 1983
claims. (See, e.g., Arce v. Childrens Hospital Los Angeles (2012)
211 Cal.App.4th 1455, 1485 [“The United States Supreme Court
has repeatedly held that ‘a state law that immunizes government
conduct otherwise subject to suit under § 1983 is preempted”].)
The County’s respondent’s brief fails to address immunity for
section 1983 claims, immunity under the federal cases Ewing
cites,8 or immunity relevant to Ewing’s Monell claim.
We therefore asked the parties for supplemental briefing.
Because Ewing’s Monell claim included the County as the sole
defendant, and was based on alleged policies and practices of the
District Attorney, we specifically asked the parties to address
case law holding that a district attorney acting in his or her
official capacity is an agent of the state (not a county) for
8 The County instead asserts that “common law prosecutorial
immunity” applies, relying almost entirely on California case law
and ignoring all but one of the federal cases Ewing cites.
23
purposes of section 1983 (see Pitts v. County of Kern (1998) 17
Cal.4th 340, 362, 366), and state officers sued in their official
capacity are not considered persons who may be liable under
section 1983 (see County of Los Angeles v. Superior Court (2009)
181 Cal.App.4th 218, 233.)
In his supplemental brief, Ewing conceded the County is
immune from liability in this context under section 1983. He
nevertheless argued that someone other than the prosecutors
may have conducted the allegedly inadequate investigations, and
those persons may be liable. However, Ewing has not alleged
this cause of action against any individual defendants, nor could
he—Monell liability is based on governmental policy, not the
actions of individuals. (See, e.g., Arista v. County of Riverside
(2018) 29 Cal.App.5th 1051, 1064 [To establish Monell liability, a
plaintiff must identify the challenged policy, practice, or custom;
attribute it to the governmental body itself; and show a causal
link between the execution of the policy, practice, or custom, and
the injury suffered].) Because the Monell claim was asserted
against the County alone, and Ewing concedes the County cannot
be liable under section 1983 under the circumstances here, Ewing
has failed to demonstrate that his Monell cause of action has
minimal merit.
Ewing’s claims arise from protected activity, and he has not
demonstrated a probability of prevailing on the merits. The
superior court therefore did not err in granting the County’s
special motion to strike.
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DISPOSITION
The court’s order is affirmed. The County is entitled to its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
DAUM, J.
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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